Red Flag Laws: The Future of Extreme Risk Protection Orders

By Shelby Arnold, MS; Alisha Desai, BSC; and David DeMatteo, JD, PhD, Drexel University An extreme risk protection order (ERPO), also known as a "red flag law" or "gun violence restraining order," allows law enforcement and — in some states — family members and mental health professionals to petition state courts to temporarily keep firearms out of the hands of people who are deemed to be a threat to themselves or others. Connecticut enacted the first ERPO law in 1999. Since then, at least six states (California, Florida, Indiana, Oregon, Vermont, and Washington) have enacted similar laws and 19 others are considering them, often in response to actual or threatened school shootings.
Under federal law, people with serious mental illness are not prohibited from owning a gun unless they have been involuntarily psychiatrically hospitalized or have a court disposition related to mental illness (e.g., not guilty by reason of insanity). ERPOs differ from existing federal and state law because they allow for preventive action in the absence of a civil disposition or criminal conviction.

ERPO laws are similar to those that restrict gun access for people convicted of a domestic violence offense, with some differences. Like ERPOs, domestic violence laws allow someone who feels in danger to seek a court order to restrict the alleged perpetrator's gun access based on threats of violence. However, domestic violence gun restriction laws are more limited in scope than ERPOs because they are designed to protect one person, whereas ERPOs are designed to protect anyone who may come into contact with the individual subject to the court order. Still, domestic violence gun restriction laws serve as a model for ERPO laws in terms of providing due process and withstanding constitutional challenges.

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ERPOs can restrict gun access for varying lengths of time if a civil court determines that an individual is dangerous based on threats or acts of violence, violation of a domestic violence protection order, or patterns of violence or threats. Brief ERPOs of two to three weeks can be granted on an emergency basis in response to an immediate threat, but longer restrictions on gun access require a judicial hearing. Depending on the state, ERPOs provide for the removal of existing firearms and prohibit someone from acquiring additional firearms.

Perhaps not surprisingly, ERPO laws are controversial. These laws may also overstate the relationship between gun violence and mental illness, which propagates stigma and may discourage people from seeking mental health treatment. Although research suggests ERPOs may prevent some suicides (Psychiatric Services, online first publication, 2018; Law and Contemporary Problems, Vol. 80, No. 2, 2017), there are limited data on whether they prevent violence toward others. Also, restricting gun access raises Second Amendment concerns relating to the right to possess firearms, although ERPO laws generally provide due process before imposing lengthier restrictions. As more states consider ERPO laws, mental health professionals can play an important role. Researching the effectiveness of these laws is challenging due to low base rates of gun violence perpetrated by people with mental illness (American Journal of Public Health, Vol. 105, No. 2, 2015) Lack of data points prohibits robust, data-driven conclusions. But mental health professionals can share their expertise in risk assessment and assist courts in making better-informed decisions that are consistent with our body of knowledge about the relationship between mental illness and risk of violence.

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