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♪ ♪ KATKO: Welcome, America, to "Balancing Act", The show that aims to tame the political circus of two-party politics.

I'm John Katko.

This week, red flag laws.

They're designed to stop dangerous people from possessing guns before it's too late.

In the center ring, we'll hear from Joshua Horwitz from the Johns Hopkins Center for Gun Violence Solutions on their effectiveness.

On the trapeze, we'll speak with the professor of political science and a legal expert from the Cato Institute to debate whether red flag laws are a common-sense tool for public safety or an overreach of individual rights.

Plus, I'll give you my take.

So let's get started.

♪ ♪ KATKO: On February 14th, 2018, 19-year-old Nicholas Cruz walked into Stoneman Douglas High School in Parkland, Florida, with a semi-automatic rifle.

He opened fire on students and staff, killing 17 people and wounding an additional 18 others.

In the aftermath, the city, the state, and the country were left asking, how could this happen?

And they continued to ask that question as it unfolded, that the FBI, among others, received several tips about the shooter's threats and erratic behavior from as early as 2012.

A 2018 tip to the FBI, for example, disclosed several Instagram accounts belonging to Cruz that detailed a mutilation of animals, his access to guns, and statements expressing desires to hurt others.

The agency had failed to act on any of these so-called red flags, and Cruz was still legally capable of possessing a firearm he ultimately used in the attack.

Why can't anyone with such a documented and questionable history be stopped before committing a horrific act?

This moment of outrage motivated a renewed effort in lawmakers to take action.

A three-week effort in the Florida legislature resulted in a new Public Safety Act, which included a provision known as a red flag law.

Red flag laws enable law enforcement officers or agencies to file what they call a risk protection order, or an RPO, on someone deemed a danger to themselves or others, and temporarily seize firearms from their possession.

Since this tool was introduced in Florida, there have been more than 15,000 RPO filings, with the state courts granting 94% of these requests.

Florida was the sixth state in the nation to enact such a law, and since 2018, 15 other states have joined them.

But in the case of Florida, the situation was, and remains to this day, unique.

That is because Florida is a heavily Republican-led and traditionally gun-friendly state.

And RPO filings in Florida can only be completed by law enforcement officers.

In other states, family members, employers, and even doctors can also file such petitions.

But do red flag laws really work?

Prevention is tough to measure.

You can count the crimes that happen, but how did they come to those conclusions and those statistics?

Of the ones that happened, we know this: according to a 2023 report from the FBI, 94% of mass shooter incidents that year involved shooters that communicated their intentions to a third party in advance.

And a 2022 study from the Rockefeller Center said thatof foiled school shootings over the last 20 years, 65 percentof those incidents were stopped when a would-be shooter signaled the plans in advance.

Critics argue these laws allow the states to take firearms before due process has played out, undermining constitutional rights such as the second amendment.

Laws also vary widely from state to state, not only who can petition, but in how long orders last and whether hearing happens before or after a firearms are seized.

But those who support red flag laws argue they serve as a necessary counterbalance to preserve gun rights laws while maintaining public safety.

The process for firearm removal is supervised by the legal system and state courts.

And requires a high burden of proof.

So, where do we go from here?

Should more states adopt red flag laws in are they a commons Sense tool for public safety or an overreach that infringe on individual rights.

And do they really work?

For more, let's turn to our expert in the center ring.

Joining now is Joshua Horwitz from the Johns Hopkins Center for Gun Violence Solutions.

Welcome, my friend.

HORWITZ: Thanks for having me.

KATKO: So, right off the bat, what are red flag laws and how did they become so popular across the country?

HORWITZ: Well, red flag laws are temporary civil protection orders that focus on removing a firearm temporarily from someone who is at risk, from harm to self, or harm to others.

In other words, homicide or suicide, with a firearm.

And these were developed because law enforcement needs clear legal authority to remove a firearm.

You might remember, back in 2013, we had these terrible shootings at Sandy Hook, we had shootings with Gabby Giffords, and those were situations where people had access to firearms, but they weren't legally prohibited.

Red flag laws give an opportunity for law enforcement to develop a case to remove firearms from someone who was at risk.

KATKO: So the warning signs, I guess, are what they're trying to find and use to get these red flag laws implemented.

So what type of warning signs are there out there back then?

What are they today?

HORWITZ: Well, they're the same.

So you think threats-people making threats against other people, or to themselves?

People who make threats who have a history of violence.

