Red Flag Laws: The Policy of Seizing Guns from High-Risk Citizens

Photo by Arnav Singhal on Unsplash

Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

United States citizens boast the constitutional right to bear arms, but the nation also has a notoriously high percentage of firearm related deaths.  The rate of suicide by guns in the United States outnumbers the rate of homicides, and suicide attempts by gun are the most lethal.[1]  Moreover, gun owners and their families are more likely to kill themselves than non-gun-owners.[2]

To protect the public from gun-related violence, some states have passed red flag laws (“RFLs”) which permit law enforcement officers to remove firearms from a person who presents a risk to themselves or others.[3]  These laws are highly controversial because of their challenged constitutionality and policy concerns. 

This article argues that unless the Supreme Court of the United States holds this category of laws unconstitutional, states should implement them.  Part II of this article provides a background on red flag laws implemented throughout the nation.  Part III discusses the constitutionality of RFLs and whether states that have yet to implement them should do so.

II. Background

Red flag laws, also known as extreme risk protection orders, are becoming a popular state-implemented solution to mass shootings and other growing firearm-related violence.  The first RFL was introduced in Connecticut in 1999, and today nineteen states plus Washington D.C. have some form of the law.[4] The statutes vary from state to state, but they generally permit police or family members to petition a state court to order the temporary seizure of firearms from a person who may present a danger to themselves or others.[5]  A petitioner submits evidence to the court of statements or actions by the gun owner, such as threats of violence, a violation of a domestic violence restraining order, or a recent acquisition of a significant number of firearms.[6]  If the court issues the order, it prevents the individual from possessing or purchasing a firearm for a fixed amount of time, which is usually between six and twelve months.[7]  Violating the order is a criminal offense, but the person subject to it generally may request a hearing to terminate the order. [8] 

By contrast, several states have proposed anti-red flag bills to prevent local governments from enacting their own RFLs. [9]  So far, Oklahoma has been the only state to pass the bill. [10]  Endorsers of the statute boast that it protects citizens’ Second Amendment rights and prevents laws which are allegedly unconstitutional.

III. Discussion

A. Whether Red Flag Laws are Constitutional

Opponents to red flag laws, such as the National Rifle Association, argue that the laws are unconstitutional.  Critics of RFLs have proposed the laws present problems under several amendments in the Bill of Rights, including the First, Second, Fourth, and Fifth Amendments.[11]  Plenty of lawsuits have been filed challenging the constitutionality of RFLs, but the lower courts have generally upheld the laws as constitutional.[12] 

State legislators that back anti-red flag laws have argued that RFLs violate the First Amendment, which protects against unwarranted government interference with expression.[13]  However, threats of violence, intimidation, harm, or death are not protected under this amendment.[14]

The Second Amendment is perhaps where most people would turn to when questioning the constitutionality of these laws, as it protects the right to keep and bear arms.  Although the seizure of a firearm temporarily deprives a person from exercising this right even when the citizen has not committed a crime, the Supreme Court has confirmed that the right to possess a firearm is not unlimited.[15]  Federal laws also limit a person’s right to possess a gun, even in certain circumstances when a person has not committed a crime.  For example, a person is prohibited from having guns if they have been adjudicated as mentally ill or involuntarily committed to a psychiatric hospital.[16] 

The Supreme Court has recently declined to answer whether RFLs violate the Fourth Amendment, but alluded that it might take up the question shortly.[17]  The Fourth Amendment protects against unreasonable seizures and requires probable cause to issue a warrant.  However, RFLs generally require a warrant.  Moreover, the Supreme Court considers warrantless firearm removal reasonable when a person is armed and presently dangerous.[18] 

