Summary
Nineteen states and the District of Columbia have already enacted extreme risk laws (also known as red flag laws). As Congress considers federal legislation, here’s what you need to know to respond to common myths.
Myth
Extreme risk laws are unconstitutional because they violate the Second Amendment.
Fact
The Supreme Court has clearly stated that while the Second Amendment gives law-abiding, responsible citizens the right to have a handgun in the home for self-defense, this right is not absolute. Courts across the country have overwhelmingly confirmed that there is no conflict between reasonable, common sense gun laws and the Second Amendment. Extreme risk laws are carefully crafted, commonsense measures that create a process to temporarily keep guns away from people found by a court to be a serious risk to themselves or others, while protecting the rights of all involved. In fact, extreme risk laws have already faced constitutional challenges and courts have found that they do not violate the Second Amendment and similar state constitutional provisions.
Myth
Extreme risk laws are unconstitutional because they lack due process.
Fact
Extreme risk laws allow a judge to temporarily remove a person’s access to guns when there is evidence that they pose a serious risk to themselves or others, while also providing robust due process protections that meet the standards set by the Supreme Court throughout every step of
the process. These laws allow judges to enter an emergency short-term order after family or law enforcement provides evidence that the person poses an immediate risk to themselves or others. After notifying the person, the judge is required to hold a hearing within a short period of time — under H.R.
1236, within 3 days after an emergency order is issued — before issuing a final order. The person asking for the order has the burden of proving that the other person poses a serious risk to themselves or others, and the other person can challenge any evidence presented and make their case as to why an order is not justified. And even orders entered after a full hearing have a limited duration — up to 6 months under H.R. 1236 — and can only be extended if the court holds another hearing. Case law shows that extreme risk laws have and will continue to withstand due process challenges: an appeals court in Florida recently upheld Florida’s law in the face of a constitutional due process challenge.
Myth
There is no evidence that extreme risk laws reduce gun violence.
Fact
Since January 2018, thousands of petitions for extreme risk protection orders have been filed in states with extreme risk laws, and there is substantial evidence that these orders are saving lives.1“Extreme Risk Laws Save Lives,” Everytown for Gun Safety Support Fund, https://every.tw/394yPvV (accessed February 4, 2020) Following Connecticut’s increased enforcement of its extreme risk law, the state saw a 14% reduction in its firearm suicide rate.2Aaron J. Kivisto and Peter Lee Phalen, “Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981-2015,” Psychiatric Services 69, no. 8 (June 2018): 855-862 In the 10 years after Indiana passed its law, the state’s firearm suicide rate decreased 7.5 percent.3Aaron J. Kivisto and Peter Lee Phalen, “Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981-2015.” California’s extreme risk law has been used in 21 cases as part of efforts to prevent mass shootings.4Wintemute GJ, Pear VA, Schleimer JP, Pallin R, Sohl S, Kravitz-Wirtz N, et al. Extreme Risk Protection Orders Intended to Prevent Mass Shootings: A Case Series. Ann Intern Med. [Epub ahead of print 20 August 2019] doi: 10.7326/M19-2162. Anecdotal evidence also shows the protective impact of these laws: Maryland’s extreme risk law has been used in at least four cases involving significant threats against schools5Luke Broadwater, “Sheriff: Maryland’s ‘Red Flag’ Law Prompted Gun Seizures After Four ‘Significant Threats’ Against Schools,” The Baltimore Sun, January 15, 2019, https://bit.ly/2Gdf6Qi. Florida’s law was used in the case of a student accused of stalking an ex-girlfriend and threatening to kill himself6Emma Kennedy, “Tate Student’s AR-15, Father’s 54 Guns Removed Under New Red Flag Law,” Pensacola News Journal, July 9, 2018, https://bit.ly/2UHmaba. and in the case of a potential school shooter who said killing people would be “addicting,”7Jessica Lipscomb, “Florida’s Post-Parkland ‘Red Flag’ Law Has Taken Guns From Dozens of Dangerous People,” Miami New Times, August 7, 2018, https://bit.ly/2ORW56U and Washington’s law was used in the case of a neo-Nazi extremist who was amassing firearms and training with weapons.8Chris Ingalls, “Police Seize Guns from Avowed Neo-Nazi in Snohomish County,” K5 News, October 18, 2019, https://bit. ly/30pOhji.
