Among the popular gun policy proposals raised in the aftermath of shootings like those in Sandy Hook, Parkland and now El Paso and Dayton, the call for “red flag” laws has become a common refrain.
But like universal background checks and closing the “gun show loophole”, “red flag” laws aren’t self-explanatory.
What does a ‘red flag’ law do?
‘Red flag’ laws, or Extreme Risk Protection Orders (ERPOs) allow family members, law enforcement or other third parties to ask a court to temporarily remove a person’s guns if they’re concerned about the individual.
If a judge finds that person is dangerous to himself or others, that person must surrender all firearms to the police for a specified period of time. During that period of time, the person is also not allowed to buy or sell guns.
What doesn’t it do?
It is a temporary order, so it does not permanently keep guns away from individuals who might cause significant risk. The window of time it’s in effect depends on how the law was written in your state.
A “red flag” law is only as good as the enforcement behind it. And depending on the state, the law does not always guarantee enforcement of the order. That often depends on the resources and awareness of local police and sheriffs. In some states, these laws are used widely and enforcement is swift, while in others, they aren’t used much at all.
In some cases it’s a matter of education. Neither the community nor law enforcement may be aware that “red flag” laws are an option in their state. In other areas, law enforcement has dedicated staff and trainings for police. And in some jurisdictions, law enforcement don’t support the laws, and aren’t proactive in making the option known to residents.
Why do some gun rights supporters oppose these laws?
The National Rifle Association (NRA) supports the “idea” of “red flag” laws but opposes how they’ve been enacted in states across the country, saying they infringe on due process rights.
This is because the hearings to decide if an individual is dangerous are held “ex parte,” which means the person whose guns are temporarily removed does not have to be present at the time of the hearing.
This isn’t unusual. Restraining order hearings are often held “ex parte.”
The issue has also become a point of contention for gun rights advocates as a sign of government overreach.
Do ‘red flag’ laws work?
There hasn’t been a great deal of research on the effectiveness of these laws, mostly because they are relatively new.
And we don’t know yet how these laws can affect future violence or homicides.
However, the studies we have so far suggest these laws can at least reduce gun suicides, which make up 60% of the nation’s total annual gun deaths.
One argument for “red flag” laws is they may be used as a tool to reduce mass shootings. And according to the most recent report from the FBI, more than a third of mass shooters killed themselves.
While mass shootings are rare, and thus hard to study, one hypothesis is that “red flag” laws could target this group by giving those closest to them an opportunity to take action before something happens.
How Many States Have Red Flag Laws?
Following the shooting at Stoneman Douglas High School in February 2018, the number of states passing “red flag” laws doubled. Seventeen states and the District of Columbia with some kind of ERPO law on the books:
- California
- Colorado
- Connecticut
- Delaware
- Hawaii
- District of Columbia
- Florida
- Illinois
- Indiana
- Maryland
- Massachusetts
- Nevada
- New Jersey
- New York
- Oregon
- Rhode Island
- Washington
- Vermont
In addition, four states have some kind of “red flag” bill proposed in their legislature: Ohio, Pennsylvania, Michigan and North Carolina.
Could there be a national ‘red flag’ law?
As of right now, there is no federal ERPO or “red flag” law. But of late there could be interest in changing that.
Sen. Lyndsey Graham, R-S.C., and Sen. Richard Blumenthal, D-Conn., have indicated they are working on crafting such a bill in the U.S. Senate. The bill would provide grants to states that pass these laws. So far, that bipartisan bill has not been introduced.
A number of Democratic presidential candidates also support a national “Red Flag” law.
For his part, in his remarks after the shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump signaled support for a national “red flag” law.
Emily Alfin Johnson contributed to this reporting.
Guns & America is a public media reporting project on the role of guns in American life.
