Introduction
Red flag laws, also known as Extreme Risk Protection Orders (ERPO), allow law enforcement, family members, and healthcare professionals to petition a court to remove firearms from individuals who pose a significant risk to themselves or others. Since they first appeared in 1999, red flag laws have become an increasingly popular tool in the fight against gun violence. As of August 2021, 19 states and the District of Columbia have enacted red flag laws to prevent tragedies before they occur.
An informative overview
Red flag laws allow concerned individuals to report someone they believe could be dangerous and who may use a firearm to harm themselves or others. When a report is filed, a judge will review the evidence and determine whether to issue a temporary order that temporarily removes the individual’s firearms. This action typically requires a high burden of proof. After an initial investigation, the judge will decide whether to extend the order for up to a year. During that period, law enforcement and the courts can closely monitor the person who has been found to be a risk.
Red flag laws have been implemented for a variety of reasons, but they are mainly intended to prevent gun violence and suicides, including mass shootings, domestic abuse, and stalking cases.
19 states in the U.S. have enacted red flag laws as of August 2021. These states are California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington, as well as Washington, D.C.
A comparative analysis
Three states have recently implemented different red flag laws, which provide a comparative analysis of the differences and similarities of these laws:
Colorado:
Colorado’s law, called the “Extreme Risk Protection Order,” permits the filing of ERPOs in a similar manner to other states. However, Colorado’s ERPO law has some distinctive elements, such as a requirement that the court hold an ERPO hearing within 14 days of a petition being filed, providing the alleged respondent with the right to counsel and representation by the public defender if they are unable to afford a lawyer.
California:
In California, a new bill went into effect in September 2020 that expanded red flag laws. Dubbed as AB61, this law expanded who can petition for a protective order, extended the duration of temporary orders, and allows for gun rights to be seized from individuals in specific instances where a person’s access to weapons presents a risk to public safety or family members’ psychological well-being.
Florida:
In the immediate aftermath of the Parkland shooting in 2018, Florida became the first state after the tragedy to enact a red flag law. The Florida law includes an unusual provision that allows law enforcement to confiscate firearms without a court order, and also requires a full hearing within 14 days of a petition being filed. Florida’s law is also unique in its allowance of family and household members, teachers, and mental health professionals to file a report.
A step-by-step guide
Here is a comprehensive step-by-step guide of how red flag laws work:
Step 1: Filing a report
A red flag report against an individual can be filed by law enforcement, family members, or healthcare professionals. The person filing the report must provide evidence that the person is a danger to themselves or those around them. The evidence needed could be based on behavior or specific threats made by the individual that suggest they are a high-risk individual. The individual making the report can also ask that the weapon be returned once they can prove the situation has been resolved.
Step 2: Temporary order
After the report is filed, a judge will review the evidence and determine whether to issue a temporary order removing the individual’s firearms. This process requires a significant burden of proof. If issued, the order is usually effective for around 14 to 21 days. During this time, law enforcement and the courts will investigate the matter further to determine whether the person should be prohibited from possessing firearms.
Step 3: Hearing
During this period, the respondent has the opportunity to appear at a hearing and contest the allegations. Both parties will present their evidence to the judge, and the judge will determine whether to issue a final order prohibiting the person from possessing firearms. If the judge decides to issue a final order, the temporary order will be made permanent for up to one year, and the firearms will be removed from the individual’s possession.
Step 4: Evaluation
After the final order is issued, the person reported is required to be evaluated by a mental health professional. If the person still presents a danger to themselves or others, the order can be extended beyond the initial 12 months.
A case study
The Parkland school shooting in Florida in 2018 is an example of an incident that led to the implementation of red flag laws. To date, the shooting was one of the deadliest school shootings in U.S. history. In response to that tragedy, Florida enacted its own red flag law.
The Florida red flag law has been credited with saving hundreds of lives. According to data from the Florida Department of Law Enforcement, between March 2018 and January 2019, there were 2,000 cases where firearms were removed from individuals for risk protection. Additionally, 467 individuals were successfully placed under a final order of protection, disallowing them from possessing guns for at least one year.
A debate-style article
The constitutionality and the ethical implications of red flag laws remain contested by some. While the laws have been proven to help prevent gun violence, the specific provisions of the laws themselves vary from state to state, making comparison and argument across multiple state constraints difficult.
Proponents of the law argue that it is a valuable tool in preventing mass shootings, suicides, and domestic violence. Opponents argue that the laws violate the Second Amendment right to bear arms, and that the potential for abuse exists, or that mental health professionals lack the expertise to determine the threat level of a person who may become violent.
However, Red flag laws may be constitutional. The courts have affirmed the constitutionality of these laws, citing the need to prevent harm to individuals and the public safety, as an overriding concern over a person’s right to possess a particular firearm.
An opinion piece
Red flag laws have the potential to save lives by preventing individuals who pose a serious threat to the public from acquiring firearms. Proponents argue that the laws allow for a rapid response to the warning signs that may result in a mass shooting. Meanwhile, opponents argue that they violate the Second Amendment and that they infringe on individual rights by allowing civil authorities to take control of firearms possession without proper due process.
While the laws have been proven to help prevent gun violence, the specific provisions of the laws themselves vary from state to state. Thus, it would be wise to review the current statutes and compare the various measures set out by each state’s laws.
Conclusion
Red flag laws have a vital role to play in improving America’s gun safety. By allowing for the early detection and intervention of high-risk individuals, these laws can prevent acts of gun violence before they occur. We encourage states across the country to implement red flag laws and continue to refine them for the benefit of their citizens. Although red flag laws remain controversial among some citizens, they are an essential tool worth considering for ensuring public safety.