Red-flag laws have languished in most statehouses across the U.S., despite bipartisan support and evidence that temporarily removing guns from people who pose an extreme risk of violence to themselves or others can help prevent mass shootings, suicides and domestic violence.
Lawmakers in 30 states have not passed — and in most cases are not likely to pass — red-flag laws, even as most of those states recently received millions in federal funding through the Bipartisan Safer Communities Act that aimed to help them create and implement the so-called extreme risk protection order programs.
Red-flag laws are already on the books in 19 states, and Michigan’s Legislature recently passed a red-flag law that is awaiting Gov. Gretchen Whitmer’s signature.
Most states without a red-flag law either noted in their federal funding application that they don’t intend to pass one or top lawmakers there have previously stated their opposition.
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In some cases, the states applied for and were approved for funding despite the fact that their congressional delegations voted against the legislation that supplied the money.
The funding was announced just weeks before an armed assailant fired 152 rounds at the Covenant School in Nashville, Tennessee, on March 27, killing three children and three adults. The shooting reignited a national conversation about red-flag laws after the police noted the assailant’s family was concerned about the shooter’s access to guns — and Republican Tennessee Gov. Bill Lee said he supported the idea.
What are red-flag laws?
Red-flag laws allow family members and law enforcement — along with in some cases, health care providers and school officials — to petition a court to temporarily prevent a person from accessing firearms if they are found to be a danger to themselves or others, according to the Department of Justice.
Advocates say the policy could help prevent a further uptick in gun violence deaths nationwide. Preliminary 2021 data from the Centers for Disease Control and Prevention shows there were 47,286 firearm homicides and suicides across the U.S. The firearm homicide and suicide rates were the highest since the early 1990s.
“These are just really common sense mechanisms to keep the most lethal form of killing out of the hands of someone who needs the time and safety to get help,” said Allison Anderman, senior counsel and director of local policy at Giffords Law Center, who works with states and local governments to draft and implement gun safety legislation.
But they aren’t always effectively implemented. For example, in the 2022 racist rampage in Buffalo, New York, which killed 10, the gunman previously was investigated for making a threatening statement, but he still was able to purchase a firearm and carry out the shooting.
Experts have said that in the Buffalo case one of the reasons the law didn’t work was that institutions such as law enforcement, schools and mental health professionals failed to fully communicate.
Still, proponents see them as effective tools that can prevent further carnage. Kentucky Gov. Andy Beshear recently called for the state to enact a red-flag law after another mass shooting in Louisville on April 10, when a gunman with a history of mental illness targeted Old National Bank, killing 5 and injuring eight.
But neither Tennessee nor Kentucky’s Legislatures have approved red-flag laws in their state, despite accepting millions from the federal program that would help them implement one — $6.7 million and $3 million, respectively.
$128M to states
A 50-state review by the Lee Enterprises Public Service Journalism Team found that 28 of the 30 U.S. states where lawmakers have not passed red-flag laws were awarded a combined $128 million from the Bipartisan Safer Communities Bill, out of nearly $240 million that was awarded to all the states and territories that applied.
Just three states without red-flag laws didn’t apply: Mississippi, South Dakota and Wyoming.
The money was designed to help states create and implement red-flag laws, but congressional Republicans successfully negotiated the elimination of any mandate that the funding be used for that purpose, allowing states without red-flag laws to also spend it on other gun violence reduction programs.
The majority of the states without red-flag laws accepting the funding either made no mention of red-flag laws in their funding applications or said they had no plans to initiate them. They plan to use the money for other purposes, like supporting safe gun storage programs, behavioral health programs, or investing in courts specializing in drug, mental health and veterans issues.
But those programs don’t address the immediate risk of a person who plans to harm themselves or others through gun violence.
“These are good places to spend money on the mental health side of our gun violence problems, but working with those institutions and programs while also addressing the immediate access to a firearm is a far more effective way to reduce gun violence,” said Nick Suplina, senior vice president for law and policy at Everytown for Gun Safety, a nationwide gun control advocacy group founded by former New York Democratic Mayor Mike Bloomberg. “This (funding) is Congress saying ‘Red-flag laws can save lives, you should enact one and we’ll be there with the funding to make sure you can implement it fully.’ … It very much should be a message to states that don’t have these laws, that it’s time to enact them.”
In some states, the reluctance to pass a red-flag law runs counter to the will of residents at large. In Wisconsin, 81% support a red-flag law, according to a Marquette University poll, but the policy has been a nonstarter in the Republican-controlled Legislature.
