Ohio has a red flag law

Law of the Red Flag - Red flag law

Weapons Act, which allows the temporary removal of firearms
States with anti-red flag laws
States with red flag laws

In the United States is a Law with a red flag a gun law that allows police or family members to order the temporary removal of firearms from a person who may pose a danger to others or themselves in a state court. A judge makes the decision to issue the order based on the testimony and actions of the gun owner concerned. Refusal to comply with the order is a criminal offense. After a set period of time, the weapons will be returned to the person from whom they were confiscated, unless another court hearing extends the confiscation period.

Orders issued under "red flag" laws, also called risk based weapon removal laws are known by various names including Extreme Risk Protection Orders ( ERPoS ) (in Oregon, Washington, Maryland, Vermont, and Colorado); Weapon protection regulations with extreme risk ( ERFPO ) (in New Mexico); Risk protection mandates (in Florida ); Gun Violence Restraining Orders ( GVROs ) (in California ); Risk approvals (in Connecticut); and Procedure for the seizure and storage of a firearm (in Indiana). As of April 2020, 19 states and the District of Columbia have passed some sort of red flag law. The specifics of the laws and the degree of their application vary from state to state.

History and adoption

In 1999, Connecticut became the first country to pass a red flag law after a Connecticut Lottery rampage. It was followed by Indiana, which passed its legislation in 2005 - Called Jake Laird's Law after an Indianapolis police officer was fatally shot by a mentally ill man. The following red flag laws were passed by California (2014), Washington (2016). and Oregon (2017). California was the first state to pass a red flag law that allowed family members to seek courts to take guns from people classified as a threat after Elliot Rodger committed mass shootings in Isla Vista, California. California law also allows law enforcement officers to file a request for gun removal from a person for up to twelve months.

Prior to 2018, only the above five states had a version of the red flag laws. After filming Stoneman Douglas High School in Parkland, Florida in 2018, that number more than doubled as more states passed such laws: Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, and Illinois the District of Colombia.

In 2019, New York passed a red flag bill as part of a larger package of guns legislation that the state legislature passed overwhelmingly. In addition to allowing police and family members to apply for an Extreme Risk Protection Order, the law allows teachers and school administrators to submit such petitions. This makes New York the first state to contain such a provision. Three other states passed red flag laws in 2019: Colorado, Nevada, and Hawaii. The laws of Colorado, Nevada, and Hawaii all went into effect on January 1, 2020.

In 2020, New Mexico became the 18th state to pass red flag law after Governor Michelle Lujan Grisham signed law on February 25, 2020. New Mexico law went into effect July 1, 2020.

In Virginia, the state general assembly, then controlled by Republicans, voted on the red flag legislation at its January 2019 session. After the shooting in Virginia Beach later that year, Democrat Governor Ralph Northam called the Republican-controlled General Assembly for a special session to consider gun control legislation. The legislature has not voted on any weapons legislation. After the Democrats took control of both chambers of the General Assembly for the first time in more than two decades in the fall 2019 elections, Northam vowed to reintroduce gun control proposals, including a red flag law. The General Assembly then passed a law on the "extreme risk protection order" (red flag) via a party line vote in the Senate and an almost party line vote in the House of Representatives. Northam signed the bill in April 2020 along with four separate weapons measures.

Proposed or pending legislation

Other state lawmakers looked at similar laws. Red flag bills were considered in 2019 but failed in the following states:

  • North Carolina: As of 2018, the red flag bills introduced by the Democratic legislators in North Carolina have been defeated or blocked on the committee of the Republican-controlled State House. North Carolina Governor Democrat Roy Cooper supports the legislation.
  • Ohio: Following the Dayton shooting, Ohio Republican Governor Mike DeWine announced that he would like the Republican-controlled legislature in Ohio to pass red flag law. However, two months later, DeWine withdrew from that proposal.
  • Tennessee: A red flag bill was introduced into Tennessee legislation, but in 2019 the Republican-controlled legislature refused to take up the bill and Governor Bill Lee made no commitment to endorse it.
  • Similar laws were proposed but not passed in Pennsylvania, Michigan, Nebraska, and Kentucky.

