As a responsibly armed American, you already know how challenging it can be to stay up to date on proposed legislation and gun laws…
But you’re in luck. We’ve gathered some information about red flag laws. Read on to learn more about what red flag laws are and where they currently exist.
What Is a Red Flag Law?
Red flag laws are state laws that are known by various names, including “Extreme Risk Protection Orders (ERPOs),” “gun-violence restraining orders” and “risk warrants.” They allow law enforcement, family members and even medical professionals in some states to petition the court to temporarily remove firearms and ammunition from a person who is believed to present a danger to himself or herself or others.
A judge rules and, if the order is signed, law enforcement confiscates the firearms and ammunition from the person. The person also loses any concealed carry permits he or she may have and is prohibited from purchasing or possessing firearms, typically for up to one year.
Why Are They Controversial?
One reason red flag laws are controversial is because, in some states, the person that is the subject of the order has no knowledge of the petition or order. Therefore, there is no ability to defend himself or herself against the accusation prior to the property being confiscated and losing the rights to purchase or possess firearms.
A person who has not committed a crime has his or her guns confiscated, seemingly in violation of the constitutional right to due process. There is typically a full hearing within 21 days, at which the subject of the order may present his or her own evidence or respond to any evidence presented.
There is also a concern regarding the opportunity for these petitions to be abused or “weaponized” by former partners or family members. Some states, like Rhode Island, have created penalties for providing false evidence. In addition, the subject of the order is presumed to be guilty and forced to go to court to prove his or her innocence.
Which States Have Them?
As of July 1, 2020, there will be 19 states and the District of Columbia with red flag laws. They include the following:
- California — Allows family members to petition the court
- Colorado (went into effect on January 1, 2020)
- Connecticut — The first state to adopt a red flag law, Connecticut adopted the law in 1999. A state’s attorney or any two police officers may file a complaint.
- District of Columbia
- Hawaii (went into effect on January 1, 2020) — In addition to law enforcement and family or household members, medical professionals, educators or colleagues may file a petition.
- Maryland — In addition to law enforcement and family or household members, medical professionals are allowed to file petitions.
- Nevada (went into effect on January 1, 2020)
- New Jersey
- New Mexico (goes into effect on July 1 ,2020)
- New York — In addition to law enforcement and family or household members, school administrators or their designees may file a petition.
- Rhode Island
- Virginia (goes into effect on July 1 ,2020)
The New York law, passed in 2019, includes an appeals process, a prompt evidentiary hearing and provides a burden on the petitioner to meet a certain standard of evidence. Additional states regularly have red flag bills under consideration. A federal bill has been discussed that would set up a grant program to assist states in adopting red flag laws. Local law enforcement agencies could use those funds to hire and consult mental health professionals before issuing Extreme Risk Protection Orders.
To learn more about handgun and concealed carry laws in your state, visit the USCCA’s Concealed Carry and U.S. Gun Laws Map.
The information contained on this website is provided as a service to USCCA, Inc. members and the concealed carry community and does not constitute legal advice. Although we attempt to address all areas of concealed carry laws in all states, we make no claims, representations, warranties, promises or guarantees as to the accuracy, completeness or adequacy of the information disclosed. Legal advice must always be tailored to the individual facts and circumstances of each individual case. Laws are constantly changing, and, as such, nothing contained on this website should be used as a substitute for the advice of a lawyer.