Red Flag Laws

What Are Red Flag Laws?

Red flag laws, sometimes called “extreme risk protection order” (ERPO) laws or “gun violence restraining order” laws, allow a judge to issue an order that enables law enforcement to confiscate firearms from individuals deemed a risk to themselves or others. Prior to the enactment of red flag laws, in most states, law enforcement had no authority to remove firearms from individuals unless they had been convicted of specific crimes, even if their behavior was deemed unsafe.

Depending on state laws, family members, household members, law enforcement, or a mixture of these groups can ask the court for an order that would allow law enforcement to remove the firearm or firearms from the individual’s home and restrict their ability to purchase firearms. Typically, the person seeking the order must provide evidence of behavior that presents a danger to others or themselves; then, the court holds an expedited hearing. If a judge agrees the individual is a threat, the individual’s firearms will be removed for a temporary period that can last from a few weeks to a year. Notice for scheduled hearings is provided for orders that could result in a firearm divestment for a specific period of time. Defendants may participate in such hearings.

What Actions Constitute a ‘Red Flag’?

While each state defines what constitutes a “red flag” differently, the following are some examples:

• Recent threats or acts of violence by such person directed toward themselves or other persons;
• The reckless use, display, or brandishing of a firearm by such person;
• History of documented evidence that would give rise to a reasonable belief the individual has a propensity for violent or emotionally unstable conduct;
• History of the use, attempted use, or threatened use of physical force by such person against other persons;
• History of mental illness or prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities; and
• The illegal use of controlled substances or abuse of alcohol by such person.

State Actions

Enacted

Before 2018, only five states had enacted red flag laws: Connecticut, Indiana, California, Washington, and Oregon.

In 1999, Connecticut became the first state to enact a law permitting law enforcement the legal authority to temporarily remove firearms from individuals when there is probable cause to believe they are a risk to themselves or others (C.G.S.A. §29-38c).

As of October 2023, a total of 21 states and the District of Columbia have enacted red flag laws. Six states — Connecticut, Florida, Indiana, New Mexico, Rhode Island, and Virginia — allow only law enforcement or other state officials to petition for an ERPO.

Anti-red Flag Law

In 2020, Oklahoma enacted the nation’s first “anti-red flag” law, which prohibits the state and any county or city from enacting laws to allow for the enforcement of ERPOs.

Federal Legislation

Numerous bills concerning extreme risk protection orders have been introduced in the 118th Congress. Current legislation before the Congress addresses the following topics:

• Federal grant monies to assist states and local governments in implementing ERPO laws;
• Expanding federal firearm receipt, possession, shipment, and transportation prohibitions to include persons subject to an ERPO;
• Establishing a Federal Bureau of Investigation database to track individuals subject to such ERPOs;
• Authorizing a federal court to issue an ERPO;
• Federal grant monies to offset the costs of legal representation for ERPO petitioners;
• Federal grant monies to offset the costs of translating ERPO materials into commonly spoke languages other than English; and
• Federal grant monies to incentivize states to implement firearms licensing laws similar to the state of Massachusetts, which would require a license to possess a firearm and prohibit those subject to an ERPO from obtaining a license.

Kansas Red Flag Legislation

Red flag legislation has been considered by the Kansas Legislature several times in recent years. None of the bills listed below were passed by a standing committee.

Biennium	Bill Number	Bill Title
2017-2018	SB 390	Extreme Risk Protective Order Act
	SB 431	Extreme Risk Protective Order Act
	HB 2769	Gun Safety Red Flag Act
2019-2020	SB 183	Extreme Risk Protective Order Act
	HB 2129	Gun Safety Red Flag Act

Kansas Anti-Red Flag Legislation

Anti-red flag legislation has also been considered by the Kansas Legislature in recent years. None of the bills listed below were passed by a standing committee.

Biennium	Bill Number	Bill Title
2019-2020	SB 245	Kansas Anti-red Flag Act
	HB 2425	Kansas Anti-red Flag Act
2023-2024	HB 2441	Anti-red Flag Gun Seizure Act

ERPO Law Table

Jurisdiction	Reference
California	Cal. Penal Code §18100, et seq.
Colorado	Colo. Rev. Stat. §13-14.5-101, et seq.
Connecticut	Conn. Gen. Stat. §29-38c
Delaware	Del. Code Ann. Tit. 10, §7701, et seq.
District of Columbia	D.C. Code §7-2510.01, et seq.
Florida	Fla. Stat. §790.401
Hawaii	Haw. Rev. Stat. §134-61, et seq.
Illinois	430 Ill. Comp. Stat. §67/1, et seq.
Indiana	Ind. Code §35-47-14-1, et seq.
Maryland	Md. Code Ann., Pub. Safety §5-601, et seq.
Massachusetts	Mass. Gen. Laws ch. 140, §131R
Michigan [Note: Effective date of March 21, 2024.]	M.C.L.A. 691.1801, et seq.
Minnesota [Note: Effective date of January 1, 2024.]	Minn. Stat. §624.7171, et seq.
Nevada	Nev. Rev. Stat. §33.500, et seq.
New Jersey	N.J. Stat. Ann. §2C:58-20, et seq.
New Mexico	N.M. Stat. Ann. §40-17-1, et seq.
New York	N.Y. C.P.L.R. §6340, et seq.
Oregon	Or. Rev. Stat. §166.525, et seq.
Rhode Island	8 R.I. Gen. Laws §8-8.3-1, et seq.
Vermont	Vt. Stat. Ann. Tit. 13, §4051, et seq.
Virginia	Va. Code Ann. §19.2-152.13, et seq.
Washington	Wash. Rev. Code §7.105.010, et seq.

by Jordan Milholland
Managing Research Analyst
785-296-3923