Red Flag Laws: What are Extreme Risk Protective Orders and Which States Have them?

Posted On May 10, 2020 Uncategorized

The tragic rise of mass shootings in the United States has resulted in numerous state measures to prevent potential threats from access to firearms and ammunition. One of the most notable initiatives is the extreme risk protection order (ERPO), an order which immediately restricts a person’s access to guns for a temporary period of time.

Also known as “red flag laws,” these orders serve to give family members and law enforcement the ability to disarm any seemingly dangerous individuals from potentially committing another tragedy.

Which states have Extreme Risk Protection Orders or red flag laws?

As of May 2020, 19 states and the District of Columbia currently have red flag laws (ERPO) or similar measures in place.

The states with Extreme Risk Protection Order laws (red flag laws) on the books are: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and, of course, Washington D.C.

Two of these states have passed laws that go into effect in 2020.  New Mexico’s law is effective as of May 2020 and Virginia’s law goes into effect on July 1, 2020.

While these states have Extreme Risk Protection Order laws, it’s important to note, however, that each state has separate, distinct criteria for these laws. This includes:

  • who is allowed to petition for an extreme risk protection order
  • the proof necessary to obtain an order
  • the length of orders, and whether they can be temporary or permanent
State Law? Who Can Petition? Temp. Orders  Final Orders Statutes
Alabama No
Alaska No
Arizona No
Arkansas No
California Yes Family, household members, and law enforcement 21 days 1 year Cal. Penal Code § 18100
Colorado Yes Family, household members, and law enforcement 14 days 1 year 2019 CO HB 1177
Connecticut Yes One state’s attorney or any two police officers 14 days 1 year Conn. Gen. Stat. § 29-38c
Delaware Yes Family, household members, and law enforcement Usually 15 days, up to 45 days 1 year Del. Code Ann. tit. 10, § 7701
Florida Yes Law enforcement 14 days 1 year Fla. Stat. § 790.401
Georgia No
Hawaii Yes Family, household members, educators, medical professionals, coworkers, and law enforcement 14 days 1 year 2019 HI SB 1466
Idaho No
Illinois Yes Family, household members, and law enforcement 14 days 6 months 430 Ill. Comp. Stat. Ann. 67/1
Indiana Yes Law enforcement 14 days Until terminated by petition and hearing, no earlier than 180 days Ind. Code Ann. § 35-47-14-1
Iowa No
Kansas No
Kentucky No
Louisiana No
Maine No
Maryland Yes Family, household members, law enforcement, and certain health workers 2 days ex parte, 7 days temporary (can be extended up to 6 months) 1 year Md. Code Ann., Pub. Safety § 5-601
Massachusetts Yes Family, household members, and law enforcement 10 days 1 year Mass. Gen. Laws, ch. 140 § 131R(b)
Michigan No
Minnesota No
Mississippi No
Missouri No
Montana No
Nebraska No
Nevada Yes Family, household members, and law enforcement 7 days 1 year 2019 Nevada AB 291
New Hampshire No
New Jersey Yes Family, household members, and law enforcement 10 days Until terminated by petition and hearing N.J. Stat. Ann. § 2C-58-20
New Mexico Yes (effective May 2020) Law enforcement 10 days 1 year N.M. Senate Bill 5
New York Yes Family, household members, school administrators, and law enforcement 6 business days 1 year NY CLS CPLR § 6340
North Carolina No
North Dakota No
Ohio No
Oklahoma No
Oregon Yes Family, household members, and law enforcement 21 days 1 year Or. Rev. Stat. Ann. § 166.525
Pennsylvania No
Rhode Island Yes
South Carolina No
South Dakota No
Tennessee No
Texas No
Utah No
Vermont Yes State’s Attorneys or the Office of the Attorney General 14 days 6 months Vt. Stat. Ann. tit. 13, § 4051
Virginia Yes (effective July 1, 2020) Attorney for Commonwealth or law enforcement 14 days 180 days (may be extended) Va. Code Ann. 19.2-152.13 et seq
Washington Yes Family, household members, and law enforcement 14 days 1 year Wash. Rev. Code Ann. § 7.94.010
Washington, D.C. Yes Family, household members, mental health professionals, and law enforcement 14 days 1 year 2017 DC B22-0588
West Virginia No
Wisconsin No
Wyoming No

The ERPO Petitioning Process

Generally, most states with red flag laws follow a similar process in order to file for a protection order.

