by Michael Barbella
Federal gun safety legislation signed into law by President Joseph Biden in June 2022 includes $250 million for the establishment of state crisis intervention court proceedings, including extreme risk protection orders (ERPO).
Depending on what state you’re in, these orders could be called extreme risk firearm protection orders, risk protection orders, gun violence restraining orders, emergency substantial risk orders or simply risk warrants. All of these orders fall under the umbrella of red flag laws, and 19 states, along with the District of Columbia, have them.
Red flag laws authorize courts to temporarily disarm individuals by removing firearms from those who pose a threat to themselves or others. These laws vary slightly by state—usually in who can file a petition for the order. Florida, for example, limits ERPO petitioners to a law enforcement officer or agency, while New York extends the right to petition the court to family members, as well as teachers and school administrators.
New Jersey’s law, enacted in 2019, stipulates that the request for an ERPO can come from law enforcement, a family member or a member of the household. The person whose weapons are to be seized has the opportunity to be heard in court within 10 days where they can present evidence that they are not a danger to themselves or others. At that time, a judge issues a final order where the petition to keep the weapons from the gun owner is either granted or denied. If the petition is granted, it lasts indefinitely; however, the gun owner can seek to have the order terminated through the courts.
According to data compiled by NJ Advance Media, there have been nearly 1,000 gun seizures since the state’s red flag law went into effect. In 200 of those cases the gun owners were given their weapons back. In 500 cases the orders were made permanent. The status of the remaining cases, according to state records, is unresolved.
Attorney General Matthew Platkin told NJ Advance Media, “To be clear, this is not about taking guns away from law-abiding citizens. This is about keeping the public safe, preventing tragedies, and saving lives.”
Are they effective?
Gun safety advocates contend that red flag laws are crucial tools to prevent gun violence. They cite research from various sources as to their effectiveness. A University of California study, for example, found that between 2016 and 2018, California’s red flag law was used to confiscate weapons from 58 individuals who were threatening to carry out a mass shooting. Six of those cases involved minors who had targeted schools. According to a 2020 report, published by Everytown for Gun Safety, a nonprofit that advocates for gun control, the gunmen in more than half of all mass shootings between 2009 and 2020 displayed warning signs before the attack, particularly in cases of school shootings.
“Removing firearms during crisis situations allows for mental health intervention or law enforcement investigation, and can prevent tragedies from occurring,” said Jennifer Pomeranz in a press statement. Pomeranz is a professor at New York University’s School of Global Public Health, and lead author of a 2021 study on the national landscape of red flag laws. “Research shows that prior to an attempted suicide or homicide, there are warning signs that a shooter intends to act,” said Professor Pomeranz.
The U.S. House of Representatives passed a bill in June 2022 creating a federal red flag law, but the legislation failed in the U.S. Senate, never making it out of committee. The bill was sponsored by U.S. Representative Lucy McBath of Georgia, who lost a teenage son to gun violence in 2012.
“Red flag laws work to prevent school and mass shootings,” Rep. McBath told The New York Times. “They work to keep those who may be contemplating suicide from accessing a weapon. They can be used to keep guns out of the hands of those who should not have them.”
Opponents of red flag laws contend that they don’t work, noting that they failed to prevent several high profile shootings including the May 14, 2022 attack at a Buffalo, NY supermarket, where 10 people were killed and three wounded; the July 4, 2022 mass shooting in Highland Park, IL, where seven people were killed, and 48 wounded; and the January 21, 2023, shooting in Monterey Park, CA, where 11 people were killed and 10 wounded.
Associated Press statistics show that red flag laws are not used often. Since 2020, analysis of all 19 states and the District of Columbia found that these statutes were leveraged 15,049 times to remove firearms from potentially dangerous individuals—fewer than 10 per 100,000 adult residents.
“It’s too small a pebble to make a ripple,” Duke University sociologist Jeffrey Swanson who studies red flag laws, told PBS News Hour. “It’s as if the law doesn’t exist.”
In an op-ed for The Washington Post, Veronica Pear, a professor in the Violence Prevention Research Program in the Department of Emergency Medicine at the University of California at Davis, wrote that this was a failure of implementation, not a failure of the laws themselves. She claimed there is “compelling evidence that red flag laws can help prevent mass shootings,” pointing to the 58 cases in California where ERPOs were used to stop mass shooting threats.
