Extreme Risk Protection Orders (Red Flag Laws)

Explanation of the issue

Having the ability to take timely action when warning signs appear is critical for saving lives, especially when firearms are involved. Suicide can be an impulsive act particularly so for teens who are suffering from mental health crises at even higher rates. In the majority of mass shootings, the perpetrator has exhibited dangerous warning signs that could be addressed.

Extreme risk protection orders (ERPO’s), also known as red flag laws, are an effective means to de-escalate an emergency and save lives. They allow law enforcement officers, after an evidentiary hearing and court order that must meet specified standards, to temporarily remove a gun from the possession of someone who is experiencing a mental health crisis and who is determined by a judge to be at risk of harming themselves or others with a firearm. If such a finding is made, the gun is taken into custody by law enforcement. Within a short time thereafter a second hearing is held when additional evidence may be presented to determine if the initial order should be extended.

Red flag laws save lives. The Department of Justice has just launched the National Extreme Risk Protection Order Resource Center with up to date ERPO information. It also provides technical assistance and training. The press release can be found here.

In 2021 after a concerted push from gun violence prevention advocates, including the Maine Gun Safety Coalition, the state of Maine enacted a compromise law known as the “Yellow Flag Law.” This law is similar to red flag legislation but more difficult to implement and less effective.

• Maine’s Yellow Flag law works as follows: When relatives are concerned that a family member is suffering a mental health crisis and may be a threat to the safety and well-being of themselves or others, they may call law enforcement to seek an order temporarily restricting that person’s access to firearms. The law requires that the individual be taken into temporary police custody until such time as a medical evaluation can be completed. If a medical professional determines that the person is a threat to themselves or others, they may certify that the person should not have access to firearms. A court may then order that police are allowed to remove firearms from the person’s residence, and that the person is not to possess or maintain firearms for a temporary period of time. As of 2023 the law is having an impact but is an involved process.

• This process is unduly harsh and makes it unlikely to be used by families who do not want to further traumatize their loved ones by having them taken into custody. Further, medical evaluations are very hard to come by in Maine, especially on an expedited basis, causing an unnecessary delay that may be fatal. These steps are unnecessary to provide the protection needed. A court order from a judge, after reviewing the evidence, can be issued in far less time, offering protection with the same due process safeguards and without the trauma and stigma of temporary police custody of the person, rather than the guns. Finally, Maine’s Yellow Flag law, unlike a traditional Red Flag/ERPO law, does not allow the family to directly petition the court and the law conflates mental illness and mental health crisis which in turn, may disincentivize family members and law enforcement from seeking an order.