A Patchwork of State Red Flag Laws is Likely Under the Gun Safety Deal

The gun safety legislation being negotiated in Congress would likely lead to a variety of standards around the country over a key question—how easily can authorities act under state red flag laws to take firearms away from those suspected of posing a violent threat?

A deal on firearms legislation announced by a bipartisan group of 20 senators on Sunday would offer states federal grants as an incentive to adopt red flag laws and lawmakers in Congress have signaled that they want to give states flexibility in designing those policies. Movement with the gun package follows deadly mass shootings in May in Buffalo, New York and Uvalde, Texas.

Red flag, or “extreme risk,” laws allow law enforcement and in some cases others, like family members and teachers, to petition courts to temporarily seize guns from people who are deemed to be a threat to themselves or others.

The 19 states, along with the District of Columbia, that have already passed these types of laws, however, have differed on how to strike a balance between removing weapons from dangerous people while also protecting the constitutional rights of gun owners.

A study published last year in the American Journal of Preventive Medicine underscored how states have set different standards, with more liberal jurisdictions like Washington, D.C., Hawaii and Massachusetts setting a lower bar for taking away guns than other states, like Florida.

The issue is a central one for those concerned about preserving due process for those who face having their guns taken away, said George Mocsary, a University of Wyoming law professor, and co-author of Firearms Law and the Second Amendment: Regulation, Rights, and Policy.

“Nobody wants crazy people or those who’ve been making threats to have firearms. The problem is some of these laws have gone in the other direction,” said Mocsary, who favors a higher burden of proof to protect Second Amendment rights.

Gun rights groups have attacked red flag laws, saying they violate the due process rights of gun owners. Michael Hammond, counsel for the group Gun Owners of America, opposed including the incentives for states to enact red flag laws in any forthcoming bill.

Standards like “reasonable cause,” he said in an interview, are a “low bar to raid somebody’s home in the middle of the night to take away their property and their constitutional rights.” 

Hammond also objected to some states allowing guns to be temporarily taken before a gun owner has a chance to appeal the seizure in a hearing.

Some Republican senators have raised concerns that red flag laws will violate the rights of gun owners. 

GOP lawmakers involved in the negotiations, like Sens. Susan Collins of Maine and Lindsey Graham of South Carolina, also told Route Fifty in interviews this week that the framework for the deal envisions giving states leeway in designing the laws.

And Nico Bocour, government affairs director for the gun safety group Giffords, said in an email that she expects a final bill to include “some language and guidance as to what type of policies would be eligible for these grants.” But, she added, “[I] expect there will likely be more than one standard that could still keep states eligible, as there is now in states.”

Joseph Blocher, co-director of the Duke Center for Firearms Law, also said in an email he anticipates the legislation, if passed, will lead to liberal and conservative states setting different thresholds for how easy or difficult it will be to seize guns from potentially dangerous people.

It is still uncertain if senators can even agree on a bill that can win the 10 GOP votes needed to prevent any measure from being blocked by Republicans in the evenly divided Senate.

The bipartisan group of senators is still crafting the details of their proposal. 

While the Senate’s top Republican, Minority Leader Mitch McConnell of Kentucky, bolstered hopes when he told reporters on Tuesday that he backs the framework, he also added a caveat saying his support depended on the final legislation “reflecting what the framework indicates.”

Another senator involved in the negotiations, Bill Cassidy, a Louisiana Republican, said that he believes some states’ red flag laws violate due process. Cassidy declined to elaborate but seemed to indicate that a question before negotiators is whether to impose some limits on whether states can receive the subsidies if they have more aggressive policies. 

“We want to respect federalism, recognizing that states have taken different approaches,” he said in an interview with Route Fifty. “But we would want a state … to do a red flag law right. We would want to make sure that they granted due process. Some [states' red flag laws] right now will not meet the definition of due process as we have. So we would straighten that out.”

In addition, Politico reported Wednesday that Republicans want the state grant money meant to incentivize red flag laws to be available for other crisis intervention programs as well, arguing that not every state will pass red flag laws due to the due process concerns. 

Sen. Chris Murphy of Connecticut, the Democrats’ lead negotiator in the talks, told reporters in recent days that a number of questions still need to be worked out on other aspects of the framework, including whether funding for school security could be used to hire armed guards.

States considering new red flag laws would see that other states, thus far left to their own devices, have generally set a lower legal bar for removing weapons for shorter periods of time, but a higher bar after a court hearing to remove firearms for longer. The standards also depend on who is requesting that a gun be removed.

In Oregon, lawmakers opted to require a high bar of “clear and convincing evidence” to even remove a weapon for up to the 21 days before a court hearing has to be held. Law enforcement, as well as a family or household member in the state can also request a firearm be taken away for reasons such as threatening suicide or physical force on others.

However, other states have chosen to require a lower bar for temporarily removing a firearm, whether it be “reasonable cause,” “preponderance of evidence,” “probable cause,” “good cause” in the case of New Jersey or on “reasonable grounds” in Maryland.

States, though, have generally set a higher bar to take away guns for longer periods. Fourteen states, according to the American Journal of Preventive Medicine study, require there be “clear and convincing evidence” that a firearm should be taken away.

Mocsary favors a higher bar for removing guns. “Somebody saying ‘this guy scares me’ shouldn’t be enough to deprive the right to bear arms,” he said.

Mocsary also raised concerns about people making false accusations against gun owners. He noted a 2020 case in Illinois in which an estranged husband called police and falsely said his ex-wife was shooting a gun in her home.

Oregon state Sen. Brian Boquist, an Independent who co-sponsored the state’s 2018 red flag law, said the Legislature opted to create the higher “clear and convincing” standard even for temporarily removing weapons to build the support needed to get the bill approved. 

“Oregon DAs were sort of all over the place. 36 different elected officials with 36 different definitions. So we tried to write the safeguards in the process,” he said in an email.

Those involved in setting a lower bar to remove guns defended the less stringent standards. 

The Alliance for Gun Responsibility, which pushed for a 2016 ballot initiative that created Washington state’s red flag law, said it chose the “preponderance of evidence standard” to align with other types of protection laws in the state.

“The preponderance standard is one that is used across the board in our domestic violence protection orders, sexual assault protection orders, stalking protection orders, etc.,” the group’s spokeswoman, Kristen Ellingboe, said in an email. 

Lawmakers in jurisdictions that have passed the lower requirements say they took that approach to protect people.

Charles Allen, chairman of the Washington D.C. Council's public safety committee, said in an interview that the district chose to create a “preponderance of evidence” standard to remove a firearm for at least one year because the cases involve “someone who is a threat to do harm to themselves or others.”

The district allows police, relatives and others like those who have a child with the gun owner, or are living with or dating them, to seek to have firearms taken away.

As part of the law, Allen said the council decided to grant immunity to the gun owner if they have an illegal weapon so family members would be more likely to call police. Allen, though, said a tip line the city set up hasn’t received many calls about illegal firearms, likely because people do not know their relatives would only have their illegal firearms taken away and not go to jail.

Hawaii also decided to set the lower “preponderance of evidence” standard to take away a gun at the request of a law enforcement officer, a family or household member of the gun owner, a medical professional, an educator or a colleague.

State Sen. Karl Rhoads, chairman of the Hawaii Senate's judiciary committee, said in an interview the reason was simple. “The stakes are really high,” he said. “If someone is really dangerous, you want to be on the safe side.”