“Importantly, red flag laws can help reduce firearm violence beyond mass shootings. They are primarily used in response to threats of self-harm or interpersonal violence,” Professor Pear wrote. “This ‘everyday’ violence constitutes 99% of firearm deaths each year. We have strong evidence that ERPOs are preventing firearm suicide, with an estimated one suicide prevented for every 10 to 20 orders removing firearms.”
In an interview with National Public Radio, April M. Zeoli, a professor at the University of Michigan’s School of Public Health and a director at its Institute for Firearm Injury Prevention, who is collecting data on red flag laws in six states, said she has already seen in her research that red flag laws are used unevenly. She also said that pointing to ERPOs as a prevention to mass shootings is hard to prove.
“Being able to say this year you didn’t have any mass shootings and that’s because of extreme risk protection orders is difficult because you may not have had any anyway,” Professor Zeoli said.
What about due process?
Some gun rights advocates have taken things a step beyond simply not implementing red flag laws. In Oklahoma, lawmakers passed the Anti-Red Flag Act. The law, passed in May 2020, prohibits the state, city, county or political subdivision from enacting a red flag law. In addition, the law prohibits accepting grant funding to enact a red flag law.
“Red flag laws would circumvent our laws, stripping American citizens of their rights to due process under the law,” Oklahoma State Representative Jay Steagall, author of the bill, said in press statements when it was signed into law.
“The foundation of due process is that everyone gets notice and an opportunity to be heard before the government can take away your life, liberty, or property,” says Louis Moffa, an adjunct law professor at Rutgers Law School in Camden and a Cherry Hill attorney.
Moffa notes that the main criticism of red flag laws is a lack of due process, but he points out that the laws require that the subject be given a hearing within a short period of time after the law is put into effect by a judge and firearms are seized.
“So, the ‘taking’ of property is only temporary and very short-term prior to a full hearing, where the person can make arguments in court about why the law should not apply in their case,” Moffa says.
Most gun rights advocates argue that the Second Amendment right to bear arms is absolute. Moffa says that is “plainly wrong.”
“None of the rights protected in our Constitution are ‘absolute.’ All of them have limits and exceptions,” Moffa says. “For example, the First Amendment plainly says that Congress ‘shall make no law’ that infringes on the right to speech. But the courts have consistently held that the government can impose reasonable time, place, and manner restrictions on speech, and there are numerous exceptions to what otherwise could be protected ‘speech.’ As a result, there is no reason why the government could not impose ‘reasonable’ restrictions on gun ownership, and that is precisely what the U.S. Supreme Court said in the famous Heller case.”
Moffa is referring to the 2008 case of District of Columbia v. Heller in which the U.S. Supreme Court protected a citizen’s right to possess a handgun; however, the majority opinion, written by Justice Antonin Scalia also stated: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…”
Discussion Questions
- Proponents of red flag laws contend that they save lives, while opponents say they don’t make a difference. Statistics for both sides were outlined in the article. Which argument do you find more compelling? Explain your answer.
- What do you think of the due process argument against red flag laws?
- What do you think of the notion that the Second Amendment right to bear arms is absolute?
Glossary Words
due process — legal safeguards that a citizen may claim if a state or court makes a decision that could affect any right of that citizen.
statute — a particular law established by a legislative branch of government.
This article originally appeared in the spring 2023 issue of The Legal Eagle—Special Gun Safety Edition.
BONUS SIDEBAR: New Jersey Gun Safety Statistics
Gun Deaths Over Time
In New Jersey, the rate of gun deaths decreased 10% from 2011 to 2020, compared to a 33% increase nationwide. The rate of gun suicides decreased 6% and gun homicides decreased 13% compared to a 12% increase and 70% increase nationwide, respectively.
Cost of Gun Violence
New Jersey has the 3rd lowest societal cost of gun violence in the US at $594 per resident each year. Gun deaths and injuries cost New Jersey $5.3 billion each year, of which $168.9 million is paid by taxpayers.
Gun Death by Intent
In New Jersey, 42% of gun deaths are suicides and 56% are homicides. Every year, an average of 185 people in New Jersey die by gun suicides and 11 are wounded by gun suicide attempts—a rate of 1.9 suicides and 0.1 suicide attempts per 100,000 people. New Jersey has the lowest rate of gun suicides and gun suicide attempts in the United States.
Children and Teen Gun Deaths
Guns are the 3rd leading cause of death among children and teens in New Jersey. On average, 36 children and teens die by guns every year in New Jersey. Of those deaths, 15% are suicides and 81% are homicides.
Source: Centers for Disease Control and Prevention