If an emerging bipartisan Senate deal on guns becomes law, one of the most significant provisions will be a federal push for states to set up red-flag laws. These laws allow a judge to take away someone’s gun based on the suspicion that they will use it to hurt themselves or others.
It’s an emerging approach to gun violence that is popular because it is proactive rather than reactive. And it’s significant that 10 Republican senators, along with 10 Democrats, have signed a statement indicating they are on board to push these laws at the state level: “Our plan saves lives while also protecting the constitutional rights of law-abiding Americans.”
Here’s what to know about red-flag laws, how they work, and the political and legal debates around them.
What they do
Red-flag laws allow police, family members or even doctors to petition a court to take away someone’s firearms for up to a year if they feel that person is a threat to themselves or others. Nineteen states and the District of Columbia — including two Republican-controlled states, Florida and Indiana — have some form of this law on the books.
That’s in contrast to federal law and laws in most other states that require someone to have been convicted of a felony, committed to a mental institution or on the receiving end of a domestic violence protection order before they can lose their right to a firearm, even temporarily.
Under red-flag laws, you don’t have to have a criminal record or a history of mental illness to lose your gun temporarily. If a judge is persuaded by an argument that you are a danger to yourself or others, police can take your guns away for days, weeks, months or a year.
You will also hear these laws called “extreme risk protection orders” — a term that gun policy experts favor because it doesn’t carry stigma for those on the receiving end of a petition.
State implementation of these laws varies widely. Florida’s version is relatively narrow, allowing only law enforcement to petition the courts to take away someone’s guns. Maryland and D.C. allow mental health providers to petition. New York allows school officials, and Hawaii allows co-workers.
Do these laws work?
The consensus is that they do seem to work when properly enforced — though it’s hard to prove, because the absence of gun violence is the measure. A study of California’s law after it was enacted in 2016 found at least 21 instances in which a gun was taken away from someone threatening a mass shooting. Most were White men, and most had made explicit threats.
In a state with an entirely different political culture, Florida, judges have used a red-flag law to act more than 8,000 times over the past four years to temporarily take away people’s guns, CNN recently reported: “In just the last two months, [federal judge Denise Pomponio] has taken away the firearm privileges of dozens of people,” including a dad who allegedly threatened to “shoot everyone” at his son’s school and a woman who police say attempted suicide.
An FBI study cited by the gun-control advocacy group Giffords found that the average shooter displays several concerning behaviors and experiences, including dealing with multiple stressors in the year before the attack, taking a week or so to prepare for the attack, having troubling personal interactions, or sharing their violent intent with someone.
Gun policy experts also praise red-flag laws for another reason: preventing suicide. Without these kinds of laws, a parent, spouse or other relative doesn’t have much recourse to prevent violence that they fear is imminent, researchers at Johns Hopkins Bloomberg School of Public Health say: “State laws often do not provide a clear legal authority to restrict access to guns before a tragedy occurs.”
Suicide is the No. 2 leading cause of death for teens, and Johns Hopkins researchers argue that red-flag laws can make it so “youth don’t have easy access to guns when they are most at risk.”
“You see very consistently the types of behaviors and the patterns and the expressions of harm that I think most reasonable people would agree, gosh, there’s something going on with this person right now, and it’s just not a good idea for them to have access to a gun,” Shannon Frattaroli, a professor at Johns Hopkins who studies and advocates for these laws, told Axios.
The argument against these laws
Gun rights groups — from the National Rifle Association on down — generally oppose these laws. Their main argument is that they violate an individual’s “due process,” because often the initial petition doesn’t require the person to be present in court. Family members or police have used texts, voice mails or notebooks belonging to the gun owner to make their case.
“Due process is a concern to be taken seriously, making sure people do have a chance to be heard,” said Jake Charles, executive director of the Center for Firearms Law at Duke University.
But he said these laws mimic child-custody cases, in which an emergency hearing may be held if someone is in imminent danger, and then another hearing can take place later to hash out the details: “It’s squarely within what the Supreme Court has established is someone’s due process,” Charles said.
Officials must detect and act on concerning behaviors for the laws to work. New York has a red-flag law, but the alleged Buffalo shooter, then 17, had police called on him because he made threatening statements at school — and his rifle was not taken away, because police didn’t petition the court for it. After the Buffalo shooting in May, the state’s Democrats quickly passed an expanded red-flag law that also will allow mental health professionals to petition the court and require social media companies to flag credible threats of violence.
Why some Republicans support red-flag laws
In 2018, Florida Republicans were on the leading edge of this after the massacre at a high school in Parkland. The warning signs were so obvious — the shooter had been the subject of dozens of 911 calls before he carried out the attack — that lawmakers felt they had to act.
“I knew the time for thoughts and prayers, although necessary, was not enough,” Bill Galvano (R), the Florida lawmaker who introduced the legislation after touring the devastated high school, told CNN.
In addition, some gun rights groups support these laws because they don’t target all gun owners (in the way of, for example, expanded background checks) and instead let the government intervene in potentially dangerous situations.
A conservative sheriff in Florida, Polk County’s Grady Judd, also defended the law to CNN as a “cooling-off period” rather than an infringement on the Second Amendment.
Sen. Rick Scott (R-Fla.), who was governor at the time, signed the red-flag law alongside other gun-control measures, over the objections of the NRA.
Today, no Republican — even Scott — is suggesting implementing this on a federal level. But they are okay with nudging states toward these kinds of laws, with grants. Scott and Sen. Marco Rubio (R-Fla.) introduced a bill to do just that, and a bipartisan group in the Senate seems to have found 10 Republican senators to support this, among other narrow measures. Their approval, plus that of all 48 Democrats and the two independents who caucus with the Democrats, would be enough to overcome a filibuster by conservative senators.
