Red Flag Laws: The Implementation of Extreme Risk Protection Orders (ERPOs)
After a wave of mass shootings in 2017 and 2018, one of the most fashionable pushes for gun control was the rise of so-called “red flag” laws, or Extreme Risk Protection Orders (ERPOs).
These red flag laws are not as novel as people think. States like Connecticut got the ball rolling in 1999, when legislators passed the nation’s very first red flag law after a shooting took place at a State Lottery headquarters. States like Indiana (2005), California (2014), Washington (2016), and Oregon (2017) have followed suit in their implementation of red flags laws.
But the political environment completely changed in late 2017 and early 2018. A string of mass shootings like the 2017 Las Vegas shooting, the Sutherland Springs church shooting, and theStoneman Douglas High School shooting rocked the political environment like never before. This commotion played perfectly into the hands of the gun control crowd in the legacy media and political establishment.
Crises – real or perceived – are the lifeblood of government expansion. Following the words of Chicago Mayor Rahm Emmanuel, gun control advocates did not let these crises go to waste.
Red flag laws received an added bump from these shootings. Like clockwork, states such as Florida, Vermont, Maryland, Rhode Island, New Jersey,Delaware, Massachusetts, and Illinois adopted their own red flag laws.
Red flag laws enable law enforcement to confiscate firearms from an individual who is considered a threat to themselves or others. However, these confiscatory actions can be taken based on simple allegations. An accusation from a family member, friend, or associate is enough of a justification for law enforcement officers to seize an individual’s firearms.
Potential for due process violations has emerged since red flag laws started gaining traction. Even the American Civil Liberties Union, who views the Second Amendment as a collective right as opposed to an individual right, has expressed concern about how red flags will essentially create Minority Report-like scenarios in America. Individuals could see their rights stripped just based on speculation on the part of petitioners and a judge.
Subsequently, the accused are compelled to take their accusers to court, even though the accused has never been charged with or convicted of a crime. To make matters worse, the defendant could have their weapons seized without even a hearing before a judge. Months could go by before a gun owner wins back his gun rights in court.
Even in their early stages of implementation, red flag laws generated controversy. Around 5 a.m. on November 5, 2018, two police officers approached 61-year-old Gary Willis’s house. Once at Willis’s door, they knocked and waited for Willis to respond. In a state of shock, Willis answered, and the two officers happened to be serving Willis a court order to turn his guns over to authorities in accordance with Maryland’s recently signed red flag law.
In a tragic turn of events, this encounter with law enforcement quickly got out of hand. A struggle ensued between Willis and the two officers, which resulted in Willis’s death. After this controversial shooting, Anne Arundel County Police Chief Timothy Altomare jumped to the police officers’ defense stating they “did the best they could with the situation they had.”
Maryland’s red flag law, which received Republican Governor Larry Hogan’s signature, was implemented in October 2018. In its first month, there were 114 firearms seizure requests.
After the smoke cleared from the Las Vegas massacre, the deadliest shooting in U.S. history that left 58 people dead, gun control politicians were scrambling to find a scapegoat. And they were able to find one real quick – the bump stock.
Proponents of bump stock bans contended that this accessory allows for semi-automatic rifles to mimic automatic fire settings. However, some firearms experts such as Andrew Wickerham didn’t buy the uproar over bump stocks. Wickerham detailed his views on bump stocks in an interview for The Christian Science Monitor:
“I’ve always thought these bump stocks were just a novelty,” he says. “They’re not that good, and they’re hard as hell to control.”
Alas, modern-day politics are ruled by emotions, not facts. As a result, a number of states have embraced the latest wave of the gun control crusade.
Bump stocks had already been illegal in states like California since 1990. That being said, the push for bump stock bans remained dormant for a few decades until the fateful year of 2017 arrived. When it was discovered that the Las Vegas shooter Stephen Paddock used bump stocks to commit these atrocities, bump stock bans gained a second wind.
The following states have jumped in on the bump stock ban frenzy:
California Expands Its Gun Control Regime
In 2018, California went on its own gun control spree after the dust settled from a series of national mass shootings.
- SB 1100 raised the age for buying a shotgun or rifle in California from 18 to 21.
- AB 2103 tightened training requirements, with at least eight hours of gun safety training for people applying for concealed handgun licenses.
- AB 2526 added to the current red flag system, allowing law enforcement to request a gun violence restraining order verbally when there’s not enough time to carry out a written request.