Myth
Extreme risk laws allow anyone to get their guns taken away and will be used vindictively.
Fact
Extreme risk laws are carefully crafted measures that create a process to remove a person’s access to guns only if a court finds the person to be a serious risk of harming himself or others. Only certain narrow categories of people — generally family members or law enforcement, who are often the first to see warning signs — can ask a judge to issue an extreme risk protection order. And the order can only be issued if the judge finds, after reviewing the evidence, that the person poses a risk of injury to themselves or others. Only this judicial order can cause a person’s guns to be removed — the petition itself does not have that power. And once the extreme risk protection order expires, the person gets their guns back as long as they are not prohibited from having guns for any other reason. In addition, H.R. 1236 has penalties to make sure red flag laws are not abused, making it a crime for a person to knowingly submit false information in a petition for an extreme risk protection order or to knowingly file a frivolous petition.
Myth
Extreme risk laws are unnecessary — we already have laws in place that prohibit gun possession by domestic abusers.
Fact
Extreme risk laws are meant to address all forms of gun violence and consider risks of harm and their warning signs, such as acts of violence against self or any other person (including outside the domestic violence context) or unlawful use or brandishing of a gun. Domestic violence restraining orders are incredibly important tools and provide crucial protections to victims of abuse that typically include and go beyond access to guns, while extreme risk laws help fill the gap for other people who are in crisis but are not prohibited from having guns due to a domestic violence history. Further, the danger that must be shown is different: while domestic violence protection orders generally require proof that the person has or will engage in domestic abuse, extreme risk laws require proof that the person poses a serious risk to himself or others by having a firearm.
Myth
Extreme risk laws are unnecessary — this is a mental health problem, and the solution is to address mental illness.
Fact
Suggesting that mental health is a driving factor of this country’s gun violence crisis is inaccurate and ignores existing research that points to other root causes. Research has shown that most people with mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violence.9Jeffrey W. Swanson et al., “Mental Illness and Reduction of Gun Violence and Suicide: Bringing Epidemiologic Research to Policy,” Annals of Epidemiology 25, no. 5 (May 2015): 366-376; “Extreme Risk Protection Orders (ERPOs),” National Alliance on Mental Illness, https://bit.ly/2RVm5lu (accessed February 4, 2020). While our country must do better to help and support those living with a mental health condition, our weak gun laws enable easy access to guns by people with a demonstrated history of dangerous behavior, and we need a tool to temporarily remove access to firearms from those in a time of crisis. That’s what extreme risk laws do: empower family members or law enforcement who recognize warning signs of future violence — which often have nothing to do with mental illness — to take action before it’s too late. A recent FBI report on active shooters found that warning signs of violence unrelated to mental health were present in the vast majority of active shooter cases: nearly 90% of shooters had a history of abusive or violent behavior.10“A Study of Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013,” Federal Bureau of Investigation, June 2018, https://bit.ly/2SuXXoK.
Myth
Extreme risk laws deter people from seeking mental health treatment.
Fact
In 2017, 19.8 million adults with mental illness had received mental health services in the previous year.11“Mental Health Services – AMI,” National Alliance on Mental Health, http://bit.ly/39aYmn8 (accessed February 7, 2020). Meanwhile, between January 2018 and August 2019, 3,900 petitions for extreme risk protection orders were filed in states with extreme risk laws. While millions of adults are seeking a broad range of mental health treatment across the country, extreme risk laws are a targeted, tailored solution to prevent a person from accessing a gun when they pose a serious risk to themselves or others–not because of the presence of mental illness.
Myth
Extreme risk laws are just an elaborate way for the government to confiscate guns.
Fact
Extreme risk laws are really about people who pose a serious risk of harming themselves or others and their access to guns, not guns themselves. These laws are designed to empower family members and law enforcement to intervene when there is evidence a person is in crisis and considering harming themselves or someone else. They are designed to help de-escalate emergency situations by allowing family members and law enforcement — often those first to see the warning signs –to ask a judge to issue an order that temporarily prevents a person in crisis from accessing firearms. Extreme risk protection orders are temporary and remove a person’s access to guns only for the period in which they pose a serious risk to themselves or others. Once the order expires, the person gets their guns back as long as they are not prohibited from having them for any other reason. Across the states (and D.C.) with extreme risk laws, there were almost 4,000 petitions filed between January 2018 and August 2019; meanwhile, there are an estimated 265 million civilian-owned firearms in the U.S.12Azrael D, Hepburn L, Hemenway D, Miller M. The stock and flow of US firearms: results from the 2015 national firearms survey. RSF: The Russell Sage Foundation Journal of the Social Sciences. 2017;3(5):38-57; Gun ownership reported in 34 percent of households. General Social Survey, 2018, Data Explorer. https://bit.ly/2BZhtky.
