Red Flag Laws, where did they come from? Gabby Giffords gun control group helps lawmakers implement red flag laws under risk protection to circumvent due process.
EMERGENCY RISK PROTECTION
Lawmakers are proposing red flag laws in several states. Some states have even enacted risk protection orders that temporarily take away a person’s guns if they are considered a risk. In some states for a period of 14 days in others it could be years and the effected person’s would have to prove otherwise to gain the firearm property back. Law makers are now introducing bill’s in multiple states. This leaves many thinking that this is how gun rights will be stripped from law abiding citizens. Arguments that if no crime has been committed then the police have no right to steal someones property. See the information below taken from famed gun grabber, Gabby Gifford, and her gun control groups website where there it provides lawmakers with resources to enact risk protection in their home state. It makes one wonder if the very laws they enact won’t lead to the very thing they are trying to prevent; bloodshed. Valid arguments that school shootings occur in gun free zones, which were enacted in 1994 by democratic lawmakers, are of the same type of counter intuitive initiatives being pushed and passed in many states. Is your state listed? See below. The information below was sourced from Giffords gun control website linked below.
HOW IT HAPPENS
South Carolina Democratic Rep. Ivory Thigpen has introduced a bill that would allow law enforcement officers to temporarily take away a person’s guns if they are considered a risk.
The bill is currently under committee review, but it is a version of the extreme risk protection order (ERPO) created and pushed by Giffords gun control group.
These orders enable the court to temporarily prohibit a person from having guns if officials determine they pose a significant threat. In other states family members or even the general public can make such recommendations.
In South Carolina’s case, law enforcement officers would have to file a complaint with a probate court and have to prove probable cause that a person poses a risk of “imminent personal injury” to himself or other individuals.
A judge could look at factors like recent threats made by the person, acts of violence, and alcohol abuse when determining if they should have their guns taken away.
But the court must hold a hearing within seven days of the warrant to determine if the person can get their guns back.
“I introduced this bill, keeping mental health issues in mind. Myself and other groups have been working with police in Richland county to provide training when dealing with individuals who may have mental health issues and provide legislation to make society safer.” said SC (D) Representative Thigpen
SUMMARY OF FEDERAL LAW
Under federal law, a person suffering from mental illness is not prohibited from purchasing and possessing a gun unless he or she has been formally, and involuntarily, committed to a mental institution, found not guilty by reason of insanity, or undergone some other formalized court proceeding regarding his or her mental illness. Similarly, a person who has committed a violent act towards others is not prohibited from possessing guns under federal law unless he or she is the subject of a domestic violence restraining order, has been convicted of a felony, or has been convicted of a domestic violence misdemeanor.
SUMMARY OF STATE LAW
Most states have laws mirroring the federal prohibitions on gun possession by seriously mentally ill individuals. (For more information about these state laws, visit our policy page on Categories of Prohibited People. These laws allow states to enforce prohibitions on gun possession by mentally ill individuals utilizing their own law enforcement agencies and criminal justice systems. Similar to federal law, however, these laws do not provide a process for law enforcement or family members to disarm a dangerous individual who has not been adjudicated mentally ill or committed to a mental institution.
Similarly, state domestic violence laws allow a victim to seek a court order to prevent further acts of abuse. These laws have been enacted in all 50 states. Research has shown the laws to be effective, and courts have upheld them against various constitutional challenges. These laws are limited, however, to preventing abuse against an identifiable person and do not allow an individual to seek an order generally restraining a dangerous person’s access to guns. Because every state has a system for issuing domestic violence restraining and protective orders, and due process protections are built into those systems, ERPO laws draw heavily from the domestic violence protective order systems in their states.
LAWS THAT ALLOW FAMILY OR HOUSEHOLD MEMBERS, OR OTHERS, TO SEEK A COURT ORDER DISARMING A DANGEROUS PERSON
Eight states have enacted comprehensive laws allowing family or household members, in addition to law enforcement officers, to petition a court to keep guns away from a dangerous person in the throes of a crisis. These laws closely mirror the domestic violence restraining order processes in their respective states.
In order to prevent individuals from abusing this process, most of these states have expressly made it a crime to knowingly file a false or intentionally harassing petition.
