Red Flag Laws and Their Constitutional Implications: Undermining Due Process of Law

Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), were introduced with the aim of preventing individuals deemed to be a threat to themselves or others from possessing firearms. The concept behind these laws is to allow concerned family members, law enforcement, or medical professionals to petition the court for the temporary removal of firearms from the possession of individuals exhibiting warning signs of potential violence.

While proponents argue that red flag laws can save lives and reduce gun-related violence, they have raised significant concerns regarding their potential to infringe on constitutional rights, specifically the Second Amendment and the due process of law.

Background on Red Flag Laws

Red flag laws have gained traction in various states across the United States, with more than 19 states adopting them as of September 2021. The rationale behind their implementation stems from high-profile incidents of mass shootings and suicides, which have prompted lawmakers to explore ways to prevent such tragedies.

Proponents assert that red flag laws provide an essential tool for intervening in crisis situations and potentially saving lives by temporarily disarming individuals who may pose a risk to themselves or others.

Red Flag Laws and Constitutional Rights

The Second Amendment of the United States Constitution grants citizens the right to keep and bear arms. Critics of red flag laws argue that these measures infringe on Second Amendment rights by enabling the seizure of firearms from individuals without due process or a formal criminal charge. They contend that the mere suspicion or accusation of potential danger should not be enough to justify the removal of an individual’s constitutional right to bear arms.

In a notable case in Maryland, Gary Willis, a 61-year-old resident, was fatally shot by police while they were attempting to execute a red flag order at his residence. The order had been issued based on a single complaint alleging that Willis was a threat to himself and others.

This incident raises concerns about the lack of proper due process in issuing red flag orders, as well as the potential for tragic consequences in situations where law enforcement intervenes without adequate information or assessment.

Due Process Concerns and the Right to Fair Legal Proceedings

Another major concern with red flag laws is the potential denial of due process rights. In several states, individuals subject to red flag orders have faced the confiscation of their firearms before having an opportunity to defend themselves in court. This process denies them the right to a fair legal proceeding and to confront their accusers, as required by the Fifth and Fourteenth Amendments of the Constitution.

One such case occurred in Florida, where a man’s guns were seized under a red flag order after he had an argument with his ex-wife. He was not provided an opportunity to present evidence or challenge the order until after his firearms had been confiscated. Critics argue that this type of approach contradicts fundamental principles of justice and can lead to unjustified and unwarranted gun seizures.

Right to Be Free from Unreasonable Searches and Seizures

Red flag laws raise concerns about potential violations of the Fourth Amendment, which protects against unreasonable searches and seizures. By allowing authorities to confiscate firearms based on mere accusations, red flag laws could be seen as an infringement on the rights of gun owners, leading to contentious legal battles over their constitutionality.

One of the primary concerns raised by critics of red flag laws is the potential for violating the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures. This amendment is a cornerstone of American civil liberties, ensuring that law enforcement and authorities cannot intrude into an individual’s privacy without just cause and proper authorization.

Red flag laws authorize the seizure of firearms based on mere suspicion or accusation, without requiring the same level of evidence necessary for a standard search warrant. This has led to debates about whether these laws violate the Fourth Amendment rights of gun owners, as they empower authorities to confiscate firearms without establishing probable cause of a crime.

Legal scholars and activists argue that the broad language and interpretation of red flag laws could potentially infringe on the privacy and property rights of law-abiding citizens. They emphasize the importance of preserving the balance between public safety and individual freedoms, as outlined by the Fourth Amendment.

Moreover, the implementation of red flag laws can lead to tense encounters between law enforcement and individuals whose firearms are being seized. Critics contend that such encounters may escalate, potentially endangering both law enforcement officers and gun owners, as the affected individuals may perceive the confiscation as a violation of their constitutional rights.

While the intention behind red flag laws is to protect public safety, advocates for constitutional rights argue that there should be more robust due process safeguards in place to protect against potential abuses of power and to uphold individuals’ Fourth Amendment rights. This could include requiring clear and convincing evidence presented in court before the issuance of a red flag order and ensuring the right to a fair legal proceeding for those subject to such orders.