  • An individual (typically close to the respondent) petitions for an ERPO, with proof that the person is at an increased risk for violent activity.
  • A temporary order is issued, typically without giving prior notice to the respondent. This is also known as an ex parte order.
  • The respondent is given a short period of time to schedule a hearing to determine the next steps following a temporary order.
  • Depending on the amount of substantiating evidence, the order may either by lifted or replaced with a final order. This states that the individual may not have access to guns or other specified weapons for a longer duration of time.

The criteria and process for each step of the process may differ from state to state.

Who Can Petition for Red Flag Laws?

12 states and the District of Columbia allow the following individuals to petition for an ERPO.

  • Immediate members of family
  • Any others living in the household
  • Law enforcement officers or other similar professionals

Of these states, five allow individuals other than family and household members to petition. This includes:

  • California – employers, coworkers, and certain school employees (starting September 1, 2020)
  • Hawaii – medical professionals, educators, and coworkers
  • Maryland – specific mental health professionals and other medical workers
  • New York – school administrators
  • District of Columbia – mental health professionals

Five states only allow law enforcement officers or other state officials with a similar capacity to petition: Florida, New Mexico, Rhode Island, Vermont and Virginia. Vermont has the most narrow scope when it comes to permissible individuals: an ERPO can only be filed by a State’s Attorney or the Office of the Attorney General.

What Proof is Required to Petition for an ERPO?

An extreme risk protection order is only issued if the petitioner can provide enough evidence to show the person in question is at a high risk for committing acts of violence. Because the ERPO is a civil action, the standards of proof may vary from state to state. Generally, this falls into three categories:

  • Reasonable, probable, or good cause – evidence is not explicitly saying the individual is immediately dangerous, but any reasonable person may assume that the individual may pose a danger
  • The preponderance of evidence – there is clear evidence that states the individual is more likely that not to commit an act of violence
  • Clear and convincing evidence – there is overwhelming evidence to suggest that an act of violence by the individual is imminent

It is important to note that the standards of proof for an ex parte order are typically more lenient than those for a final order. This makes it easier for a petitioner to get an emergency order when they believe danger to be imminent.

10 states and the District of Columbia only require probable, reasonable, or good cause in order to secure an ex parte order, while 4 states require a preponderance of the evidence. Only Oregon requires clear and convincing evidence to secure an ex parte order. However, this is because ex parte orders that are not contested by the respondent are automatically upgraded to a final order – the only ERPO state to do so.

Regarding final orders, the standards of proof are significantly higher. 11 states require clear and convincing evidence to issue a final order, and only 5 require a lesser preponderance of the evidence: Hawaii, Massachusetts, New Jersey, and the District of Columbia.

How Long Are These Orders?

Ex parte orders can last anywhere from 6 days to 21 days depending on the state, but many of them commonly last for 14 days.

Maryland is the largest outlier in this time period – an ex parte order only lasts 1-2 days, with the expectation that the respondent can schedule a hearing with a sitting district court judge within that time period.

Final orders usually last 1 year, but there are a few notable exceptions. Illinois and Vermont have final orders that may last up to 6 months, and New Jersey’s final order actually lasts indefinitely – until the respondent provides a preponderance of the evidence that they are no longer a danger.

Connecticut and Indiana Have Unique Laws for Firearms Removal

Connecticut and Indiana are notably left out in the above time periods and statistics for a very good reason: while they do not have red flag laws in the traditional sense, they do have what are called firearms removal laws that act in a similar way.

Both of these laws do not allow family or household members to petition for the removal of a firearm. Rather, they allow law enforcement or a state’s attorney to file for a seizure of firearm or ammunition from a person that they deem is high-risk or dangerous. Depending on the circumstances, law enforcement may also request a search and seizure warrant to remove any firearms or ammunition from the premises of the respondent.

Warning Signs of a Potential Mass Shooter

Although red flag laws rely on concrete evidence in order to enforce the removal of firearms, there may be other traits that may indicate that an individual or loved one may pose an imminent danger to others. Some warning signs include:

  • A history of troubling behavior. According to the FBI, 62% of active shooters in 2016 and 2017 had a history of abuse and harassment. This includes domestic abuse and bullying – either in a workplace or educational environment.
  • Offhanded comments or references to committing a violent act. The FBI refers to this as “leakage” – a seemingly hypothetical remark or discussion that hints that the person may engage in violence in the near future.
  • Any recent grievances or stress. Some people may be pushed to violence by sudden acts that may harm or otherwise oppress their way of life. This may include being the victim of a bully, political unease, and other motivations by radical groups.

Although red flag laws may aide in curbing any imminent danger that may be present in an individual, observing any warning signs and reporting them to the proper authorities can also be an invaluable way to prevent further tragedies from occurring in the United States.

Related: Read our analysis of firearm restrictions in domestic violence cases.

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