DOJ Issues Model ‘Red Flag’ Gun-Removal Laws That States Can Use As Blueprint

June 8, 2021

By a Biometrica staffer

On Monday, June 7, the Department of Justice (DOJ) issued model legislation for states to use as a blueprint to create their own extreme risk protection order (or ERPO) gun removal laws — sometimes called “red flag” laws — in a bid to address the ongoing epidemic of gun violence in the country. Along with the model red flag laws, the DOJ also issued a notice of proposed rulemaking that makes it clear that when individuals use accessories to convert pistols into short-barreled rifles, they must comply with heightened regulations on those “dangerous and easily concealable weapons.”

The steps announced by the DOJ on Monday are a part of the executive actions that President Joe Biden announced in April to tackle rising gun violence. To be sure, mass shootings and gun violence continue to be on the rise. Just last weekend, for instance, this type of crime claimed at least 16 lives in the country, according to a CNN report.

Red flag laws allow family members or law enforcement officers (LEOs) to petition for a court order temporarily banning people in crisis from accessing firearms if they present a danger to themselves or others. By allowing family members or LEOs to intervene and to petition for these orders before warning signs turn into tragedy, ERPOs can save lives, the DOJ said in the statement. They are also an evidence-based approach to the problem. Research has shown that states can save lives by authorizing courts to issue ERPOs, the DOJ added.

Orders of this nature may be sought in some jurisdictions, for example, by family members or others concerned that an individual who is suicidal or otherwise in crisis will use a firearm to seriously injure or kill themselves or another person. The model legislation to address such cases draws on a significant number of similar laws adopted across the country. Existing state statutes can be of two types, the DOJ says:

  • “Warrant” statutes provide an immediate basis for law enforcement to seek court orders temporarily preventing individuals in crisis from accessing or possessing guns. But they do not provide an ongoing prohibition against such individuals from possession or acquisition of firearms, and do not provide a basis for entering those persons into the National Instant Criminal Background Check System, and corresponding state firearm background check systems as individuals prohibited from possessing firearms.
  • “Order” statutes provide for ongoing prohibitions of firearms possession and acquisition, and a basis for entering dangerous individuals into the background check systems as ineligible to possess firearms. But their design may require an LEO to initially present the order to the said person, and ask them to surrender their firearms. If the person does not comply, and the firearms are not in plain view during the encounter, a second step may be required in which the LEO goes back to court and secures a search warrant to look for and seize the subject’s firearms. The delay may inadvertently give the subject advance notice and time to hide the firearms, or potentially even time to use them to seriously injure or kill someone before the police can return with a search warrant.

“This model legislation combines both approaches. It includes language that would authorize the judicial issuance of no-firearms orders for dangerous individuals and the concurrent issuance of search warrants to search for and seize their firearms. It further provides that, in qualifying emergency circumstances, the subject may be served with the order concurrently with or after the search is carried out. The process would be overseen by a court to ensure the protection of the individual’s rights. Legislation authorizing ERPOs would supplement, not replace, existing laws authorizing the issuance of protection orders to prevent intimate partner violence. This legislation similarly would not displace existing state laws on involuntary commitments,” the DOJ says.

“ERPO laws are likely to be more effective when their implementation is adequately funded and supported by a broad array of affected stakeholders. Law enforcement, health care providers, community leaders, victim advocates, and others may not only help shape the appropriate scope of a state’s particular legislation, but also be critical to ensuring that people in the community are aware of the process for petitioning for an ERPO. Similarly, law enforcement should receive adequate training on ERPO laws, including on issues, for example, like filing a petition and executing an ERPO, implicit bias, de-escalation techniques, and crisis intervention,” it adds. You can find more from the DOJ on recent measures to reduce gun violence here.

While those who are for the updated red flag law say it allows a person’s loved ones to warn LEOs before the person is even given a chance to endanger themselves or others, critics say the rules are too arbitrary and can be weaponized against gun owners during personal disputes, an NPR report details.

The other measure announced by the DOJ ensures statutory restrictions on short-barreled rifles apply to pistols that are equipped with certain stabilizing braces, intended to be fired from the shoulder as well. The National Firearms Act imposes heightened regulations on short-barreled rifles because they are easily concealable, can cause great damage and are more likely to be used to commit crimes. The shooter in the Boulder, Colorado mass shooting in March reportedly used a pistol with an arm brace. A brace is a modification to a pistol that can effectively turn it into a short-barreled rifle by stabilizing the shooter’s arm.

But companies now sell accessories that make it easy for people to convert pistols into these more dangerous weapons without going through the statute’s background check and registration requirements, the DOJ said on Monday. These requirements regulate the transfer of these dangerous weapons, and help ensure they do not end up in the wrong hands.

What exactly does the rulemaking propose? Here’s an excerpt from the Bureau of Alcohol, Tobacco, Firearms and Explosives website saying the rulemaking proposes to:

  • Amend the definition of “rifle” in 27 CFR 478.11 and 479.11, respectively, by adding a sentence at the end of each definition to clarify that the term “rifle” includes any weapon with a rifled barrel and equipped with an attached “stabilizing brace” that has objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder.
  • Set forth a worksheet “Factoring Criteria for Rifled Barrel Weapons with Accessories commonly referred to as ‘Stabilizing Braces,’” ATF Worksheet 4999, to aid the firearms industry and public in understanding the criteria that ATF considers when evaluating firearm samples that are submitted with an attached “stabilizing brace” or similar component or accessory.
  • It would not affect “stabilizing braces” that are objectively designed and intended as a “stabilizing brace” for use by individuals with disabilities, and not for shouldering the weapon as a rifle. Such stabilizing braces are designed to conform to the arm and not as a buttstock.

Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments. To view the entire Notice of Proposed Rulemaking, click here.

The measures listed by Biden in April also included closing a loophole to help stop the proliferation of “ghost guns,” by updating the definitions of firearm and related parts for the first time since 1968, which the DOJ announced in May.

Ghost guns are self-assembled firearms with parts that do not include serial numbers. As they’re handmade, they do not require background checks and the acquisition of a ghost gun skirts federal gun laws.
When you buy a gun from a licensed dealer, that gun, or more specifically, its receiver, is made by a licensed manufacturer, and is marked. It has a serial number that can be traced, which is invaluable for tracking crimes. The intention of the ghost gun rule would be to require that components in gun-assembling kits have serial numbers that would allow them to be traced, and for the kits (receivers) to be legally classified as firearms. 

“The Justice Department is determined to take concrete steps to reduce the tragic toll of gun violence in our communities. Today we continue to deliver on our promise to help save lives while protecting the rights of law-abiding Americans. We welcome the opportunity to work with communities in the weeks and months ahead in our shared commitment to end gun violence,” Attorney General Merrick B. Garland said in the DOJ statement on Monday.