States that Allow Family or Household Members to Petition
Delaware (effective December 27, 2018)
Illinois (effective Jan. 1, 2019)
New Jersey (effective Sept. 1, 2019)
States that Also Allow Other Individuals to Petition
Maryland (Certain categories of mental and other health workers)
LAWS THAT ONLY ALLOW LAW ENFORCEMENT OFFICERS OR PROSECUTORS TO PETITION FOR AN ERPO
In response to the deadly school shooting that occurred at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018, Florida legislators enacted an ERPO law that allows law enforcement officers or agencies to petition a court for an order preventing a dangerous person from possessing or purchasing firearms. Unlike Connecticut’s and Indiana’s laws, Florida’s law allows officers and agencies to file for an order that prevents an individual from purchasing or possessing firearms even if he or she does not already possess them. Legislators in Rhode Island also enacted similar legislation in 2018.
A threatened school shooting in Vermont following the Parkland massacre also motivated lawmakers in that state to enact an extreme risk protection order law. Vermont’s law authorizes prosecutors—either State’s Attorneys or the Office of the Attorney General—to petition for an order.
States that Only Allow Law Enforcement Officers or Other State Officials to Petition
TYPES OF ORDERS
Similar to domestic violence restraining and protection orders, ERPOs can be issued on an emergency basis or for a longer period.
Ex Parte Orders
Ex parte orders are orders that may be issued by a court in emergency cases without waiting to provide notice of a hearing to the respondent. This process allows a court to quickly issue an order, but because the restrained individual is not given notice or an opportunity to contest it, the order may only last for a short period of time during which the court must set a date for a full hearing that gives the respondent an opportunity to contest the order.
In California, Illinois, Massachusetts, Maryland, New Jersey, Oregon, and Washington, family and household members, as well as law enforcement officers, may seek emergency ex parte orders.
In California, an ex parte order lasts no more than 21 days. In Illinois and Washington, an ex parte ERPO lasts for 14 days or less. In New Jersey and Massachusetts, emergency orders generally last for up to 10 days.
After issuing an ex parte (“interim”) order in Maryland, the court must schedule a hearing for a temporary order on the “first or second day on which a district court judge is sitting” after issuing the ex parte order.
In Oregon, after an ex parte order is issued, the respondent has 30 days to request a hearing to contest the order. If the respondent requests a hearing, one must be held within 21 days from the date the order was issued. If the respondent fails to request a hearing, the ex parte order becomes a final order and remains in effect for a period of one year from the date the original order was issued or until the order is terminated, whichever is sooner.
States that do not allow family members to petition have similar ex parte duration restrictions. In Delaware, law enforcement can petition for an ex parte order that lasts 15 days, but can be extended for up to 45 days. Florida and Rhode Island allow law enforcement to petition for ex parte orders that last up to 14 days; Vermont allows prosecutors to seek ex parte orders for the same duration.
California also has a special procedure that allows a law enforcement officer to petition a court, orally or in writing, for a temporary emergency gun violence restraining order at any time of day or night that lasts for 21 days.
After a court issues an ex parte order, it must promptly hold a subsequent hearing at which the respondent has the opportunity to be heard and present evidence. If the petitioner meets the standard of proof (discussed below), the court will issue an order that lasts for one year (or up to six months in Illinois and Vermont). Discussed later in this section, each state allows the respondent to request a hearing to terminate the order during the effective period of the yearlong order.
EXTREME RISK PROTECTION ORDER PETITIONS
Evidence Showing Dangerousness
Extreme risk protection orders are designed to keep guns away from people who are at a high risk of committing violence temporarily. Accordingly, these laws are often referred to as “risk-based removal” laws. To determine a person’s level of risk, states often require or authorize courts to consider certain types of evidence that research has demonstrated indicates a person is at an elevated risk of committing violence. For example, in California, when filing a petition for an order, the court must consider the following evidence:
- Threats or acts of violence by the respondent towards self or another within the past six months
- A violation of a domestic violence emergency protective order that is in effect at the time the court is considering the petition
- A violation of an unexpired domestic violence protective order within the past six months
- Any conviction for any crime that prohibits purchase and possession of firearms (Even if a person is prohibited from purchasing or possessing firearms due to a criminal conviction, an ERPO may be necessary to require the individual to relinquish his or her firearms. Read more about disarming dangerous people in our report, Keeping Illegal Guns Out of Dangerous Hands)
- A pattern of violent acts or threats within the past 12 months
California courts are also authorized, but not required, to consider any other evidence that is indicative of an increased risk for violence, such as:
- Unlawful and reckless use, display, or brandishing of a firearm
- Use or threats of physical force against another person
- Prior arrests for felonies
- History of violations of domestic violence protective orders
- Police reports and conviction records of criminal offenses within the past six months that involve controlled substances or alcohol, or documentary evidence of ongoing abuse of controlled substances or alcohol
- Recent acquisition of firearms, ammunition, or other deadly weapons
Number, Types, and Locations of Firearms
ERPO petitioners are also generally required to include information they have about firearms, and in some cases, ammunition, the respondent possesses. For example, Washington requires a petition to identify the number, types, and locations of any firearms the petitioner believes to be in the respondent’s current ownership, possession, custody, or control. By including this information in the petition, if a court issues an order and the respondent fails to relinquish the identified firearms, the court may issue a search warrant allowing law enforcement to search the respondent’s property for these firearms. Other states that allow for the issuance of a warrant include: Florida, and Maryland. Delaware, Illinois, New Jersey, and Rhode Island require a warrant to be issued concurrently with an ERPO.