You might add something like abusive alcohol use on top of that.

You might think about someone who's being cruel to animals.

Other factors that are in there-they're all spelled out in the law-but often, you don't want to look at necessarily one factor.

You look at a combination of factors.

And that's why you need judicial intervention.

Judges will look at the factors, they'll make a decision, and they'll decide whether someone is violent or has a potential to be violent, and they'll order the gun be removed, if necessary.

KATKO: Okay, let's take a case study just for a moment, if I can, and that's the Parkland shooting in Florida, where so many children and adults tragically lost their lives.

What were some of the warning signs in that case that were pretty obvious?

HORWITZ: Well, I think the shooter at that point was acting erratically.

He was making threats, people knew that, he had acquired firearms.

Yet he had not necessarily committed a felony offense.

And typically, people have their firearms removed.

For instance, you can't have access to firearms if they've been convicted of a felony, if they've been committed to a mental institution.

But here, all the warning signs had happened, but a crime had not necessarily been committed.

If there had been a red flag law in place, law enforcement could have gone to court and temporarily removed firearms before a tragedy.

KATKO: So now let's take a look at the online component of this, because it seems like a lot of times, these potential shooters are posting things online.

Is that true?

HORWITZ: Well, you know, right now we see what we do see a lot of violent threats online.

It's not that necessarily violent videos are making the difference, but we're seeing threats on Twitter and Facebook, and those should be taken seriously when people make a threat to somebody else or if they're making a threat to themselves and they have access to a firearm, that's when this should kick in.

So if someone has a record of being violent, if they're making threats, and then now they're online, making an individual threat to somebody, you've got to take that seriously.

Now, we are not advocating, "Hey, somebody says something silly on Twitter one day, go take their guns."

That's not the point.

The point is when you have a pattern of violence and you're really worried, this gives law enforcement that clear legal authority, get the gun out of the way, figure out what else is going on.

KATKO: So let's talk about some of the mechanics of how it actually works.

Someone has to make a determination or report to the court, and then you go from there, correct?

And it depends, like in Florida, it's a little different because when a law enforcement can do it in some states individuals.

So tell us what the differences.

HORWITZ: That's correct.

So this is all judicial, so it's not like, "Oh, my neighbor goes to law enforcement, your gun gets taken away."

And remember, these are all temporary.

But either, it depends on what state-in Florida, it's only law enforcement.

Law enforcement would go to the court, they would make a petition under oath, under penalty of perjury, and they would say they'd list out the criteria and the risk factors.

And the court would then make a decision.

Now, typically, these are done in a very quick manner, and there's a petition filed, but then, 14 days later, everybody comes back to court.

The person who had the firearm removed, the person who made the petition, the judge is there, of course.

And you have a hearing, and you decide whether that order will go forward.

And that's very consistent with due process.

So in the case of a family member, a family member where it's authorized, can file a petition, go to a judge, ask for the firearm to be removed.

But remember, all under penalty of perjury with due process in front of a judge.

KATKO: Okay, so we know what a red flag law is now.

The idea is to get the guns out of people's hands before they commit a crime or do something harmful to themselves or others.

So that's the law end of it.

Now you have the people of the gun rights advocates who will say that it's infringing on individual rights, in particular the Second Amendment.

How do you address that?

HORWITZ: Well, I address it a number of ways.

First of all, we built these red flag laws on domestic violence protection orders.

Domestic violence protection orders, obviously, when there's domestic violence in a household or something like that, there's a civil order that separates the people.

But often there's a gun prohibition that goes around that order.

We've built it on the same way, and those laws have been upheld many, many times by the states, and they've been upheld recently in the Rahimi case by the Supreme Court.

KATKO: When was that case decided-the Rahimi case?

HORWITZ: Two years ago.

KATKO: Two years ago, and that was with a Republican-dominated Supreme Court, is that correct?

HORWITZ: Oh, that's absolutely right.

In fact, it was an 8-to-1 decision.

KATKO: Tell us about some of the details of that case, if you would.

HORWITZ: Well, that case is a really horrific case.

That was somebody who had a firearm, had hurt his-beat up his girlfriend, and then used that firearm in other additional shootings.

And he was arrested, and he said, "Look, it's a felony for you to have a firearm after you've had this protection order."

And what he argued was, "Hey, it's unconstitutional.

These protective orders are all unconstitutional because they violate the Second Amendment."

