Since the school shooting in Parkland, Florida, in 2018, an increasing number of U.S. states have adopted laws on Extreme Risk Protection Orders (ERPOs), also known as Red Flag laws. These laws allow a petitioner, usually a police officer, to ask a judge to require the temporary surrender or seizure of firearms belonging to an individual who is an imminent threat to themselves or others. In a subsequent court hearing, petitioners can request that the weapons be withheld for a longer period, while the gun owners have the opportunity to argue for the return of their firearms. Some states also allow physicians, school officials, and family members to request gun removal orders. Red Flag laws are currently on the books in 19 states and the District of Columbia. The Safer Communities Act recently passed by Congress incentivizes states to set up ERPO programs.

While largely implemented in response to mass shootings, such laws are also relevant to suicide prevention and the prevention of homicides in the context of domestic violence. However, a lack of awareness, coupled with unique challenges in the law enforcement environment, have resulted in these laws being underutilized in most jurisdictions. A recent analysis by the Associated Press found that current utilization of Red Flag laws in jurisdictions where they exist is “woefully low” and not sufficient to impact gun violence.¹ Unfortunately, several recent high-casualty instances, including 17 students dead at Marjory Stoneman Douglas High School in Parkland, Florida; 7 people murdered at a Fourth of July parade in the Chicago suburb of Highland Park, Illinois; 10 people killed in the attack on black grocery shoppers in Buffalo, New York; and 9 workers killed at a FedEx facility in Indianapolis, Indiana, could potentially have been avoided had existing Red Flag laws been proactively and appropriately employed. It is critical that law enforcement agencies across the United States ensure that they have developed and implemented clear policies and robust training on petitioning and serving ERPOs to ensure compliance with their state’s Red Flag laws and to reduce the likelihood of suicides, domestic violence homicides, or mass shootings in their jurisdictions.

There is currently a wide disparity in how Red Flag laws are applied from state to state, and even from county to county within the same state. Complicating this landscape further, some sheriffs have committed to establishing “Second Amendment sanctuaries” in their jurisdictions, refusing to enforce their state’s Red Flag laws. Other law enforcement leaders such as Sheriff Grady Judd in Polk County, Florida, have effectively and robustly implemented the law as intended. “We’re not going to wait for an Uvalde, Texas, or a Parkland or a Columbine if we have the information and people say that they’re going to shoot or kill,” according to Sheriff Judd. “We’re going to use the tools that the state gave us.”² Indeed, law enforcement agencies are the most critical users of Red Flag laws. Even though some states have included doctors, teachers, family members, and others as potential Red Flag reporters, studies show that police are the primary, if not sole, reporters in most jurisdictions. Until other components of society begin to take action in response to these laws, the police are the primary means to identify such situations and take action to prevent tragedy.

Seizing guns from individuals in emotional or mental crisis is an inherently dangerous and unpleasant endeavor, especially in smaller jurisdictions where police may already know many of the residents with mental health challenges, some of whom may be prominent members of the community, relatives of prominent community members, family of law enforcement officers, or active or retired law enforcement personnel. These situations present a particular difficulty; thus, departments should act now to put policies and procedures in place to address these potential eventualities.

Some Red Flag laws have been implemented by states without sufficient procedural guidance for police or a way of funding the necessary training for law enforcement officers. Therefore, it will be important for police departments to work with local prosecutors, courts, and city attorneys to develop procedures, clarify standards, and implement accountable and transparent practices.

Law enforcement agencies that will be executing ERPOs should ensure that they have a well-written policy that accounts for all aspects of the program. A strong department policy should include the following elements:

