In 2023, 46,728 people died from guns in the United States, including 27,300 who died by suicide (an all-time high), according to a report from the Johns Hopkins Center for Gun Violence Solutions and Johns Hopkins Center for Suicide Prevention.
One strategy to address gun violence is to enact what are commonly known as red flag laws. These laws enable law enforcement officers or others to petition courts to temporarily remove firearms from individuals if they pose a danger to themselves or others. In some states, mental health professionals such as counselors are allowed to petition the court.
Counselors need to understand the nature of red flag laws, controversies, and appropriate use so that they can meet legal and ethical obligations.
The basics
Red flag laws are also known as extreme risk protection orders (ERPOs) or gun violence restraining orders (GVROs). According to the Johns Hopkins Center for Gun Violence Solutions, 21 states, the Virgin Islands, and the District of Columbia have ERPO laws as of February 2025. The nature of these laws varies from state to state. Some states only allow law enforcement to make a request, while others allow family and household members, or clinicians (e.g., physicians, licensed clinical social workers, credentialed therapists) to file a petition.
ERPO laws contain a similar process (see sidebar #1). The petitioner usually needs to cite behaviors indicating that there is a danger in the person having a firearm, such as threats to harm themselves or others. Sherman notes that the petitioner could be asked to list the number, type, and location of the individual’s guns, as well as any past acts or threats of violence, substance abuse, and criminal history.
The Johns Hopkins Center for Gun Violence Solutions notes that in addition to whether the threat is imminent, judges should consider criteria such as recent acts or threats of violence towards self or others; history of threatening or dangerous behavior; history of, or current, risky alcohol or controlled substance use; recent violation of a domestic violence protective order; unlawful or reckless use, display, or brandishing of a firearm; or cruelty to animals.
The ERPO decision should not be made solely on whether the person has a mental illness diagnosis. As the National Alliance of Mental Illness notes, “Most people with serious mental illness are never violent toward others and are more often victims of violence than perpetrators.”
Judges typically grant an ERPO. If an imminent threat of harm exists, the court issues an ex parte, or temporary, ERPO that takes effect quickly and typically lasts for 1 to 2 weeks. During that time, a civil hearing is held so the client can testify on their own behalf and have an attorney present.
Based on the hearing, the court may issue a final order that usually lasts up to one year, although the order can be extended.
Viewpoints and evidence
Some believe ERPOs violate a person’s right to due process, and others worry about erroneously being deprived of their firearms or feel that ERPOs violate Second Amendment rights.
The Johns Hopkins Center for Gun Violence Solutions notes that procedural safeguards are in place to ensure due process. In addition to judicial oversight, petitioners must provide information under oath to support the petition, and many ERPO laws make it a crime for someone to file a petition knowing the information to be false or with the intent to harass.
Sherman notes that courts in some states (e.g., Connecticut, Indiana, Florida) have ruled that ERPOs don’t violate people’s rights and that they are constitutional. She adds that ERPOs involve a civil hearing with judicial oversight, where people can testify and don’t risk prison. Prosecutors are involved only if someone violates an order.
A separate issue is whether these laws are effective. A study by Swanson and colleagues estimates that one death by suicide is prevented for every 17 ERPOs issued. In addition, a study by Zeoli and colleagues found that 10% of ERPOs in six states were related to threats to kill at least three people. Judges granted 93% of petitions related to these threats at the initial stage and granted 84% of final ERPOs. The researchers note that although how many mass shootings were prevented is not knowable, the data indicate that EPROs “are being used in six states in a substantial number of these kinds of cases that could have ended in tragedy.”
A Rand report that systematically reviewed studies related to ERPO laws found that in the case of suicide or self-injury, the laws either reduced suicide or had an uncertain effect. However, the report categorized research related to the impact of ERPO laws on mass shootings, unintentional injuries and deaths, and violent crime as “inconclusive,” adding that lack of evidence didn’t necessarily mean the laws did not affect the outcomes.
The Rand report notes that most ERPO laws have been implemented within the last decade, making it challenging to identify the impact. In addition, there are significant differences in how often ERPOs are being used, which makes it more difficult to determine the effect.
Considerations for counselors
In some states, counselors can initiate a petition for an ERPO. If so, the counselor should read the law carefully and follow the steps.
HIPAA (Health Insurance Portability and Accountability Act of 1996) has addressed the disclosure of protected health information to support an ERPO application. Disclose is permissible when it’s required by law (e.g., statute, regulation) and “when the disclosure is in response to an order of a court or administrative tribunal, subpoena, discovery request, or other lawful process in the course of a judicial or administrative proceeding.”
Wheeler notes that the counselor should only provide the information necessary to achieve safety for the client or others; HIPAA refers to this as the “minimum necessary” standard. HIPAA also states that disclosure is permissible when it’s “necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.” This aligns with “duty to warn” laws (see sidebar #2).
Typically, ERPO laws note that petitioners can’t be held liable for initiating the petition, provided they acted in good faith and followed procedures (for example, provided truthful information). It’s important for counselors to be familiar with the details of the law and to document the reasoning for the decision to pursue this avenue.
Another role the counselor can play is educator. Counselors can provide information about ERPO if a family member who knows the client is being treated expresses concern about threats the client has made to themselves or others.
Counselors who are called to testify at a hearing should notify their provider of liability insurance. In addition, Wheeler suggests that counselors who practice in ERPO states include possible initiation of the weapon-removal process in their initial discussions with clients (and document these discussions) and amend the informed consent document to include this option.