The most prevalent argument that RFLs are unconstitutional is that they violate the Fifth Amendment right to due process, which requires procedures that provide notice, an opportunity to be heard, and appeal.  All existing RFLs provide these due process protections as they require heightened burden of proof standards for final orders removing firearms, and then allow the subject of the laws to request a hearing. [19]  The Supreme Court has recognized that a pre-hearing deprivation followed by a full hearing within a reasonable time frame satisfies due process of law.[20]  Furthermore, in most cases, RFLs operate the same way as search or arrest warrants which permit seizures: a law enforcement officer brings evidence to a judge who makes a decision to allow the officer to act prior to a hearing. [21]  RFLs also compare to other laws that protect people from harming themselves, like involuntary commitment and removing children from unfit parents.[22] 

B. Whether States Should Adopt Red Flag Laws

The Supreme Court of the United States should provide a definitive answer on whether red flag laws are constitutional.  If it follows most of the lower courts’ decisions and many legal scholars, it will determine that the laws are constitutional.  Meanwhile, state legislators are tasked with either passing a red flag law, passing an anti-red flag law, or remaining silent on the issue.  The controversial decision will force lawmakers to balance the rights of gun owners with concerns for public safety. 

The lives that are saved by avoiding gun violence illustrate the advantages of RFLs.  Gun control activists believe that the law works because shooters exhibit warning signs that they pose a risk to themselves or others in a high percentage of cases.[23]  Therefore, law enforcement is able to prevent someone exhibiting these warning signs from making a permanent decision based on a temporary state of mind.  States that have implemented the laws report some success in accomplishing the goal of the statutes.  Over 13,000 Extreme Risk petitions have been filed.[24]  Academic research suggests that suicide rates have declined as compared with the expected rates without the laws.[25]  However, studies have not shown that homicide rates have been influenced.[26]  Nevertheless, citizens have reported numerous stories of direct threats of homicide or suicide that led to law enforcement being able to confiscate a firearm due to an RFL.[27]

Even if the laws are constitutional, critics argue that they are unjust.  The laws deprive people of their property and ability to defend themselves.  RFLs also may not be getting at the root of the problem, as they do not improve access to mental health care and may even deter those who might otherwise seek treatment for fear of forfeiting their rights.[28]  Furthermore, RFLs may be especially harmful to financially disadvantaged individuals.  Typically, one subject to an RFL order is not provided the right to an appointed attorney, and the process to defend their rights is time consuming and expensive.[29]  Then, even when the order has run, some statutes do not require the return of the weapons, so an individual must take independent and expensive legal action to retrieve their rightfully owned property.[30]  This may also become problematic considering many of the statutes provide no means to prevent individuals from maliciously accusing others, so third parties may easily abuse the system.[31]

Proponents and opponents of RFLs may agree that the orders are not fool proof in preventing gun violence.  One obstacle is that they are temporary, and their expiration is based on a fixed date rather than any showing that the subject of the order no longer displays violent tendencies.  There are various stories of the state seizing a citizen’s firearm for several months, and then when the order ceases, the citizen purchases a weapon and commits a mass shooting.[32]  However, this downfall is somewhat relieved by the fact that the orders can be renewed.[33]  Another common issue is that states have reported that a small percentage of the population are even aware of the laws, much less understand how they operate.[34] 

States should pass RFLs after considering these advantages, disadvantages, and shortcomings.  There is proof that lives have been saved from these laws.  Freedoms are only limited by these laws when a court orders it so.  The criminal judicial system often operates as a scale, weighing the need for public protection against the citizens’ individual rights.  Often, a court is issued authority to limit citizens’ rights when the alternative is a less safe society.  Furthermore, legislators may find the elements that limit the success of RFLs helpful to consider, but they are not compelling reasons to not pass them.  The statutes do not purport to solve all gun violence, but there are instances in which these laws have prevented deaths.  Moreover, states may also be persuaded to pass RFLs at the advice of President Biden, as he promised to create new model legislation for red flag laws to pass.[35] 

IV. Conclusion

The Supreme Court of the United States will likely eventually address the constitutionality of Red Flag Laws.  If the Court holds all RFLs to be unconstitutional, then the issue of whether states ought to adopt them will become moot.  However, in the more likely event that the Court upholds the laws at least to some extent, state legislators must weigh the public interest advantages of the laws with the limitations they provide on constitutional rights.  States should implement these laws, as legislators should value lives saved more highly than temporary deprival of possessions. 