• key definitions, including the difference between temporary and longer-term orders in the state
• a description of the reporting or petitioning process (for both law enforcement and non-law enforcement petitioners), including requirements for filing a petition in the state, the use of relevant information systems, and the role of other relevant governmental and administrative bodies
• direction on when to inform victims of Red Flag laws and their provisions
• the potential role of concurrent mental health petitions or arrest warrants
• requirements to make the necessary notifications and to consult with an on-duty commander
• notice that service of ERPOs may be considered high-risk operations and require an appropriate level of planning consistent with any high-risk warrant service—the time and method of service should be advantageous to officers and provide for the safety of the community and respondent to the extent possible
• requirements that only under extreme circumstances should a tactical assault and entry be considered to execute an ERPO-related order—any such plan should require the written approval of the agency chief executive or designee prior to execution
• consideration of timeliness of service and procedures for requesting more time when necessary and possible
• a description of what information should be provided to the subject of the order, i.e., a clear explanation of the process, subsequent hearings, and referrals to resources;
• consideration for the protection of the identity of the petitioner
• an indication of the potential disciplinary actions for violating the department’s ERPO policy
• procedures for the
  • sale, transfer, voluntary surrender, and taking into custody of firearms;
  • search and seizure of any concealed carry or other permits, when authorized;
  • secure storage of seized firearms (including special procedures for antique and relic firearms);
  • issuance of property receipts;
  • termination, expiration, and expungement of orders;
  • release of firearms to a third party if applicable;
  • return of firearms in police custody; and
  • disposing of unclaimed firearms.

Due to the special risks involved in serving ERPOs, jurisdictions should properly invest in robust ongoing training for officers and supervisors. The training should include

• the basis and requirements to file an ERPO petition;
• the expectations and procedures for executing an ERPO;
• the incorporation of de-escalation and crisis intervention techniques when appropriate;
• the process for legal and supervisory review of the order;
• the process of developing adequate planning prior to contact and the process for supervisory review and approval of the plan; and
• tactical considerations—when, where, and how to approach the subject to minimize the chance of an armed encounter or risk to the public or officers (e.g., making initial contact during a vehicle stop away from the subject’s cache of weapons).

Departments that regularly execute ERPOs may want to consider establishing a specialized team or unit that handles such cases since the planning, preparation, and execution of these orders can be time-consuming and complicated. Departments should also capture and analyze data on their applications for and executions of such orders.

“The responsible use of Red Flag laws can reduce the likelihood of mass shootings, as well as deaths from suicide and domestic violence.”

Proper planning and the ability to deploy all available resources will be critical. While many of these contacts will be too dangerous for unarmed co-responders to be on-scene, departments should still consider the role of clinically trained co-responders in making contact with the subject by phone or other means to assist in assessing the motivation and mindset of the subject. In addition, departments should plan to ensure that all relevant resources are available and on alert prior to the execution of an ERPO, including negotiators, SWAT, air support, medical response, and legal counsel. Departments should try to avoid a barricade situation but still be prepared with food, water, and communications options if necessary. Prior to the execution of the ERPO, if possible, gather information on the subject’s behavior, motivations, and past threats from neighbors, community members, family, and friends before proceeding. And, of course, maintain the option of a voluntary surrender of the weapons if no one is in immediate danger. Voluntary surrender of the weapons should always be the preferred resolution.

As with any new policy and procedure, make certain that the department’s approach is instilled among the patrol sergeants, detective sergeants, and other first-line supervisors to ensure the department’s policies and training on Red Flag laws are understood and followed by all officers.

The recent adoption of Red Flag laws by an increasing number of states presents a new and important avenue for police in managing and responding to violence in U.S. society. If properly employed, the responsible use of Red Flag laws can reduce the likelihood of mass shootings, as well as deaths from suicide and domestic violence. However, it will be the responsibility of each law enforcement agency to develop and maintain best practices for the execution of ERPOs. To ensure the maximum potential benefits of Red Flag laws, agencies should review their existing policies on planning and executing ERPOs and make sure they are consistent with best practices. Any agency in a state that has adopted a Red Flag law that has not implemented a robust and well-constructed ERPO policy should do so without delay, as such a plan is in the best interest of the department and community. 🛡

Notes:

¹Bernard Condon, “Red Flag Laws Get Little Use as Shootings, Gun Deaths Soar,” AP News, September 2, 2022.

²Condon, “Red Flag Laws Get Little Use as Shootings, Gun Deaths Soar.”

Please cite as

Joseph Lipari, “Utilizing Red Flag Laws: Preparing Your Agency to Execute Extreme Risk Protection Orders,” Police Chief Online, March 8, 2023.