And what the Supreme Court said is, "No, no, no, here is a finding that you're dangerous, you've been acting violently, you had your day in court.

And just because it's a civil protection order doesn't mean that it's violating the Second Amendment."

And so the Rahimi case allowed the gun prohibition into domestic violence protection orders to move forward.

We have built red flag laws on the same model.

And it's not a surprise that every state that has considered red flag laws, every state Supreme Court has upheld these both on Second Amendment and due process grounds.

KATKO: Now, like any case, you need a complainant, if you will.

Somebody that brings the case forward to authorities or to the courts.

And in Florida, the only person that can do that is law enforcement.

In other states, all kinds of people can do them.

And why did Florida just go with just law enforcement?

HORWITZ: You know, I think there may have been concern that, you know, if you included family members or other people that there would be just too much litigation or something like that.

We've seen this in other states, and the reality is that very few family members are using this.

It's almost exclusively law enforcement, even in states that allow family members.

There are cases when family members are the best types of petitioners.

I happen to be here in City of Maryland today.

Maryland is one of the few cases that we really see lots of family petitioners.

But in general, it's almost all law enforcement.

So this feeling that, "Oh, family members can do it, the courts would be overrun," or something like that-that just has not played out in practice.

And we have red flag laws now in 21 states, the District of Columbia, the Virgin Islands, so we're able to watch this carefully.

And I do think that there are certain cases where family members would be appropriate.

The other petitioner that I'd like to see are health care providers, licensed health care providers.

They're often in the opportunity to provide the opportunity to see a disaster before it happens.

And again, in states that have healthcare providers, healthcare providers are filing them rarely, but when they need to, it's a tool that they have.

>> But like, the last thing we haven't talked about is immeasurables.

Do these laws work?

I mean, and if they are working, how do we know that they're working?

How do you quantify it?

>> We've seen a number of now that show approximately for every 20 red flag laws, one life is saved.

And we've seen other studies showing reductions in firearm suicide rates.

So all the arrows are pointing in the right direction.

This is a relatively new law, relatively new intervention, so we are certainly studying this and looking at this every day.

But as I mentioned, the evidence is pointing in the right direction right now.

And that's a good thing.

KATKO: Yeah, I just want to make sure I understand that.

We've got about a minute left.

How are did they come to those conclusions and those statistics?

What were the measurables?

HORWITZ: Well, they could see Who were subject to a RPO, and then they could calculate, could see who died by suicide or homicide.

And then they could make that calculation.

And they've done that across numerous states right now.

So that's research from Jeff Swanson and others Jeff is at a Duke University and his latest study was done.

It's called the Multistate Study with other researchers at other universities.

So those numbers are pretty robust.

KATKO: And what are some of the common complaints with these laws briefly?

HORWITZ: Would you mean complaints?

You like, what type of cases?

Well, oftentimes we see cases, we see, for instance in the workplace.

We see people who are suicidal, and we see, you know, off the people who are making threats to others.

If you're thinking about what could be done better, could be done better, yes.

in that case, you know, in Florida, for instance, we would like to see family members added to the people who can petition, as well as some states now have health care petitioners.

I sit today in Maryland and we have health care petitions in Maryland for doctors, nurses, and other licensed healthcare providers.

I think that's a great idea.

I'd also like to make sure people think about suicide with this.

We all often think about gun violence is simply a homicide problem, but gun violence, more people die from gun suicide than gun homicide.

And these red flag laws can be very helpful in that regard as well.

So I think we should make sure that we have all the petitioners that we need, not everybody, but people like law enforcement, family members, healthcare providers, and that we make sure that we're thinking about harm to self as well.

KATKO: Thank you, Mr.

Horwitz, for a fascinating conversation.

HORWITZ: Thanks for having me.

KATKO: Now, let's continue the discussion on the trapeze.

♪ ♪ On the trapeze this week is Professor of Political Science at Lagrange College, John Tures, and senior Vice President of Legal Studies at the Cato Institute, Clark Neily.

Welcome, gentlemen.

TURES: Thank you for having us.

KATKO: Now, John and Clark, I want to start with an actually use as a backdrop for our conversation.

The Florida red flag law.

It's kind of unique in that only law enforcement can initiate it, and it's been implemented a remarkable amount of times for a ruby red state with liberal gun laws.

So John, let's start with you?

Does the law work and should it work, and what would you do differently?