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[1] American’s Gun Culture in Charts, BBC News (Apr. 8, 2021), https://www.bbc.com/news/world-us-canada-41488081; Madeline Drexler, Guns & Suicide, Harvard Pub. Health (2022), https://www.hsph.harvard.edu/magazine/magazine_article/guns-suicide/.

[2] Drexler, supra note 1. 

[3] Rachel Dalafave, An Empirical Assessment of Homicide and Suicide Outcomes with Red Flag Laws, 52 Loy. U. Chi. L. J. 867 (Spring 2021). 

[4] Leah Asmelash, Indiana’s ‘Red Flag’ Law Should Have Prevented the FedEx Shotting. Here’s What Else You Should Know About These Laws, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/red-flag-laws-explainer-trnd/index.html.  The following states have implemented red flag laws: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington.

[5] Id.

[6] Dalafave, supra at note 3.

[7] Id.

[8] Id.  

[9] Rachel Harrison, Study Examines “Red Flag” Gun Laws and State Efforts to Block Local Legislation, NYU News Release (June 24, 2021), https://www.nyu.edu/about/news-publications/news/2021/june/red-flag-gun-laws.html.

[10] Id.

[11] Harrison, supra note 9.

[12] See Hope v. State, 163 Conn. App. 36 (2016) (holding the state’s red flag law does not violate the second amendment because “it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes”; Redington v. State, 992 N.E.2d 823 (upholding the constitutionality of Indiana’s red flag statute;  Davis v. Gilchrist County Sheriff’s Office, 280 So. 3d 524  (holding Florida’s red flag law is constitutional and does not violate the right to due process). 

[13] Harrison, supra note 9.

[14] Id.

[15] D.C. v. Heller, 554 U.S. 570, 626 (2008).

[16] Extreme Risk Laws Save Lives, Everytown Rsch. & Pol’y (Dec. 29, 2021), https://everytownresearch.org/report/extreme-risk-laws-save-lives/.

[17] Caniglia v. Strom, 141 S. Ct. 1596 (2021).

[18] Harrison, supra note 9.

[19] Id.

[20] Extreme Risk Laws, supra note 14.

[21] Asmelash, supra at 4.

[22] Harrison, supra note 9.

[23]Extreme Risk Laws, supra note 14.  Harrison, supra note 9.

[24] Extreme Risk Laws, supra note 14.

[25] Dalafave, supra at note 3.  Extreme Risk Laws, supra note 14.  See also Holmes Lybrand, Tara Subramaniam, & Daniel Dales, Fact-checking Biden’s Speech Announcing New Executive Actions on Gun Control, CNN (April 9, 2021), https://www.cnn.com/2021/04/09/politics/biden-gun-control-executive-actions-speech-fact-check/index.html (explaining that research on whether Extreme Risk Protection Order laws have decreased suicide rates is limited.  The national suicide rate has increased significantly since 1999, when the first law was introduced, but there has been a slight decline since 2019, when most red flag laws were put into effect.  The numbers have worsened in both states with and without red flag laws.  However, research has shown that in Connecticut and Indiana, the number of suicides by firearm were significantly lower than would have been expected without red flag laws). 

[26] Dalafave, supra at note 3. 

[27] Extreme Risk Laws, supra note 14.

[28] Matthew Larosiere & Joseph G.S. Greenlee, Red Flag Laws Raise Red Flags of Their Own, 45 L. & Psychol. Rev. 155 (2020-2021).

[29] Id. at 165.

[30] Id.

[31] Id.

[32] Asmelash, supra at 4.

[33] Exrtreme Risk Protection Orders, Giffords L. Cntr. To Prevent Gun Violence (2022), https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-orders/.

[34] Matt Vasilogambros, Red Flag Laws are Saving Lives.  They Could Save More, The Pew Charitable Trusts (Oct. 5, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/10/05/red-flag-laws-are-saving-lives-they-could-save-more.  Asmelash, supra at 4.

[35] Lybrand, supra note 23.