The state plans instead to spend $4 million from the federal program “on research around gun violence in Wisconsin and then on behavioral health deflection, court-based programs, and related training or outreach programs.”
In Tennessee, 71% of registered voters support red-flag laws, according to an Embold Research poll taken after the Covenant shooting.
But with the Tennessee legislature so far unwilling to pass the policy, Lee signed an executive order on April 12 tightening the background check process in his state. The order requires responsible parties to ensure that all criminal history and court mental health information is entered into the Tennessee Instant Check System or provided to the Tennessee Bureau of Investigation within 72 hours.
“That is something that can be done in states that don’t have the political will to pass actual legislation, ensuring that records of prohibiting histories like mental health records, criminal convictions, restraints, civil restraining orders, etc., are sent in a timely and effective manner to the various databases so that background check laws can be properly implemented,” Anderman said.
Meanwhile, gun safety advocates are continuing to fight for the red-flag laws in statehouses across the U.S. even as their chances of passage seem dim.
In Texas, gun safety advocate Nicole Golden, executive director of Texas Gun Sense, has helped state lawmakers file red-flag bills every session since the Parkland shooting. The bills haven’t received a hearing yet, but she says she’ll keep trying.
“I certainly hope this session is different,” Golden said. “We know it has been done and it can be done. As with a lot of the work we do on gun safety legislation, unfortunately, it can become divisive at the Capitol, even though most people out in the public agree. … Our commitment is to play the long game on this issue and to work incrementally as much as we can and as long as we have to.”
The majority of states with red-flag laws on the books passed them after the 2018 massacre at Marjory Stoneman Douglas High School in Parkland, Florida, that killed 17 people and left more wounded.
The Parkland tragedy sparked a rare window of bipartisan action on gun violence: The Republican-controlled Florida Legislature passed the red-flag law, and it was signed into law by then-Gov. Rick Scott. Gun rights advocates including the NRA signaled openness to the idea for a short time, and so did prominent Republicans including former President Donald Trump. In 2019, nationwide polling found that two-thirds of Republicans were supportive of the idea.
Legislatures in states including Illinois, Colorado, New York and Virginia followed Florida’s lead, passing their own programs. As of April 20, 19 states and D.C. had extreme risk protection order laws and Michigan’s Legislature has approved a bill that is waiting on Gov. Gretchen Whitmer’s signature. Minnesota’s Legislature is also considering passing a red-flag law this year too.
After Parkland, Suplina said, “there was a real sense that this is such a modest, easy approach to reducing gun violence, especially mass shootings, that you didn’t hear very much from the Second Amendment groups.”
“That’s because most gun owners know someone who at some point in their lives shouldn’t have had ready access to a firearm,” he said.
“That’s why these laws, maybe more so than any other in the 10 years that I’ve been working on this issue, have been adopted in such large numbers so quickly,” she said.
But the politics of red-flag laws have become increasingly complicated in the years after Parkland. Republicans including Texas Gov. Greg Abbott, who once signaled support for the concept, now are opposed. The NRA’s lobbying arm now says red-flag laws allow “run-of-the-mill malicious actors to indulge personal grudges against law-abiding gun owners.”
And in Florida, although Gov. Ron DeSantis has not repealed the state’s red-flag law, he is loosening other gun laws, signing a bill last month that allows anyone who can legally own a gun in the state to carry one without a permit beginning July 1. Training and background checks will not be required to carry concealed guns in public.
Even the Republican U.S. senators who negotiated and helped pass the 2022 bipartisan gun safety bill have been careful about appearing supportive of red-flag laws.
U.S. Sen. Thom Tillis of North Carolina, for example, who was one of 15 Republican senators to vote for the 2022 legislation, said through a spokesman that he “does not support a red-flag law nationally or in North Carolina.” His spokesman said the legislation was the result of a “carefully crafted negotiation” that requires states receiving funding for red-flag laws to “meet strict constitutional due process requirements.”
“Many red-flag laws passed in other states have not done enough to protect the due process rights of law-abiding citizens, and he believes most states need to amend their laws to increase due process protections,” Tillis spokesman Daniel Keylin said.
Fear of abuse
As more states have adopted red-flag laws, gun rights advocates have become wary that they will result in guns being taken away from people who haven’t committed crimes.
Mark Oliva, managing director for public affairs for The National Shooting Sports Federation, the trade group that represents gun manufacturers and dealers, said there are “serious concerns about these red-flag orders being abused and people being wrongfully deprived of their rights.”