Myth
Extreme risk protection orders remove someone’s guns permanently.
Fact
Extreme risk orders are temporary in nature and are designed to remove a person’s access to guns only for the period in which they pose a serious risk. Under H.R. 1236, an emergency “ex parte” order can only last up to 14 days and a long-term order can only last up to 6 months, unless another court hearing is held and the judge finds that the person continues to pose a serious risk of injury to themselves or another by having a gun. Once an order expires, the person’s firearms must be returned to them, as long as they are not otherwise prohibited from having them.
Myth
There are no processes for returning guns once an extreme risk protection order expires.
Fact
H.R. 1236 outlines a detailed process for returning firearms once an extreme risk protection
order expires: the court that issued the order notifies law enforcement, which runs a background
check to confirm that the person is not prohibited from having guns for any other reason. If the
person is not prohibited, law enforcement informs them that they may retrieve their firearms and directs the entity holding the firearms to return them. Many state extreme risk laws set forth similar processes for returning firearms after an extreme risk protection order expires.
Myth
It is premature for Congress to set a standard for issuing extreme risk protection orders because existing state extreme risk laws do not have one consistent standard for issuance.
Fact
States have made deliberate determinations about the standard of proof courts are required to find when issuing extreme risk protection orders, often mirroring the standard of proof that their legislatures have set for issuing domestic violence restraining orders. While the standards vary by state, each unequivocally requires a judge to review all relevant evidence and determine whether the person poses a serious risk of harming themselves or others, often guided by a set of enumerated factors, like recent acts or threats of violence. In addition, the process established by H.R. 1236 requires the person asking for the extreme risk protection order to show by clear and convincing evidence — the highest standard of proof — that the other person poses a risk of personal injury to themselves or another by having a gun in order for a long-term order to be issued.
Myth
Extreme risk laws disproportionately impact communities of color.
Fact
Researchers who have studied the implementation and effect of extreme risk laws, including the underlying racial data of people under these orders, have not indicated that these orders are being taken out against communities of color at a disproportionate rate. In fact, one study found that 76.2% of extreme risk firearm seizures in Marion County, Indiana — which is 55% white — involved white gun owners, the majority of whom were men and at risk of suicide. As extreme risk laws have proven effective to intervene and prevent a person from harming themselves, and as suicide disproportionately impacts older white men, it is logical that extreme risk laws are used regularly with that population.
Myth
Extreme risk laws prioritize gun seizure over the safety of law enforcement and gun owners.
Fact
While serving any civil order can be dangerous for law enforcement officers, officers are specially trained with the appropriate techniques for serving an order, and law enforcement agencies can and do set procedures to ensure the safety of officers and gun owners when an extreme risk order is served. There have been few reported instances of law enforcement or gun owners suffering serious injury or death during the service of the thousands of extreme risk protection orders issued in the states with these laws. The death of a gun owner during a confrontation with law enforcement serving an extreme risk protection order in Anne Arundel County, Maryland was the only reported death across the country resulting from service of an extreme risk protection order — and there have been thousands of petitions filed nationwide since January 2018 alone. Meanwhile, extreme risk laws have been shown to reduce gun suicides and prevent mass shootings, saving countless lives across the country.
Learn more about H.R. 1236
The Extreme Risk Protection Order Act of 2019 (H.R. 1236) helps prevent gun violence tragedies by empowering family members and law enforcement across the country to intervene when a person is in crisis and poses a danger to themselves or others—while protecting due process rights of all involved. This bill supports the states that have passed Extreme Risk (or “Red Flag”) laws, encourage additional states to pass strong Extreme Risk laws, and establish a strong federal Extreme Risk process that can be used in federal courts in all fifty states. Learn more about H.R. 1236.