Keeping people safe
ERPO laws have the potential to reduce deaths caused by firearms. Counselors in states with these laws need to know when it’s appropriate to file a petition and how to help those seeking to file one. Even counselors in non-ERPO states usually have a legal duty to warn if a client poses a danger to themselves and others. Ethically, counselors can proceed as needed to promote safety, but need to document their actions carefully to reduce the risk of liability.
Cynthia Saver, MS, RN, is a medical writer in Columbia, Md.
Note: This content does not construe legal advice.
Sidebar #1
ERPO process
The Johns Hopkins Center for Gun Violence Solutions outlines the extreme risk protection order (ERPO) process:
- The petitioner files a temporary ERPO petition under penalty of perjury.
- A judicial officer approves or rejects the petition and grants or denies a temporary ERPO.
- If the court issues the order, law enforcement serves the order and provides related information to the respondent. Ideally, firearms are removed and surrendered at that time, and the ERPO is entered into the background check system to prohibit gun purchases for the duration of the order.
- A final ERPO hearing is held; the respondent and petitioner both attend, and both may testify and present evidence. The respondent is afforded the right to counsel at their own expense. The judge determines whether the legal burden of proof has been met and if there is sufficient evidence to issue an ERPO.
- If an ERPO is issued (usually for 1 year), the respondent is advised of requirements for complying with the order and information is provided about how the renewal process works.
- At the end of the order, if a renew hasn’t been requested and the respondent is not otherwise prohibited, the firearms are returned (process varies by state) and the background check system is updated.
Sources: Johns Hopkins Bloomberg School of Public Health Center for Gun Violence Solutions. Extreme risk protection orders. n.d. https://publichealth.jhu.edu/center-for-gun-violence-solutions/solutions/red-flag-laws-or-erpos
Sidebar #2
Duty to warn
According to the National Conference of State Legislatures, most states have “duty to warn” or “duty to protect” laws that either require or permit mental health professionals to disclose information about patients who may harm themselves or others. These laws, which may be mandatory or permissive, usually protect professionals such as counselors from civil or criminal liability. The law may also protect counselors from liability for failure to report if they acted “in good faith.”
Adhering to these laws doesn’t violate ethical duties. The American Counselors Association Code of Ethics notes that a counselor’s responsibility to protect a client’s confidentiality doesn’t apply when disclosure is required to protect clients from “serious or foreseeable harm.”
During the initial session, counselors should document their discussion related to confidentiality and reasons for exceptions and have the client sign a statement of understanding.
Sources: National Conference of State Legislatures. Mental health professionals’ duty to warn. 2022. https://www.ncsl.org/health/mental-health-professionals-duty-to-warn; U.S. Department of Health and Human Services. Summary of the HIPAA Privacy Rule. n.d. https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html#intro
References
Ashok VA, Knoepke CE, Burnett JR, Pahsa AS. Extreme risk protection orders-ethics for clinicians. JAMA Intern Med. 2025;185(6):617-618. doi: 10.1001/jamainternmed.2025.0519
Johns Hopkins Bloomberg School of Public Health Center for Gun Violence Solutions. Extreme risk protection orders. n.d. https://publichealth.jhu.edu/center-for-gun-violence-solutions/solutions/red-flag-laws-or-erpos
Kim R, Wagner ED, Nestadt PS, Somayaji N, Horwitz J, Crifasi CK. Gun violence in the United States 2023: Examining the gun suicide epidemic. Johns Hopkins Bloomberg School of Public Health, Johns Hopkins Center for Gun Violence Solutions, Johns Hopkins Center for Suicide Prevention. 2025. https://publichealth.jhu.edu/sites/default/files/2025-06/2023-cgvs-gun-violence-in-the-united-states.pdf
National Alliance of Mental Illness. Extreme risk protection/red flag laws: Where we stand. 2020. https://www.nami.org/Advocacy/Policy-Priorities/Responding-to-Crises/Extreme-Risk-Protection-Orders/
National Conference of State Legislatures. Mental health professionals’ duty to warn. 2022. https://www.ncsl.org/health/mental-health-professionals-duty-to-warn
Rand. The effects of extreme-risk protection orders. 2024. https://www.rand.org/research/gun-policy/analysis/extreme-risk-protection-orders.html
Sherman A. Ask PolitiFact: What are red flag gun laws and do they keep people safe? PolitiFact. 2022. https://www.politifact.com/article/2022/jun/10/ask-politifact-what-are-red-flag-gun-laws-and-do-t/
Swanson JW, Zeoli AM, Frattaroli S, et al. Suicide prevention of extreme risk protection order laws in four states. J Am Acad Psychiatry Law. 2024;52(3):327-337.
U.S. Department of Health and Human Services. Summary of the HIPAA Privacy Rule. n.d. https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html#intro
U.S. Department of Health and Human Services. HIPAA Privacy Rule and disclosures of protected health information for extreme risk protection orders. 2021. https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/extreme-risk-protection-orders/index.html
Wheeler AMN. Implications of red flag gun laws for counselors. Counseling Today. 2019.
Zeoli AM, Frattaroli S, Barnard L et al. Extreme risk protection orders in response to threats of multiple victim/mass shooting in six U.S. states: A descriptive study. Prev Med. 2022;165(Pt A):107304. doi: 10.1016/j.ypmed.2022.107304