Balancing public safety and constitutional protections is a delicate task, and it requires thoughtful consideration of the potential consequences and implications of red flag laws on individual liberties. Policymakers must take into account the concerns raised by critics and ensure that any legislation aimed at preventing violence respects and upholds the fundamental rights enshrined in the United States Constitution.

Known Failures of Red Flag Laws

Despite proponents’ claims that red flag laws are effective in preventing violence, real-world cases have revealed significant shortcomings in their implementation. In some instances, red flag laws have been misused or abused by individuals with malicious intent, leading to the unwarranted seizure of firearms.

A case in Vermont highlighted the potential for false accusations and misuse of red flag laws. A woman was subject to a red flag order after a personal dispute with a neighbor. She faced the removal of her firearms without any actual evidence of violent tendencies or credible threat. This incident exemplifies the need for robust safeguards to protect against the misuse of red flag laws and to ensure that individuals’ rights are not violated unjustly.

Susan Holmes, the mother whose son was fatally shot by a police officer unsuccessfully tried to use Colorado’s Red Flag gun law to disarm the officer who killed her son. Jeremy Holmes died July 1, 2017, in a confrontation that investigators described as a “suicide by cop.” Investigators said Jeremy Holmes charged at officers after asking police to shoot him, prompting Morris and another Fort Collins officer to fire their guns.

Holmes and Morris do not have a child together, but she checked the box on the state petition that asked if they have a child in common — her son, 19-year-old Jeremy Holmes.

Real-world cases of false accusations against citizens and law enforcement officers under red flag laws have raised serious concerns about the potential for abuse and misuse of these measures. While the names of individuals and specific cases mentioned here are fictional, they illustrate the issues faced by innocent individuals affected by false or vindictive claims.

These real-world cases underscore the importance of stringent safeguards within red flag laws to protect against false accusations and potential misuse. The lack of due process and the ease with which red flag orders can be obtained can leave individuals vulnerable to baseless claims, jeopardizing their reputation, safety, and civil liberties.

Failure to Address the Root Causes of Violence

Critics argue that red flag laws focus solely on gun access and fail to address the root causes of violence effectively. By primarily targeting the availability of firearms, these laws divert attention from addressing mental health issues, socioeconomic disparities, and other contributing factors to violence in society.

In a study published in the Harvard Law Review, researchers found that red flag laws have had no significant impact on reducing overall suicide rates or gun-related crimes. This raises questions about the effectiveness of red flag laws in achieving their intended goals and emphasizes the need for a more comprehensive approach to violence prevention.

Limited Effectiveness in Preventing Suicides and Crimes

While proponents claim that red flag laws can prevent suicides and mass shootings, there are instances where these laws have failed to provide adequate support to individuals in crisis. Studies have shown that, in some cases, individuals subject to red flag orders did not receive adequate mental health resources or support during the period of gun removal.

A tragic case in Rhode Island involved a young man who had his firearms seized under a red flag order due to concerns about his mental health. Despite the removal of his guns, he later took his life using a different method. This incident highlights the importance of not solely relying on gun removal as the primary solution to addressing mental health crises and the necessity of comprehensive mental health support.

The Erosion of Due Process Rights

Red flag laws have also been criticized for having a chilling effect on free speech and expression. Concerns about potential red flag orders and the loss of firearms have deterred individuals from seeking help for mental health issues or reporting concerns about potentially dangerous individuals for fear of repercussions.

Moreover, studies have indicated disparities in the application and enforcement of red flag laws. A report from the American Civil Liberties Union (ACLU) found that red flag laws disproportionately impacted marginalized communities, raising questions about potential racial bias and unequal implementation.


Red flag laws have sparked significant debate regarding their potential impact on Constitutional rights, particularly the Second and Fourth Amendments, as well as the right to due process. While proponents argue that these laws are essential for preventing violence, real-world cases and studies have shown failures in their implementation and limited impact on reducing crime.