Can you imagine a judge signing an order allowing police to seize your firearms—even though you haven’t broken a single law?
There has been a nationwide push for “extreme risk protective orders” or “red flag” laws in recent years. Most notably, when announcing executive orders on gun control, President Biden called for a national red flag “model” law and for the federal government to use its purse strings to encourage all states to adopt such laws.
These laws are written to remove firearms from people who’ve been accused of conduct or language that may be seen as “dangerous.” What do you need to know about these orders from a legal perspective? Could they really be used to take away your Second Amendment rights? If a red flag order is served on you, what should you do?
First, you need to understand the history of these laws and how you can take preemptive action to make sure you retain your right to bear arms.
How did red flag laws start?
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended for this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them.
However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose.
Red flag laws generally begin with an “ex parte” court order (meaning the subject of the order isn’t notified of the proceeding or given an opportunity to respond) that prevents the person from owning, possessing, or transporting firearms and ammunition for a specified period of time. Most jurisdictions also allow for the extension of these orders for months or years if the affected individual is “deemed a threat” after an opportunity for a hearing.
What could happen if a red flag law is used against you?
Let’s imagine that every state in the country enacts a red flag law similar to California’s, called a “Gun Violence Restraining Order.” That law says you could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition for between one and five years.
And that order could be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person can ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that you still pose a significant danger of causing personal injury to yourself or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
In this hypothetical scenario, you could petition the court once per year—but not more than that—to ask for it to be lifted. But even one petition a year would entail another costly and time-consuming legal proceeding, with no guarantee of success.
As of this article’s publish date, 19 states and the District of Columbia have enacted versions of red flag laws. The federal government may entice many other states to follow suit over the coming months or years. Who knows what could happen in the future?
These uncertainties make the Legal Defense for Self-Defense Program from U.S. LawShield so necessary. In today’s complicated legal system, having an attorney knowledgeable in your state’s gun laws just one phone call away can help ease such worries. U.S. LawShield is the premier program that provides a proactive, attorney-based, education-focused approach to making sure law-abiding gun owners can have true peace of mind.