Pressured by the outrage from the Stoneman Douglas High School shooting, Governor Rick Scott signed SB 7026, which contains red flag provisions, raises the age to buy a firearm to 21, and imposes a three-day waiting period for all firearms purchases.
Like Nevada, the occurrence of a mass shooting on their own soil was too much for even supposedly “pro-gun” Republicans in Florida. 67 NRA A-rated Republicans ended up voting for this bill. But it wasn’t just Florida that saw a sweep of gun control after the Stoneman Douglas shooting – much of the country saw a ripple effect of gun laws that were unusually aggressive. These are a few of the states that saw some extreme change in gun regulation.
Extended Waiting Period for All Firearms Purchases: Republican Governor Bruce Rauner signed SB 3256 into law on July 16, 2018 – extending the waiting period for all firearms purchased to a minimum of 72 hours.
Under the previous Illinois law, only handguns were subject to a 72-hour waiting period, but so-called “assault weapons” like AR-15s and other long guns could be received in 24 hours.
Seizure of Firearms: A1181 requires licensed healthcare professionals to inform law enforcement about patients who they suspect could commit an imminent act of physical violence. Law enforcement officials then have the authority to determine whether the person should be barred from holding them.
Private Gun Sale Background Check: A2757 mandates background checks for all private sales and transfers of firearms. The only exceptions are those involving “immediate family.”
Justifiable Need to Carry Handgun: A2758 establishes a strict definition for the “justifiable need to carry a handgun” that private citizens must demonstrate should they desire to obtain a permit. For a private citizen to carry a handgun, they must obtain a handgun carry permit.
Permit applicants need to have the approval of the police chief in the municipality in which they live, as well as the approval of a Superior Court judge in their county of residence. For their application to be approved, the applicant must also submit a written certification highlighting a justifiable need to carry a handgun.
Ammunition Magazine Maximum Capacity: A2761 bans firearm magazines that hold more than 10 rounds of ammunition. Gun owners who own magazines with more than 10 rounds can keep their firearms. However, they must register them and pay a $50 fee.
3D-Printable Gun Ban: On November 8, 2018, New Jersey Governor Phil Murphy signed S-2465 into law – banning the purchase of firearm parts with the end goal of making a “ghost gun,” or a gun that does not have a serial number.
These ghost gun can be assembled with parts bought individually or as part of a kit, which can often be done through the internet. Any of these actions would be deemed illegal according to this new law.
The act of making a 3D-printable gun or distributing its blueprints would also be criminalized. Additionally, manufacturing, selling, or the mere possession of an “undetectable” firearm made from material that cannot be recognized by a metal detector is subject to criminal penalties.
Firearms: S.55 expands background checks by requiring them for most private firearms sales, raises the age to buy a gun to 21, bans bump stocks, and limits the size of magazines for handguns to 15 rounds and 10 rounds for long guns.
Oregon was about to witness a potential ban on so-called “assault weapons” and high-capacity magazines in 2018. Thankfully for Oregon gun owners,Initiative Petition 43 failed to gather enough signatures by the deadline in order to be on the ballot.
Despite this bill’s failure, Oregon gun owners went the extra mile when they approved Second Amendment Preservation Ordinances in eight of ten counties. The counties that approved the Second Amendment Preservation Ordinances have in essence become “sanctuary counties” where citizens have the right to own semi-automatic weapons and high-capacity magazines, regardless of state and federal laws on the books.
On November 6, 2018, Washington State moved the gun control needle even further when voters approved I-1639, one of the most powerful gun control initiatives in the country, with 59 percent of the vote. I-1639 expands the reach of background checks, raises the minimum age to buy semi-automatic rifles, establishes a waiting period for the purchase of these same rifles, and mandates the safe storage of all firearms.
Similar to Oregon, I-1639 has witnessed some pushback from counties outside its urban centers. Lewis County Sheriff Robert Snaza announced that The Lewis County Sheriff’s Office will not actively seek out individuals who violate the recently approved I-1639.
All firearms purchases from licensed dealers in the United States must go through the National Instant Criminal Background Check System (NICS). This system came about as a result of the Brady Act, one of the most comprehensive forms of gun control passed at the federal level in the past three decades.
However, gun control advocates believe this is not enough. Since then, they worked to pass universal background checks (UBCs) at the state level. UBCs mandate all firearms sales and transfers be conducted through a Federal Firearms Licensee (FFL). Depending on the state, gifts and loans could also require that FFLs process these activities.
