What are the rules for red flag guns?

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“We believe in the Second Amendment. Like many, we are struggling for good answers to our current problem of gun violence in America,” they wrote in a letter published as a full page ad in the Dallas Morning News.

What are red flag gun laws?

The process allows people to petition a civil court to temporarily remove that person’s firearms. Red flag laws are sometimes called extreme risk protection orders (shorthanded as ERPOs); gun violence restraining orders; or state crisis intervention orders.

These laws are meant to remove weapons from dangerous people before a crime or tragedy occurs — hence the phrase “red flag.”

Story Highlights

  • In Texas, more than 250 conservatives who identify as gun enthusiasts wrote a letter to Sen. John Cornyn, R-Texas, in support of restrictions, including red flag laws.

  • Cornyn is one of the senators negotiating with Democrats to provide federal grants to encourage states to pass red flag laws. Here’s how they work.

The mass shooter at Marjory Stoneman Douglas High School in Parkland, Florida, for example, was the subject of two tips to the FBI about his plans as well as multiple 911 calls about his behavior for years before the shooting.

Each state’s law sets rules for who can start the petition process. Some states only allow law enforcement to request the orders. Other states allow family members or close contacts, such as coworkers or teachers, to file a petition. Most petitions are filed by law enforcement, and they are usually granted by the courts.

The petitions generally ask for some sort of documentation. For example, petitioners in Maryland are asked to write on a form what behaviors lead them to believe the person poses an immediate danger by possessing a firearm. It also asks the petitioner to list the number, type and location of the individual’s guns and the individual’s past acts or threats of violence, substance abuse and criminal history. Once the court receives a petition, judges must follow their state law that explains what criteria a judge must or could consider.

In California, judges must consider whether the person has made threats, acted violently within the past six months or had a pattern of threats or violence over the past year. They must consider whether the person has violated a domestic violence emergency protective order or was convicted of a crime that would keep from legally keeping a firearm. A judge can consider evidence of alcohol or substance abuse. If the threat of harm is imminent, courts can issue an emergency order without a hearing ordering the removal of a person’s guns. But those orders only last from a few days to three weeks. Before issuing a final order, a court holds a hearing where the person can testify on their own behalf or bring a lawyer.

In most states, final orders can last up to a year, though they can be extended. Once the order is issued, the individual must surrender their firearms. For example, Colorado’s law says that individuals can either sell their firearms to a federally licensed dealer or arrange for storage by a law enforcement agency. If the individual owns an antique firearm, it can be transferred to an eligible relative who doesn’t live with them. In Broward County, Chief Judge Jack Tuter said around half of the individuals agree to the order because they don’t own a gun, and many others agree to turn over their firearm.

It is possible for someone who is undergoing the red flag law proceeding to separately face a criminal charge. But in many situations, there is no parallel criminal case. Courts in Connecticut, Indiana, and Florida ruled that the laws do not violate the process rights of respondents or are constitutional.

Critics of red flag laws say they lack due process, but that’s not accurate. These are civil proceedings where individuals can testify and face no risk of incarceration, Palm Beach State Attorney Dave Aronberg said. Prosecutors are only involved if someone violates an order, which is rare, Aronberg said. “In a very small or insignificant portion of the cases, the person actually fights the risk protection order and comes to court, and sometimes they win and sometimes lose,” Tuter said.