A “red flag” law allows individuals to petition the court to issue a protective order, requiring the respondent to immediately relinquish all firearms and ammunition, and giving law enforcement the authority to seize firearms from people who are deemed by the court/judge to be a danger to themselves or others. Red flag laws are most commonly known as Extreme Risk Protection Orders (ERPOs), but are known in various states as Gun Violence Restraining Orders, Firearms Restraining Orders, Orders For Protection Against High-Risk Behavior and Lethal Violence Protective Orders.
Each state’s red flag law reads a little differently and allows different individuals the ability to file a petition. All states allow law enforcement to file petitions, but states may also allow mental health providers, family or household members, school administrators, co-workers, medical professionals or educators to file as well. Some states allow the seizure of all firearms, while others include ammunition as well. If the respondent is a concealed carry permit holder, that permit, as well as any firearm purchase permits and firearm registrations, would be suspended as part of the ERPO.
The initial orders in all states are allowed to be issued ex parte, meaning they are issued without notice to the respondent. The ex parte orders are issued for limited time periods of one to 21 days and are followed by a hearing where the respondent may contest the order. The judge may then issue a final order which typically lasts six months to a year, although it may be renewed. Exceptions to these timelines include New Jersey, where it lasts indefinitely until the respondent demonstrates that he/she is no longer a danger and California where, as of September 1, 2020, they may be issued for up to five years. Some states have included provisions in their ERPO laws making it a crime to file a false ERPO petition to deter individuals from abusing the process. Each state specifies the types of evidence that will be considered in order for the court to determine if an ERPO will be issued.
*The New Mexico red flag law goes went into effect in May 2020.
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