Red Flag Laws by State

Mass shootings are always followed by almost exactly the same response: a clamor against gun violence.

Sadly, there’s a strong bipartisan divide on how best to do so.

Political chaos ensues, with those on the Left demanding a total disregard for Americans’ Second Amendment right.

Meanwhile, those on the Right assert the words of our Founding Fathers – that such rights are “self-evident” – continuously thwarting all attempts at addressing the issue properly.

However, following the almost simultaneous mass shootings in Dayton and El Paso earlier this year, both sides seem to be remembering a bird needs both wings to fly with freedom.

Thus, Extreme Risk Protection Orders (ERPO), or “red flag laws” as they’re more commonly referred to as, is garnering bipartisan support and implementation.

What are ERPO/Red Flag Laws?

Both the official name and the pseudo-nickname are perfectly chosen.

Red flag laws allow for court orders to be issued for the temporary confiscation of firearms in cases where the holder is legally considered a risk to themselves and/or to others.

While the ins and outs differ slightly from one state to the next, the measure essentially gives law enforcement representatives – as well as family members – the ability to present an ERPO petition to a state court judge.

The petition must include reasonable evidence showing the individual truly does pose a risk to those around them and/or to himself or herself.

If the judge is satisfied with the evidence presented, he or she may then issue the court order temporarily confiscating the individual’s firearms and barring them from acquiring more until the order’s term reaches its conclusion.

Which States Already Implemented ERPO?

Although red flag laws garnered plenty of support from representatives of both the Republican and the Democratic parties (and have been around for over a decade), they haven’t been implemented in every state.

It isn’t yet certain whether they will, one day, be implemented countrywide.

Meanwhile, a major way in which local state implementations differ is in how long it takes for a court order to be issued.

In all states, an ex parte order may be issued immediately (at the state court judge’s discretion), which allows for the individual’s firearms to be confiscated until a final order is issued.

A hearing to determine whether that final order will be issued (and at which the individual may contest) must be held before the ex parte order’s expiration.

The duration of both the ex parte and final orders differs from state to state. As it currently stands, the following states have already implemented ERPO:

• California
• Colorado
• Connecticut (recently introduced by Senator Richard Blumenthal, Democratic)
• Delaware
• District of Columbia
• Florida
• Hawaii (going into effect on January 1, 2020)
• Illinois
• Indiana
• Maryland
• Massachusetts
• Nevada (going into effect on January 1, 2020)
• New Jersey (the only state offering an indefinite final order, with the proviso that the individual may attempt to prove themselves capable – under ERPO legislation – of regaining ownership of their firearms)
• New York
• Oregon
• Rhode Island
• Vermont
• Washington

Which States Are Currently Considering Red Flag Laws?

At the time of writing, another 5 states have ERPO legislation under consideration:

• Michigan
• Minnesota
• North Carolina
• Ohio
• Pennsylvania

Additionally, Senator Lindsey Graham, Republican, recently announced he’ll be introducing ERPO legislation for consideration in South Carolina.

Such a bill was already introduced in Texas but has not yet been taken up for consideration.

In January of this year, ERPO legislation was voted against in Virginia, so the state is unlikely to join the ranks just yet.

This came as a bit of a surprise for some, as Virginia is a Republican state and President Trump has spoken in support of the red flag laws.

Who is Permitted to Petition for an ERPO to be Issued?

As mentioned earlier, red flag law petitions may generally be submitted to a state court judge by family members and/or law enforcement.

In some states (detailed below), local legislation allows for other parties – such as teachers – to open a petition too.

Elsewhere, that ability is limited to law enforcement (often with the addition of a state attorney), meaning family members and other household members need to present an initial petition before it’s “escalated” to the state court level.

Here’s a complete list of persons permitted to petition for the temporary suspension of an individual’s Second Amendment rights (in the favor of public safety) in each of the states where red flag laws are implemented:

• California – family and other household members, as well as law enforcement
• Colorado – family and other household members, as well as law enforcement
• Connecticut – any 2 police officers (as co-petitioners) OR at least one state attorney
• Delaware – family and other household members, as well as law enforcement
• District of Columbia – family and other household members, as well as law enforcement and mental health professionals
• Florida – law enforcement only
• Hawaii – family and other household members, as well as law enforcement, medical professionals, teachers, and co-workers
• Illinois – family and other household members, as well as law enforcement
• Indiana – law enforcement only
• Maryland – family and other household members, as well as law enforcement and certain health professionals
• Massachusetts – family and other household members, as well as law enforcement
• Nevada – family and other household members, as well as law enforcement
• New Jersey – family and other household members, as well as law enforcement
• New York – family and other household members, as well as law enforcement and school administrators
• Oregon – family and other household members, as well as law enforcement
• Rhode Island – law enforcement only
• Vermont – state attorneys or the office of Vermont’s Attorney General
• Washington – family and other household members, as well as law enforcement

It’s not yet certain who would be permitted to open a petition under red flag law in Michigan, Minnesota, North Carolina, South Carolina, Ohio, Pennsylvania, or Tennessee should ERPO legislation be accepted and implemented in these states.

How Effective are Red Flag Laws?

There is some research data available on the effectiveness of red flag laws, as Connecticut and Indiana have both implemented the legislation for over a decade.

Following the 1999 implementation and later bolstering of ERPO in Connecticut, firearm suicide rates in the state dropped by 14%.

And in the 10-year period between 2005 enactment of red flag laws in Indiana and 2015, there was a 7.5% decline in the state’s suicide rates.