For the first time in decades, gun control advocates scored a victory when their flagship, universal background check bill H.R. 8 successfully passed the U.S. House on February 28, 2019, on a 240-190 vote. Although this bill will likely not make it past a Republican-controlled Senate, universal background checks are now part of the federal gun control conversation. If enough momentum gathers at the state level, and the right political winds blow at the federal level, UBCs could become a reality in D.C. within the next decade.
In 1991, California became one of the first states to pass universal background checks. In other words, all gun sales must be conducted by a licensed dealer, including private sales and transfers. California’s universal background checks also banned individuals with certain misdemeanor convictions from purchasing and possessing guns. Plus, prospective gun owners must go through a 10-day waiting period to acquire handguns, rifles, and shotguns.
California authorizes the California Department of Justice (DOJ) to act as a point of contact. Firearms dealers are obligated to initiate the federally mandated background check by contacting the California DOJ. By law, any prospective buyer (or transferee or person being loaned) of a firearm is required to fill out an application to purchase the firearm (known as “Dealer Record of Sale” or “DROS” form) through a licensed dealer and send it to the DOJ. With very few exceptions, all firearms transfers conducted in California have to go through a licensed dealer.
In the wake of the Aurora movie theatre massacre, the Colorado legislature took drastic action by passing gun control. The most notable signed into law by Governor John Hickenlooper was Colorado’s universal background check law HB 1229.
In Colorado, all firearms transfers conducted by licensed dealers are processed by the Colorado Bureau of Investigation (CBI). Under Colorado law, private sellers (who are not federally licensed dealers) must initiate a background check when transferring a firearm. In turn, prospective firearms purchasers in private sales must pass a background check before acquiring their weapon. The same process applies to regular firearms sales.
After the Sandy Hook shooting in 2012, Connecticut took hardline measures on guns. Governor Dannel Malloy signed Bill No. 1160 into law – requiring that prospective gun buyers pass a background check for the sale of all firearms, which includes the private sale or transfer of long guns.
Handgun transfers cannot be carried out until the person, corporation, or firm conducting the transfer acquires an authorization number from the Connecticut Department of Emergency Services and Public Protection (DESPP).
Before any firearm is transferred at a gun show, the transferee must also go through a background check.
On May 8, 2013, Delaware Governor Jack Markell signed HB 35 into law, which closes a “loophole” in state law by requiring background checks in connection with the sale or transfer of firearms between private parties. However, HB 35 mandates that background checks be conducted by licensed firearms dealers. Then, dealers must keep records of such background checks that comply with state and federal law.
In the case an unlicensed seller requests that the dealer conduct a background check on a potential buyer, licensed gun dealers are required to carryout the transfer of a firearm. The unlicensed seller and prospective purchaser are both required to appear together at the licensed dealer’s place of business to facilitate the background check and transaction.
Private sellers must have a registration certificate to legally transfer a firearm. Additionally, they can only transfer legal firearms to licensed dealers. The chief of police is in charge of initiating background checks for the issuance of registration certificates, which an individual must have to own a firearm in D.C.
For private sales in Maryland, buyers must pass a background check for all handguns and “assault weapons” before taking possession of said firearms. The same process applies for individuals buying from a licensed gun dealer in. Long guns like shotguns and rifles are exempt from these requirements.
However, then Attorney General Adam Laxalt proved to be an obstacle for the enactment of Question 1, because he claimed that the ballot initiative required the FBI to run the background check, thus making it impossible to enforce.
The Las Vegas and Parkland shootings changed the entire picture, with many states becoming re-energized in their push for enacting more gun control. At the time, the Nevada legislature lagged behind because it was not in session.
Fast forward to the 2018 elections, the political winds blew in the direction of gun control when Democrats achieved a trifecta in the legislature and Governor’s office. Additionally, Nevada saw Aaron Ford, who was financially backed by anti-gun oligarch Michael Bloomberg, assume the Attorney General position.
With firm anti-gun control of the Nevada State government, Governor Steve Sisolak signed SB 143, which requires that most firearms transfers in Nevada take place after a background check is realized. There are a few exceptions that exist for sales or transfers between immediate family members, some types of temporary loans, and for law enforcement.
The transferee must possess a Firearms Purchaser Identification Card (FPIC) for long gun (rifle and shotgun) transfers. One FPIC is all that’s needed for unlimited rifle and shotgun purchases, so long as the holder is eligible to possess the FPIC.
