Each state with these laws does them differently, but it’s usually something like this: If a family member or the police think someone might be a danger to themselves or others, they can sign an affidavit explaining why they think that person’s guns should be taken away. The court can then grant a temporary removal of guns (usually for 2 to 45 days depending on the state). This is often done as an ex-parte proceeding and there’s usually a lower standard of evidence to prove if that person is dangerous. The thinking is, you want to remove the threat as quickly as possible to minimize damage. After the guns are removed, there’s another hearing to determine if the guns can be given back or held for longer, usually up to a year. This is when the person whose guns have been taken can defend themselves, and the level of evidence needed to keep the guns away is higher.
What are the main arguments for Red Flag Gun Laws?
One of the main arguments is that they lead to greater public safety. Research shows these laws have reduced some types of gun violence-- like suicides by gun. The laws have also been used to remove guns from people who have made threatening statements about mass shootings, so it's possible the removal of those guns prevented some mass shootings.
What are the main arguments against Red Flag Gun Laws?
One of the main arguments against these laws is that someone could unfairly get their guns taken away-- like if a family member lies about feeling endangered. Critics also say these laws may violate constitutional rights to due process. In the case of ERPOs a person doesn’t usually get a chance to fully defend themselves in front of a judge until AFTER their guns are taken away. What are the key considerations of Red Flag Laws? The debate becomes a balancing act to figure out how to write the law so that it protects public safety without infringing on civil liberties (like due process). What level of evidence is needed to temporarily remove someone's guns? How long should the guns be removed for? Who can make that recommendation- just family? law enforcement? both? Are there penalties to make sure people don’t lie to get someone’s guns taken away?
Extreme risk protection orders in state legislatures (Ballotpedia)
What Are ‘Red Flag’ Gun Laws, and How Do They Work? (NY Times)
Extreme Risk Protection Orders (Giffords Law Center to Prevent Gun Violence)
Extreme Risk Protection Orders Intended to Prevent Mass Shootings (Annals of Internal Medicine)
Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015 (Psychiatry Online)
Red Flag Laws: Constitutionality and Enforcement of Extreme Risk Protection Orders (Criminal Defense Lawyer)
The Constitutional Case for “Red Flag” Laws (Jurist)