Standard of Proof
In order for the court to issue an extreme risk protection order, the petitioner must prove that the respondent is dangerous. The standard the petitioner has to meet depends on the type of order and the length of time it restrains the respondent from possessing guns. For an emergency order that can be issued ex parte without notice to the respondent, the standard of proof is often lower to make it easier for a petitioner to obtain the order and prevent violence in an emergency situation. The lower standard of proof for an ex parte order is justified by the fact that the ex parte order only lasts for a short period of time before the court holds a hearing at which the petitioner must meet a higher standard.
For example, in Florida, a law enforcement officer who petitions for an ex parte order must prove that there is “reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having . . . a firearm or ammunition.” However, to obtain an order that lasts for one year, the petitioner must prove by “clear and convincing evidence” that the respondent poses a significant danger—a significantly higher legal standard.
A critical component of any law that seeks to disarm a dangerous person is the process that requires the individual to relinquish his or her guns. In California, when a court issues an order, the respondent is required to immediately relinquish all firearms and ammunition. If a law enforcement officer serves an order that indicates that the respondent possesses any firearms or ammunition, the officer must request that the respondent turn over the firearms and ammunition to the control of the requesting officer. If a law enforcement officer is unable to personally serve the order, the respondent is required to relinquish his or her guns and ammunition to the local law enforcement agency within 24 hours of being served the order. In lieu of transferring his or her guns to a law enforcement agency, the respondent may sell or transfer all firearms and ammunition to a licensed firearms dealer. The law enforcement officer or licensed firearms dealer taking possession of any firearms or ammunition must issue a receipt to the person surrendering the firearms or ammunition. Within 48 hours after being served the order, the respondent must file the receipt with the court that issued the order and with the law enforcement agency that served the order.
Other states with ERPO laws also have similar provisions requiring people subject to extreme risk protection orders to relinquish their firearms and, in some cases, licenses to possess or carry firearms.
Order Renewal and Termination
Extreme risk protection orders may be renewed. To renew an order, the petitioner must request a hearing and prove that the respondent still poses a risk of harm to the safety of him or herself, or others, by possessing firearms. At the renewal hearing, the petitioner generally must meet the same burden of proof using the same categories of evidence he or she used to obtain the initial, one-year order.
Individuals subject to extreme risk protection orders may also request a hearing to prove they no longer pose the risk that initially justified the order. Generally, respondents may request one hearing during the effective period of the order at which they bear the burden of proving, by the same standard used to obtain the order, that they no longer pose the risk of harm.
FIREARM REMOVAL LAWS
Firearm removal laws are similar to extreme risk protection orders in that they allow certain categories of people to obtain court orders removing guns from dangerous people. These laws differ from extreme risk protection orders in that the orders may only be used to remove firearms already in the possession of a respondent whereas extreme risk protection orders may be obtained against individuals who do not possess firearms.
In 1999, Connecticut enacted a firearms removal law. The law allows a state’s attorney, or any two police officers, to file a complaint for seizure of a firearm or ammunition when they have probable cause to believe that:
- A person poses a risk of imminent personal injury to himself, herself or others
- The person possesses one or more firearms
- The firearm is within or upon any place, thing or person
Probable cause may be based on evidence similar to the categories of evidence courts must review when reviewing petitions for ex parte GVROs and ERPOS. The Connecticut law also allows a court to issue a search and seizure warrant for firearms or ammunition possessed by the dangerous individual. The court must hold a hearing no later than 14 days after execution of the warrant to determine whether the seized firearms and ammunition should be returned to the person named in the warrant. If the court finds by clear and convincing evidence that the person poses a risk of imminent personal injury to himself or herself or others, it may order the state to continue to hold the firearms and ammunition for up to one year.
Although Connecticut’s law could not be used to prevent a person who does not possess firearms from acquiring them in the future, a person whose guns have been removed pursuant to the state’s removal law is prohibited from purchasing new firearms for the duration of the order.