In 2020


A 2018 American Psychiatric Association resource document on risk-based gun removal laws indicates that all of these laws are "intended to address crisis situations where there are acute concerns about a person's access to firearms," ​​but the specific provisions of those laws differ from state-to-state, different on issues such as "who can initiate the weapon removal process, whether a warrant is required, what factors the court must consider before ordering weapon removal, what must be demonstrated in court, and how." long guns are restricted? " and what process is used to restore the person's access to firearms. "

For example, in Indiana, only law enforcement agencies can file an order. This aspect of state law came under scrutiny after a mass shooting of a 19-year-old man previously held in a psychiatric prison who had confiscated a shotgun, and then bought the guns he was used in after the shooting Failure by the authorities to apply for an order. In Oregon, by contrast, anyone who lives with that person can petition.

California law passed a measure in 2016 to allow high school, college, staff, and mental health professionals to file such petitions. However, this legislation was rejected by Governor Jerry Brown. However, similar legislation was signed by Governor Gavin Newsom in 2019. With the law that came into force on January 1, 2020, the list of people who can apply for GVROs is expanded to include "an employer of the subject of the petition". "an employee of the subject of the petition if he has had" substantial and regular interactions with the subject "for at least a year and has received employer approval"; and "an employee or teacher of a school who has attended the subject in the past six months, if the employee or teacher has received approval from the administrators."

In California, it is an offense for a person to file a GVRO petition "if they know the information in the petition is incorrect or with the intent to harass".


One in the magazine Law and Contemporary Problems A 2016 study published analyzed data from the 762 Connecticut Risk Warrant Act weapon removals from October 1999 to June 2013 and found that "for every 10 to 11 gun seizures, one suicide was averted." The researchers concluded that "the enactment and implementation of laws such as the Connecticut Arrest Warrant Act in other states could significantly reduce the risk of this small proportion of legal gun owners, who at times can pose a significant threat to themselves or others."

In one in the magazine Psychiatric Services Published 2018 study, CDC data of all suicides in all 50 states from 1981 to 2015 was used to "examine the impact of the Connecticut and Indiana risk-based firearms seizure law on the state-level firearm suicide rate." The researchers concluded that "Indiana's Firearms Seizure Act was linked to a 7.5% reduction in firearm suicides in the ten years after it came into force. The Act saw a 1.6% reduction in firearm suicides % linked immediately after its enactment and a 13.7% decrease in gun suicides in the period according to Virginia Tech when law enforcement increased significantly. "The study also found that" throughout Indiana showed an aggregate decrease in suicides , Connecticut's estimated reduction in firearm suicides has been offset by increased non-firearm suicides. "

A preliminary case series to be released in 2019 Annals of Internal Medicine published analyzed the use of ERPOs in California and found that the cases examined suggest that California's Red Flag Act as a form of "urgent, individualized intervention ... may play a role" in efforts To prevent mass shootings. "

Given that 62% of U.S. gun deaths from 2008 to 2017 were suicides, the potential of suicide prevention laws has been cited as a benefit that may be more valuable than their ability to prevent mass shootings.


An analysis of the Baltimore Sun from October 2020 found that states with red flag laws varied significantly in the rate at which such laws were applied. Applied on a per capita basis and in force per day, Florida has applied its red flag law the most frequently (9.4 orders per year per 100,000 population), followed by Maryland (8.2 orders per year per 100,000 population). . One factor in different usage rates is whether a state has courts that allow petitioners to place an order outside of business hours and on weekends.

Florida red flag orders were issued 2,227 times between March 2018 (when the law came into effect) and July 2019. State judges issued requests for temporary orders in approximately 97% of cases and requests for definitive orders in 99% of cases. In many cases (up to 90% in Broward County) the respondent agrees to the order. The volume of petitions varies from district to district.

In California, 189 applications for the restriction of gun violence were granted in 2016 and 2017. Of these, 12 petitions were filed by family members while the rest were filed by law enforcement agencies.

Maryland's state courts issued 989 weapons removal orders from October 1, 2018 (the date the law came into effect) through October 2020. The Maryland courts grant just over half of the petitions submitted. In the first three months of state law, about 60% of petitions were submitted by family or household members, one petition by a health care worker, and the rest by the police. In November 2018, a Maryland man was killed by Anne Arundel County police officers who issued a deportation warrant after refusing to hand over his firearms. Police said there was a gun battle and a shot was fired before officers fatally shot the man.