TURES: Sure, you have the seven states with the lowest firearm mortality rates from CDC data, six of them have a red flagged law.

Now, if you look at the 12 states that have the highest firearm mortality rates, 11 of them do not have a red flag law.

The only one that does is New Mexico, and they only recently implemented theirs before the data was collected.

KATKO: It's like, Clark, you know thoughts?

NEILY: Well, it's impossible to know whether it's the red flag law that's doing the work there, or maybe there's something about these states where the less likely a state is to have a red flag law than the more likely it is to have high levels of gun violence and vice versa.

So it's the classic correlation causation challenge, and we just don't really know whether it's the red flag laws that are doing all this work and keeping the gun deaths down.

It's possible that they are, but we want to do a much more sophisticated study with some regression analysis before we came to the conclusion that it's actually the red flag laws that are the primary contributor to those low levels of gun violence.

KATKO: So I do want to talk about that.

Has there been any studies done, Clark or regression is diving deeper into this issue to try and figure out if they actually work?

NEILY: Well, lot of similar constitutional lawyers, not a social scientist.

I'm not aware of any studies that have really done a rigorous analysis and shown a causal relationship between red flag laws and levels of gun violence, but perhaps, you know, it may be that there are studies out there, and I just don't know about them.

KATKO: So, John, one of the things that I wonder about when I'm analyzing this issue is, the person that initiates a proceeding in Florida, law enforcement is the only one who can initiate the proceedings.

In other states, it could be anybody, including a jilted lover or someone who's pissed off at their parents, or whatever.

So how do we analyze who should we bringing these?

Does Florida get it right or it shouldn't be different?

TURES: Yeah, I mean, I think that some of the gun rights or the gun control people would like tougher laws.

I think Florida ranks 21st and most rigorous and most of it comes from this ERPO.

On the other hand, you have to go through law enforcement.

You know, they have to agree to this.

A judge has to agree to it.

So there's some checks and balances in the system.

I do want to point out that I'm not anti-gun sales Here in our headquarters, Remington Arms is located in Lagrange, Georgia, where I teach.

So hoping that they stay in business and keep the money here.

KATKO: So, Clark, your thoughts on whether or not it should only be law enforcement bringing these proceedings as opposed to anybody else?

NEILY: Yeah, well, we can see, in general, and very much so in Florida, if one of these cases is brought, the judge is almost certainly going to grant the order.

And that's a bit concerning.

I think we see about a 94% grant rate in Florida.

And that's probably because there's so much pressure on the judge.

I mean, who wants to be the judge that said no, and then the person goes out and uses a gun to do something terrible?

So there's a very high likelihood that the order will be granted.

And so I think that you can make an argument that you want to limit the number of people who can actually initiate the process.

As you mentioned before, you know, we don't want to have a situation where, you know, there's a bad breakup or, you know, two friends that had a falling out, and there's no real threat of violence.

It's just one person trying to get back at the other.

So, you know, there's always costs and benefits, but I think on balance, probably having law enforcement be the sole entity that can initiate the process is a good balance, good trade-off.

KATKO: You know, this is kind of a general question.

I'm going to ask you both the same question, and I'll start with you, Clark.

And that is, here's Florida, and now a very red state, with very liberal gun laws, and they've had this risk protection order granted about 15,000 times.

How do you make sense of that?

Clark?

NEILY: Well, I think it's because, again, you're going to just see a very high grant rate.

If somebody brings a case to the court, the court's probably going to say yes, because there's so much pressure not to be the judge that made a mistake.

And so the temptation will certainly be to make mistakes.

in the other direction, which is to grant the order when perhaps it shouldn't have been.

Florida's, I think the second or third most populous state in the entire country.

And so it would make sense that we would see more applications in Florida than any other state.

And so I don't think there's anything particularly remarkable about this data.

Lots of people live in the state, so we're going to see higher numbers of requests for protective orders, and judges are going to be under immense pressure to grant them, so we're going to see high grant rates.

It all works out exactly the way you would expect.

KATKO: John, your take?

TURES: Yeah, you know, Florida is number two in the country in terms of gun sales, just behind Texas.

Number three is California, and both Florida and California have red flag laws.

Now I know they're also very populous states, but what it means is you can get a gun as long as you're not someone who's done something to trigger an ERPO.

And not only that, but the Supreme Court ruled 8 to 1 in US v Rahimi that there are Limits to such gun rights.

And if you look at Raimi's rap sheet, you're like, that person shouldn't have a gun.