Indiana also has a law similar to Connecticut’s that allows a law enforcement officer to file a sworn affidavit with a court describing the facts that have led the officer to believe an individual is dangerous and in possession of a firearm. A dangerous individual is someone who presents one or more of the following:
- An “imminent risk” of personal injury to himself, herself or another person
- A risk of personal injury to himself, herself, or another person in the future and he or she either:
- Has a mental illness that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual’s medication while not under supervision
- Is the subject of documented evidence that would give rise to a reasonable belief that he or she has a propensity for violent or emotionally unstable conduct
The affidavit must also describe the officer’s interactions and conversations with the individual who is alleged to be dangerous or another individual, if the law enforcement officer believes that information obtained from this individual is credible and reliable
If the court concludes probable cause exists to believe the individual is dangerous and in possession of a firearm, the court may issue a search and seizure warrant for the individual’s firearms.
Law enforcement officers may also seize firearms without a warrant from any individual whom the law enforcement officer believes to be dangerous. In such an instance, the court must ultimately hold a hearing within 14 to 16 days to determine whether probable cause exists to find that the individual is dangerous and law enforcement should retain his or her firearms and concealed carry license, if applicable.
Law enforcement will retain the individual’s firearms indefinitely unless he or she petitions the court no less than 180 days after the initial ruling and proves by a “preponderance of the evidence” that he or she is no longer dangerous. If the court denies return of the firearm, the petitioner must wait another 180 days before filing a subsequent petition. If at least five years have passed since a court conducted the first hearing, the court, after giving notice to the parties and conducting a hearing, may order the law enforcement agency having custody of the firearm to dispose of the firearm.
Unlike Connecticut’s firearm removal law, Indiana has no provision preventing a person subject to a seizure warrant from acquiring new firearms.
Both the Connecticut and Indiana laws have been upheld by state courts as constitutional under the Second Amendment.
In Illinois, the Firearms Seizure Act allows any person to bring a complaint before a circuit court that a person possessing a firearm(s) has threatened to use the firearm(s) illegally. If the court is “satisfied that there is any danger of such illegal use of firearms,” it must issue a warrant to apprehend the person for appearance before the court, and authorize the seizure of any firearm in the person’s possession. The court must order any firearm taken from the person to be kept by the state for safekeeping for a stated period of time no longer than one year. The firearm(s) must be returned to the person at the end of the stated period. The court may enter judgment against a person who files a complaint maliciously and without probable cause.
Because the Firearms Seizure Act does not require an individual to relinquish his or her Firearm Owners Identification (FOID) card which is required to purchase or possess a firearm in the state, (Illinois has a separate law that requires this, see below), a person whose firearms have been removed pursuant to the Act may not prohibited from acquiring new ones.
LICENSE REVOCATION PROCEDURES
Three states—Illinois, Massachusetts, and New York—require a license to possess firearms. Each state has a procedure to revoke a person’s firearm license if the individual poses a danger to themselves, others, or the general public.
In addition to its Firearms Seizure Act discussed in the preceding section, in Illinois, a person is prohibited from possessing a firearm if his or her mental condition (meaning a state of mind manifested by violent, suicidal, threatening, or assaultive behavior) is of such a nature that it poses a clear and present danger to self, others, or the community. A person poses a clear and present danger if he or she (1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to self or others or (2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.
The individuals listed below are required to report to the Department of State Police (DSP) within 24 hours when they determine a person poses a clear and present danger to himself, herself, or others.
- Law enforcement officials and officers
- School administrators
- A physician, clinical psychologist, or qualified examiner (must report to the Department of Human Services which is required to transfer the information to DSP)
If a person is determined by DSP to pose a clear and present danger to self, others, or the community, it may revoke the individuals FOID card. Once a person’s FOID card has been revoked, he or she is required to surrender his or her FOID card to the local law enforcement agency where the person resides. The local law enforcement agency must provide the person with a receipt and transfer the FOID card to the DSP.
The individual must also complete a Firearm Disposition Record form which must disclose the make, model, and serial number of each firearm owned by the person, the location where each firearm will be maintained during the prohibited term, and if any firearm will be transferred to another person, the name, address, and FOID card number of the transferee. A copy of this form must be provided to the person whose FOID card has been revoked and to the DSP
A violation of these requirements is a misdemeanor. If a person who receives a notice of revocation fails to comply with these requirements, the local law enforcement agency may petition the circuit court to issue a warrant to search for and seize the FOID card and firearms in the possession of that person.