In Marion County, Indiana (which includes Indianapolis and most of the applications of the Indiana ERPO Act), a 2015 found in the journal Behavioral Sciences & the Law published study that between 2006 and 2013, 404 applications for seizure were brought before the court in persons who were found to be at risk of suicide (68%), violence (21%) or psychosis (16%). The study found that 28% of firearm seizures were related to a domestic quarrel and 26% to poisoning. The study found that "63% of the seized firearms were held by the court at the first hearing; this holding was closely related to the defendant's failure to appear at the first hearing. The court dismissed 29% of the cases at the closely related to the defendant's presence at the hearing. In subsequent hearings of cases that were not dismissed, the court ordered the firearms to be destroyed 72% of the time, all if the person did not appear and dismissed 24% of the cases. all if the person was present at the hearing. "

In Connecticut, between October 1999 and July 2013, according to a 2014 study in the Connecticut Law Review 764 "imminent risk" seizures carried out. Of the arms confiscation orders served, 91.5% were men and 8.5% were women, and the average age was 47.4 years. Police reports related to gun seizures in Connecticut from 1999 to 2013 showed that at the time of the seizure, about 30% of affected gun owners "showed signs of alcohol consumption" and about 10% said they were using prescribed pain medication. At the time the arrest warrants were served, the majority of gun owners (60% of men and 80% of women) were sent to an emergency room at a local hospital for an emergency assessment. A minority (20%) were arrested. The study found that "over 70% of the cases, the outcome of the hearings was unknown. In the cases with reported results, the judges ruled that 68% of the guns had to be held by the state. Guns were returned in only Twenty of the reported cases. In fifteen other cases, guns were handed over to a family member; in thirty cases the guns were destroyed. "

In the first 16 months that Vermont law went into effect, state courts issued about 30 extreme risk orders.

In the first 22 months that Oregon law was in effect (January 1, 2018 through October 31, 2019), Oregon received 166 Extreme Risk Protection Orders. Of the 166 petitions, 112 concerned people at risk of suicide and 39 related to domestic violence. 26 petitions related to both suicide risk and domestic violence. A review by Oregon Public Broadcasting found that the petitions concerned people in crisis, with the majority of petitions citing "multiple factors such as threats of violence, use of physical violence, possession or attempt to buy lethal weapons, previous convictions, and use of controlled substances" . "" The Oregon courts approved 122 petitions (73% of those submitted). The remaining 44 petitions (27% of those submitted) did not result in a decision being issued, either because a judge rejected the petition (in 32 cases) or because the application was withdrawn (in 12 cases). The counties differed greatly in how the process was used: most petitions were filed in Washington and Multnomah counties, while 11 counties did not issue ERPOs and 7 counties issued a single ERPO.

Federal legislative proposals

Senator Dianne Feinstein, a Democrat of California, introduced a bill, the Extreme Risk Protection Order Act (p. 506), that would allow states to use grants to develop red flag laws. The legislation is supported by 25 Democratic Senators and two Democratic independent Senators. Florida Republican Senator Marco Rubio introduced a separate bipartisan bill that was supposed to use grants to help pass state red flag laws. South Carolina Republican Senator Lindsey Graham said in 2019 he also plans to introduce laws to encourage states to pass red flag laws. Another proposed federal law on the red flag is the Law to Protect Our Communities and Rights by Rep. John Katko, which "places the burden on the state or the petitioner to establish, through clear and convincing evidence, that the respondent has an immediate, specific and significant matter." Represents risk. " illegally using a firearm to kill or seriously injure yourself or another person. "

P. 506 and other proposed bills would add persons subject to extreme risk prevention orders to the "Prohibited Persons" list in 18 USC Section 922 (g) (persons prohibited from possession of a firearm). The legislation would therefore "make it a federal crime for those ordered to possess firearms and anyone else who has reasonable cause to know about the order to sell or dispose of firearms". In September 2019, the House Judiciary Committee approved amendments to the federal red flag law to create a national red flag trial.

During the 2019 Democratic presidential nomination campaign, Senator Kamala Harris of California called for legislation to create "Domestic Terrorism Prevention Regulations" that would "allow law enforcement and family members of suspected white nationalists or terrorists domestically to filing a motion to the federal court to temporarily restrict a person's access to weapons if the person has clear evidence of a hazard. "In states with red flag laws, individuals who make credible threats of violence may already be subject to weapon removal orders. Matt Olsen, former director of the National Counter-Terrorism Center during the Obama administration, said that if Harris' proposal moves forward, it is important that legislation stipulate that a person should not be based solely on their First Amendment protected activity can be viewed as a domestic terrorist (as openly expounding white nationalist beliefs).