Applications to obtain handgun permits or an FPIC must first go through NJSP or a local law enforcement body. These law enforcement agencies use NICS as well as other state and local records to check if prospective gun buyers are prohibited from possessing a firearm prior to them receiving a handgun permit or FPIC.
New York has some of the strictest gun control in the nation. In the wake of the Sandy Hook shooting, Governor Andrew Cuomo signed the SAFE Actin January 2013, which established New York’s current universal background check system.
With the exception of transfers between immediate family members, state law requires that licensed firearms dealers conduct a NICS check before any transfer, sale, exchange, or firearms disposal. The firearms dealer must then provide a report of the NICS background check to the state. The dealer must also keep a record of the NICS check in the case that law enforcement drops by for an inspection.
Under state law, any individual who intends to transfer a legal handgun, short-barreled rifle or shotgun must first inform the state police or, depending on the situation, licensing officers in New York City or Nassau or Suffolk Counties.
New York law has an explicit prohibition on certain forms of firearms disposal with the following language:
“No person shall except as otherwise authorized pursuant to law dispose of any firearm unless he [or she] is licensed as gunsmith or dealer in firearms.”
On May 11, 2015, Governor Kate Brown signed SB 941 into law, establishing universal background checks in Oregon. Starting in 2000, Oregon passed legislation that mandated background checks at gun shows. SB 941 expanded upon this by including all private firearms sales, including online sales. Additionally, Oregon’s universal background law requires background checks for all firearms transfers. Some exemptions exist for family members and people who lend guns for hunting purposes.
Pennsylvania only requires universal background checks for handguns. Private sellers are only allowed to sell handguns to an unlicensed purchaser via a licensed importer, manufacturer, dealer or county sheriff’s office, who are the ones responsible for initiating a background check.
The Pennsylvania State Police carries out all background checks in the state.
The state of Rhode Island requires that licensed dealers and unlicensed sellers carry out background checks under the auspices of the state police or local chief of police. Every prospective firearms buyer must fill out an application form for the background check, which the seller then must hand over to the state police or local police chief. The law enforcement body has seven days to review the applicant’s background to see if it complies with state requirements.
Vermont is an interesting outlier in gun policy. Although it is a state with de facto Constitutional Carry, thanks to language in its state constitution and subsequent court decisions that have upheld that language, Vermont saw numerous gun control bills signed into law by Republican Governor Phil Scott in 2018. One of the bills signed into law was Act 94, which established a universal background check.
In Vermont, all gun transfers, even those between private parties, must go through a background check. Vermont does not have a “point of contact” access to NICS, making the state dependent on the FBI for all background checks in the state. Like Nevada before its 2019 legislative session, Vermont’s UBC law has become unenforceable so far in its existence.
In 2014, Washington broke the mold by becoming the first state to pass universal background checks via voter referendum. In a resounding 60 to 40% vote, Washington State voters passed Initiative 594, which requires that all private firearms sales be carried out by a federally licensed firearms dealer. Local law enforcement departments function as state points of contact for the implementation of UBCs.
Before 2018, only handguns were covered under UBCs. But during the 2018 election cycle, Washington voters approved I-1639, which extends Washington’s UBC law to cover semi-automatic rifles.
Since 2013, successful federal gun legislation has been limited to the renewal of the Undetectable Firearms Act, and states have taken note. While more restrictive states have continued to identify and attempt to close every loophole, many others have instead passed laws to strengthen the Second Amendment.
In 2015, the Law Center To Prevent Gun Violence tracked “1,323 bills related to firearms in the states.” Many of these laws related to hotbed social issues of today: domestic violence, background checks, guns in schools and on campuses, and concealed carry.
Domestic terrorism is another serious concern driving the debate about gun control. If history is any guide, attacks by “homegrown” terrorists will lead to stricter gun control measures as legislators try to calm the nation’s outrage and sense of vulnerability with more laws – despite terrorists already breaking existing laws.
The challenge for lawmakers at all levels is to ensure that rational wisdom prevails over emotion. We can close every loophole. We can regulate and litigate. But ultimately, unbalanced malcontents or violent terrorists may still win simply because they don’t play by any rules. And even the most well-intentioned laws may have unintended consequences.
Meanwhile, the Second Amendment, crafted by America’s Founding Fathers, stands quiet and powerful, with 27 simple words worthy of defining billions of others in our nation’s Supreme Court:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”