On April 22, 2018, an individual whose FOID card had been revoked by DSP for posing a clear and present danger shot and killed four people at a Waffle House in Nashville, Tennessee. Pursuant to Illinois law, the shooter turned his firearms over to his father, who illegally returned the firearms to his son.
In order to purchase a long gun in Massachusetts, an individual must have either a License to Carry or a Firearms Identification Card (FID). For handgun purchases, anyone without a License to Carry must possess an FID as well as a purchase permit.
If the licensing authority deems an applicant for a FID “unsuitable,” it must file a petition with a court and, at a hearing, prove by a preponderance of reliable, articulable, and credible evidence that the applicant has behaved in a way to suggest he or she could potentially create a risk to public safety. The licensing authority may also deny or revoke a License to Carry if reliable and credible evidence exists to believe the applicant poses a public safety risk. It is not necessary for the licensing authority to petition a court to deny or revoke a License to Carry, though the applicant may request a court hearing to contest the denial.
When a person receives a notice of revocation, he or she must “without delay” deliver or surrender all firearms and ammunition in his or her possession to the licensing authority where he or she resides.After taking possession, the licensing authority may transfer possession of any firearms and ammunition to a licensed firearms dealer for storage purposes. The dealer must issue a receipt to the prohibited person, who is liable to the dealer for reasonable storage charges. Through the dealer, the prohibited person may then transfer any relinquished firearms to a person lawfully permitted to purchase or take possession of the weapon.
New York requires individuals wishing to possess a handgun to obtain a license. The licensing authority is required to issue an order suspending or revoking the individual’s license when it receives a report regarding a mental health patient who may be a danger to himself, herself, or others. A person whose license has been revoked is entitled to a court hearing.
Whenever a person’s license is suspended or revoked, that person must surrender his or her license to the appropriate licensing official. In addition, any and all firearms possessed by the person must be surrendered to an appropriate law enforcement agency. If these firearms are not surrendered, law enforcement must remove all such weapons and declare them a nuisance.
KEY LEGISLATIVE ELEMENTS
This is where Giffords provides lawmakers with neccesary material to have these types of laws pushed. Giffords Law Center has drafted model ERPO legislation. Please contact Giffords office us directly for a copy of our model law. Any ERPO legislation should include:
- Immediate ERPOs: The court must consider any petition for an ERPO within 24 hours and should be able to issue an ERPO immediately to prevent the harm that might result if the person continues to have access to firearms. When determining whether to issue an ERPO before notice to the person, the court must consider the risk that he or she may attempt to conceal guns that are already in his or her possession.
- Hearing and Duration: An ERPO issued without a hearing should only be valid until the court can hold a hearing where the respondent has the opportunity to participate. At the hearing, the court should be able to issue an ERPO for a longer period, such as one year. The petitioner should be able to ask the court to renew the order.
- Surrender of Guns: A person who is served with an ERPO must be required to immediately surrender all firearms in his or her possession. Law enforcement must provide the person with a receipt and take these weapons into custody for the duration of the ERPO. The law may allow the restrained person to immediately surrender all firearms and ammunition to law enforcement or sell them to a licensed dealer. In either circumstance, the restrained person must obtain a receipt, which must be filed with law enforcement and the court that issued the order.
- Search Warrant: If a person subject to an ERPO does not file a receipt demonstrating that he or she has relinquished firearms believed to be in his or her possession, the court should be required to issue a search and seizure warrant upon a finding of probable cause that the person possesses firearms.
- Fee Waivers: No fees should be charged to file or serve an ERPO. In many states, fees for filing and service of domestic violence protection orders are not required.
- Protections for Co-habitants: The law should provide that a gun may not be seized pursuant to a warrant if the gun is owned by someone other than the person subject to the ERPO and is stored so that he or she does not have access to it. Also, a gun safe owned solely by someone else may not be searched.
- Notice to Law Enforcement: Law enforcement should be notified when a petition for an ERPO is filed, so that law enforcement can determine whether the dangerous person already has a gun. Law enforcement may also have other relevant evidence that can assist the court in determining whether to issue an ERPO.
- Penalty for False Petitions: The law should impose a criminal penalty on any person who files a petition for an ERPO that contains statements the person knows are false.
- Reporting for Background Checks: Upon issuing an ERPO, the court must ensure that records identifying the person subject to the ERPO who is restrained from having a gun are promptly submitted to the background check system. This requirement will help ensure that the person cannot purchase any new guns.
- Ammunition: Each provision of the law should apply to ammunition as well as firearms.