Many of these mass shootings you see, you'll be like, look at the person's background going, why did that person have access to a gun?

KATKO: Yeah, John, I'm going to stay on that a second.

Some of these red flag laws, and actually, I'm going to go to Clark and this because it's kind of follow up and kind of a pushback a little bit of what you said earlier.

And that is the statistics.

we noted many statistics in my with the previous guest about the number of shootings that were stopped in advance for people that they had documented posted their intentions.

And it was a pretty significant number, so there is some empirical data that this stuff does work.

So do you at least agree that some of these RPO orders in Florida probably stopped shootings from happening?

NEILY: Well, certainly, I mean, if you're granting 15,000 orders, like, you're going to get it right some of the time.

What you don't know is how often you got it wrong.

So how many times did you disarm somebody who was no threat to anybody and infringe on their Second Amendment rights?

That's a question you'll never get the answer to.

But yeah, certainly if you take away everybody's gun, you will at least save one life.

But the important thing is to dial in the policy so that we're making as few mistakes in both directions as possible.

KATKO: John, that's a moment when I follow up on you with it too, and that is the gun rights advocates.. The Second Amendment is pretty clear about possessing guns.

And you know that a Supreme Court case where it's not an unfettered right, but, you know, when you start taking guns away from individuals that have a second amendment right to those guns, how do you find that balance?

Do you think they're getting it right with these red flag laws?

TURES: I think so.

Even if you look at states that, I know Florida and California are very big, but even when you look at states that are comparable size, like Virginia has a red flag law, they have higher guns sales than Georgia, which does not.

So people can get a gun as long as you don't do things that would get people to say, you probably shouldn't have a gun in this situation.

I also want to point out, Florida is number two on Cato Institute's Freedom Index.

And so these strong gun laws are not hurting freedom in Florida, according to Cato Institute.

KATKO: Okay.

We've got a minute left, so let's have some fun.

Let's do a little lightning round here if I can.

Clark will start with you.

The one thing your biggest concern about red flag laws?

NEILY: Well, I think it comes down to the devil is in the details.

The biggest concern I have about Florida is that there's a provision that allows the issue of an order ex parte, which means that the person whose gun is being taken away never had an opportunity to be heard in court.

If I were going to change one thing about Florida's gun law, it would be that one, and you could also make an argument that people should have access to a free lawyer.

The government should have to provide a lawyer to that person so that they can effectively advocate for their gun rights before having the gun taken away.

So those might be two tweaks that I would make to Florida's Rd flag law.

KATKO: John?

Concerned about the red flag laws?

Yes, I would think that, I mean, I've come across stories where when there is such a shooting, local law enforcement like, well, we're not going to enforce this law because we don't think that this is right.

So law enforcement won't back the people who are concerned.

So I think that the law enforcement needs to realize a Republican governor signed this into law, a red legislature passed this in response to Parkland.

You know, let's follow the law.

Let's keep the guns out of the hands of the few people who could be in danger, let everyone else have a gun.

KATKO: Okay, gentlemen, we're out of time, but thank you so much for a great conversation, and I think we're educated quite a few people, so thank you very much.

TURES: Thank you.

NEILY: Thank you.

KATKO: Now it's time for my take.

♪ ♪ You know, the question is whether Florida's red flag laws are the path forward.

I think they are, and here's why.

It was born out of a horrific tragedy at Parkland High School, and Florida legislature, which is a heavily dominated legislature, and a state that's heavily dominated by Republicans now, with very friendly gun laws, still felt compelled to act.

And I think they did that because they don't want to see another Parkland from happening again.

Either do I, and either do any Americans.

But in making sure that we have these red flag laws, we must make sure that the rights of individuals are balanced, and that individuals' right to possess firearms is respected.

Yes, we need to get guns out of the hands of individuals that are going to do harms to himself or others, but there must be due process.

There must be a robust red flag law that protects the rights of the individuals and imbalances that with the rights of the individuals to be safe in their communities.

And I think Florida has endeavored to do that and they've done a pretty good job so far.

There's things they can tweak.

But overall, I think Florida got it right.

That's my take.

That's all for this week.

To send in your comments for the show, visit WCNY.org.

For "Balancing Act" extras and exclusives follow us on social media.. Thank you for joining us, and remember, in the circus that is politics, there's always a "Balancing Act".

I'm John Katko.

We'll see you next time, America.

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