What Are Red Flag Laws and How Do They Work?

Red flag laws, legally known as Extreme Risk Protection Orders, allow U.S. courts to temporarily remove firearms from individuals who pose a measurable danger to themselves or others, while preserving constitutional due process rights.

According to the National Conference of State Legislatures (NCSL), 21 U.S. states and the District of Columbia enforce red flag laws as of 2024. These laws are formally titled Extreme Risk Protection Orders (ERPOs) and are designed to prevent firearm-related harm before violence occurs.

Red flag laws are one of the most debated firearm policies in modern American law. Supporters cite suicide prevention and mass violence reduction. Opponents raise concerns about misuse, false accusations, and constitutional protections.

What Is a Red Flag Law Under U.S. Law?

A red flag law is a state-level statute that authorizes a judge to issue a temporary civil court order restricting a person’s access to firearms when credible evidence shows a significant risk of harm.

The legal name used in statutes is Extreme Risk Protection Order (ERPO).

Core Legal Purpose

The purpose of a red flag law is to:

• Prevent gun-related suicide
• Reduce domestic violence fatalities
• Stop credible threats of mass shootings

According to the Centers for Disease Control and Prevention (CDC), firearms account for 55% of all U.S. suicides, totaling over 26,000 deaths per year. Red flag laws focus on risk behavior, not criminal history or mental health diagnoses.

How Red Flag Laws Work Step by Step?

Red flag laws follow a structured legal process, not an instant firearm seizure.

Step 1: A Petition Is Filed in Court

A formal petition is submitted to a civil court by an authorized individual. Authorized petitioners vary by state and may include:

• Law enforcement officers
• Immediate family members
• Household members
• Medical professionals (in 6 states)
• School administrators (in 4 states)

California, Colorado, and New Jersey permit law enforcement and family members to file petitions.

Step 2: Evidence of Risk Is Presented

The petitioner must provide specific, documented evidence, such as:

• Threatening statements made within the past 30 days
• Attempted suicide or self-harm within the past 12 months
• Brandishing a firearm during a domestic dispute
• Repeated violent behavior toward named individuals

General fear or political disagreement does not meet the legal standard.

Step 3: Emergency (Ex Parte) Order May Be Issued

A judge may issue a temporary emergency ERPO without the respondent present.

Key limits:

• Duration: 7 to 14 days, depending on state law
• Standard: Probable cause, not suspicion

Firearms are surrendered to:

• Local law enforcement
• A licensed Federal Firearms Dealer (FFL)

Step 4: Full Court Hearing Is Scheduled

A hearing must occur within the emergency period. At the hearing:

• The respondent can present evidence
• Witnesses may testify
• Legal counsel is permitted
• Cross-examination is allowed

The burden of proof is typically clear and convincing evidence, a higher standard than probable cause.

Step 5: Final ERPO Decision

A judge may:

• Dismiss the case
• Issue a final ERPO lasting 6 to 12 months

Washington State allows ERPOs for 364 days. California allows 1 year.

Step 6: Firearm Rights Are Restored

Firearm rights are restored automatically when:

• The ERPO expires
• The judge terminates the order early

The respondent does not receive a criminal record from an ERPO alone.

Which States Have Red Flag Laws?

Who Can Request a Red Flag Order?

Eligibility depends on state law.

Common Petitioners by Category

• Law enforcement: authorized in 100% of ERPO states
• Family members: authorized in 15 states
• Medical professionals: authorized in 6 states
• Educators: authorized in 4 states

New York restricts petitions to law enforcement and district attorneys only.

What Happens to Firearms During an ERPO?

Firearms must be surrendered within 24 to 72 hours.

Storage options include:

• Police department evidence facilities
• Licensed gun dealers
• Court-approved third-party custodians

Firearms cannot be destroyed without a criminal conviction.

Due Process Protections Built Into Red Flag Laws

Red flag laws include constitutional safeguards.

Due Process Elements

• Judicial oversight required
• Time-limited orders
• Mandatory hearings
• Right to legal counsel
• Right to appeal

The U.S. Supreme Court has not ruled red flag laws unconstitutional as of 2025.

Red Flag Laws and the Second Amendment

The Second Amendment protects the right to keep and bear arms. Red flag laws regulate temporary possession, not ownership.

Federal courts analyze ERPOs using:

• Intermediate scrutiny
• Historical analog tests after New York State Rifle & Pistol Association v. Bruen (2022)

Several federal courts upheld ERPO statutes post-Bruen, including rulings in Colorado and Connecticut.

Do Red Flag Laws Reduce Violence?

Suicide Prevention EvidencA study published in Psychiatric Services found:

• 1 suicide prevented for every 10 to 20 ERPOs issued

Mass Violence Prevention

Indiana reported 39 credible mass shooting threats disrupted between 2015 and 2022 using ERPOs.

Common Misconceptions About Red Flag Laws

“Anyone can falsely accuse you”

Judicial review and evidentiary standards prevent random accusations.

“ERPOs target mental illness”

Behavioral risk, not diagnosis, triggers ERPOs.

“Firearms are permanently taken”

Firearms are returned when orders expire.

Red Flag Laws vs Other Gun Control Measures

Federal Government Role in Red Flag Laws

Red flag laws are state laws, not federal mandates.

The Bipartisan Safer Communities Act (2022) provides:

• $750 million in state grants
• Training for law enforcement
• Data reporting standards

Final Thoughts

Red flag laws are preventive legal tools, not punishment systems. These laws aim to stop irreversible harm during moments of crisis, while preserving constitutional rights through judicial oversight.

Understanding how ERPOs work empowers families, communities, and lawful gun owners to navigate these laws responsibly.

Public safety and civil liberties are not opposing forces. Balanced laws exist to protect both, when applied with evidence, transparency, and accountability.

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