Oliva said the group isn’t necessarily opposed to red-flag laws that include enough due process rights for the target of the order, but he said the group’s members don’t think any of the 19 states that have such laws on the books so far have gotten it right.
“When you deprive someone of their fundamental rights, they have to have an opportunity to be able to address or redress any claims or evidence that’s presented before a judge as you would in any other kind of hearing where you’re being deprived of your liberties,” Oliva said.
A judge is allowed to issue a short-term emergency extreme-risk order if they determine there is an immediate risk, but a longer-term removal of guns requires a hearing during which the person can defend themselves and respond to the evidence. The laws are similar to and were modeled off of domestic violence protection orders.
“All of the laws enacted have due process built into them,” Suplina said. “If there’s no merit to the petition, a judge is going to throw it out.”
Gun safety proponents say red-flag laws have already helped save lives. In California, for example, University of California-Davis researchers found that the state’s gun violence restraining order law, which went into effect in 2016, had been used to intervene in at least 58 cases of mass shooting threats.
“We know we have horrible, emotional reminders of what happens when we don’t have a red-flag law or have not taken advantage of a red-flag law like the case in Nashville,” Suplina, of Everytown, said.
The nearly $30 million in federal dollars awarded to California will go toward a number of measures including: research on best practices for firearms relinquishment in criminal courts, addressing behavioral health needs of people in the criminal court system who are likely to use guns or be victims of gun violence, mental health courts and veterans treatment courts, according to Kathleen Howard, executive director of the Board of State & Community Corrections.
The programs aren’t just intended to curb mass shootings. Gun violence researchers have seen a decrease in suicides and domestic violence incidents in states where they’ve been enacted. For example, Connecticut and Indiana both saw reductions in their firearm suicide rates after their red-flag laws were enacted.
And the UC-Davis study also showed that in the cases in which gun violence restraining orders were used after a person threatened self harm, no suicides occurred among people who had their guns removed.
“Gun violence is really complex,” said Lisa Geller, who studies gun violence at Johns Hopkins University Bloomberg School of Public Health. “I do want to make it clear that while we do see really promising evidence … of them being used every day to stop gun violence, they’re just one option here. Gun violence is still going to happen even with these laws in place.”
Julia Weber, a consultant at Giffords Law Center, has worked on identifying ways to most effectively implement gun policies throughout the country.
“Sometimes this is thought of as a very red and blue issue,” Weber said. “In every community across this country, there are steps we can take that have demonstrated that lives can be saved.”
Proponents also acknowledge there have been shortcomings with the implementation of existing extreme risk laws, such as with the 2022 Buffalo mass shooting.
Some states, like Florida, widely use their laws. Dana Kelly, communications coordinator for the Florida Department of Law Enforcement, said there are 3,448 active extreme risk protection orders as of April 10.
But an Associated Press analysis of red-flag law usage last year found that some states, like Illinois, have rarely used their laws.
“There’s a ton to be done to improve implementation,” Suplina said. “It’s a very useful tool, but only if you take it out of the toolbox.”
That’s something the federal funding was designed to address. For example, states could use the funding to create dedicated extreme risk order law enforcement units, or designate a community liaison to assist families who desire to use the law but don’t know where to start.
“I’ve been working for 10 years on this issue,” Geller said. “We haven’t had dedicated funding for (extreme risk law) implementation. If laws aren’t implemented, they don’t work. It’s been up to local leaders and states on their own to say, ‘this is something we prioritize and we’ll put money behind it.”
In states without red-flag laws, gun safety advocates hope the federal investment serves as a catalyst.
“I think what we’re still hoping is this could also serve as somewhat of an incentive for states to pass these laws in the future, knowing there will be funding available to use,” Geller said. “It’s a missed opportunity for states to not have this law in place and say they don’t intend to use it.”
In North Carolina, gun safety advocate Becky Ceartas of North Carolinians against Gun Violence, said funding from the federal government would be well-spent on securing guns.
“We have a real problem with this,” Ceartas said. “This can prevent school shootings. We don’t hear about where the child or the adolescent got their guns from. Many times, it’s coming from their own home or from that of a relative or friend. If guns were simply secured, this would become less of a problem.
But she still keeps pushing for the creation of a red-flag law, even though the politics don’t look promising in her state for now.
“Saving lives should not be a partisan issue,” Ceartas said. “It had to take a massacre at Parkland for (Florida) to enact an extreme risk protection order law. We should not wait for something like that to happen in North Carolina.”