Judicial review

So far, the red flag laws have been complied with against the challenges of the second amendment, although the scope of relevant case law is limited. In Hope v. State (2016) the Connecticut Court of Appeals concluded that the state's Firearms Removal Act does not violate the second amendment because it "does not restrict the right of law-abiding, responsible citizens to use guns to defend their homes." " The court viewed the Connecticut statute as an "example of the longstanding" allegedly lawful regulatory measures "that followed the ruling of the US Supreme Court in the United States Heller v District of Columbia case are permitted. Similarly, the Indiana Court of Appeals came in Redington versus State (2013) concluded that the Indiana Red Flag Act does not violate the right to keep and carry weapons, was not an unconstitutional decision, and was not unconstitutional. In Davis v Gilchrist County Sheriff's Office (2019), the Florida First District Court of Appeals also denied a challenge to the Florida Red Flag Act, finding that the law is constitutional and does not violate due process. A lawsuit against Nevada's red flag law is pending.

Support and opposition

Public opinion

An April 2018 poll found that 85% of registered voters support laws that would allow police to take guns away from anyone judged by a judge to be a danger to themselves or others (71% "strongly support" while 14% "support something" such laws). State-level surveys in Colorado and Michigan have shown similar support. One published in September 2019 PBS NewsHour / NPR / Marist poll found 72% of Americans were in favor of passing a federal red flag law, while 23% were against.

Interest groups and elected officials

Democrats and some Republicans are receptive to this bill. Such laws are supported by groups that support gun control such as the Brady Campaign to Prevent Gun Violence and Everytown for Gun Safety. The latter group conducted a nationwide study which found that the perpetrators of mass shootings showed warning signs 42% of the time before the event.

Opponents of the Red Flag laws argue that such laws violate constitutional rights such as the right to bear arms and the right to be protected from improper searches and seizures and Ex part- Decline hearings. There was debate about how soon after the ex parte hearing the adversarial hearing should take place. In Virginia, for example, the state Senator Glen Sturtevant argued that lawmakers should consider calling for a controversial hearing on the order within 48 hours, not 14 days.

The National Rifle Association (NRA) had previously argued that red flag laws unnecessarily interfered with the right to due process of those who were withheld by them, and worked to thwart such laws in Utah and Maryland. In a policy reversal in March 2018, the NRA proposed supporting such laws, but conditioned any openness to such laws on an extensive list of conditions, including a judicial determination through "clear and convincing evidence" that the person was at significant risk represents caution. The NRA did not identify any federal or state red flag laws it endorsed and continued to work to defeat or weaken the red flag laws introduced in state legislatures even after its announcement in March 2018. In the summer of 2018, the NRA mobilized first hearings to thwart Pennsylvania's proposed red flag legislation for refusing to do so ex parte to allow. In Arizona in 2019, the NRA wrote a statement for sheriffs to take to the local press outlining their opposition to the legislation. A 2019 study by gun attorney John Lott found that red flag laws did not have a material impact on murder, suicide, the number of people killed in mass shootings, robberies, assaults, or break-ins.

The Rhode Island ACLU spoke out against such a law, stating that "People who are not charged with committing a crime should not be subjected to serious imprisonment ... without clear, compelling, and prompt evidence of necessity. " As well-intentioned as this legislation is, its breadth and milder standards for applying for and granting an ERPO are cause for great concern. "

Some counties and cities have passed Second Amendment Sanctuary resolutions that violate red flag laws. By 2019, 75 jurisdictions had declared themselves protected areas opposing emergency protection orders and the enforcement of background checks on weapons, sometimes with the support of the NRA.

Following the shots in El Paso, Texas and Dayton, Ohio on August 4 and 5, 2019, President Donald Trump urged states to implement red flag laws to remove weapons from "those who are at serious risk for." represent public safety ". Trump was not advocating any particular law, however, and Republican Senate Majority Leader Mitch McConnell said he would allow gun laws to be brought into the Senate only if they had Trump's support. Gun rights groups campaigned to deter Trump To support red flag laws or other gun control measures, and said calling for red flag laws could cost Trump the 2020 presidential election In November 2019, Trump abandoned the idea of ​​proposing bills or other laws to curb gun violence to submit.

Law against the red flag of Oklahoma

In May 2020, Oklahoma became the first and so far only state to pass a law against the red flag. The law "expressly forbids any state or city, county, or political division from enacting red flag laws."

In November 2020, Texas lawmakers tabled House Bill 336, which, should it go into effect, would make Texas the second state to ban red flag confiscation laws at both state and local levels. House Bill 336 will be taken into account during the 2021 session of the Texan Legislature.

See also


External links