“Red Flag” Laws Allow Guns to be Taken from “Dangerous” People
Editor’s note: This story was originally published on March 23, 2018. It has been updated.
In one weekend, 31 people were killed in separate mass shootings in El Paso, Texas, and Dayton, Ohio. As Ohio Gov. Mike DeWine addressed a crowd at a vigil Sunday evening, a deafening chant erupted: “Do something!”
In the days that followed, DeWine came out with a suite of gun control proposals, which included a version of a “red flag” law.
Such laws gained traction across the country in the aftermath of the shooting at a high school in Parkland, Florida last year. Also known as extreme risk protection orders, the laws allow authorities to temporarily take away guns from individuals who are deemed dangerous by a judge.
Before Parkland, five states had “red flag” laws in place. Now, 17 states and the District of Columbia have some version of them, and a bipartisan proposal in the Senate would encourage more states to adopt the laws by offering federal grants. After the attacks in Texas and Ohio, President Donald Trump also expressed his support for such legislation. “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that if they do, those firearms can be taken through rapid due process,” he said on Monday.
How do the laws work?
Risk protection orders, which in general, allow law enforcement, and in some cases family members, to petition a judge to temporarily remove guns from anyone the judge determines poses a danger to themselves or others. Judges can issue a temporary or emergency order to intervene in moments of an immediate crisis or threat, or a longer-term order for individuals deemed to present an ongoing risk.
In ruling on risk protection orders, judges are asked to consider evidence of threats, violent behavior, mental health issues, a conviction for domestic violence and other factors. Emergency orders can last for two or three weeks. To remove guns for a longer period — generally up to a year — the court has to set a hearing, offering the person an opportunity to argue their case.
“In the Parkland shooting, we have a very poignant example of how these laws could have worked,” said Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence. “The shooter had been reported to the police numerous times, because people were concerned about his behavior. But the police were powerless to do much about it unless they could get him involuntarily admitted to a mental institution.”
Supporters of risk protection orders say they serve a critical function, helping to remove firearms from the hands of people who may pose a threat but are not legally prohibited to buy guns.
Federal law already prevents convicted felons, fugitives, or anyone who has been involuntarily committed to a mental institution from buying or possessing a gun. But as researchers who study the intersection of mental health and violence point out, only a small minority of those who suffer from a mental illness go on to become violent toward others.
“I get called upon to do a lot of dangerousness evaluations for people who are either a danger to themselves or a danger to somebody else,” said Dr. Amy Barnhorst, a psychiatrist at the University of California at Davis. “Often times, those people don’t meet strict criteria to be held in a psychiatric hospital and if they don’t get committed to the hospital, they also retain their right to own firearms.”
Barnhorst, who along with her colleague Dr. Garen Wintemute, helped craft California’s version of the law, says such efforts target gun owners who may be angry, threatening or acting erratically. For example, someone who makes threats to carry out a school shooting, or someone who lost a job and threatens to shoot up their workplace.
“There are lot of dangerous people out there who want to do hurtful things that are not mentally ill.”
Supporters say these laws — sometimes referred to as gun violence restraining orders — carry other benefits as well. They don’t create a criminal record; they are temporary; they offer due process; they don’t stigmatize mental illness; and they include penalties for false reports. Critics, however, call them unconstitutional and argue that they fail to offer enough due process.
“We think it’s an unconstitutional notion that your rights can be suspended three days or 21 days based on [a hearing] in which you’re not allowed to participate or make your views known,” said Michael Hammond, legislative counsel for Gun Owners of America, a gun rights organization. He said that very few people have the money and sophistication to challenge such orders in court.
What impact have they had?
Many of the initial states that adopted such laws did so in the aftermath of a violent shooting — with Connecticut becoming the first to adopt one in 1999. Indiana followed in 2005, after the killing of a police officer. California passed one after the deadly 2014 Isla Vista rampage, in which six people were killed. Florida’s came after the Parkland shooting.
Most of these laws are too recent to assess the impact, but a Duke University study of Connecticut’s law showed that in 32 percent of cases, risk of harm to others was listed as a concern, and in 61 percent, the concern was of self-harm or suicide. The study found that one potential effect of such legislation could be the reduction of gun-related suicides, which account for two-thirds of all firearm-related deaths in the U.S., according to the Centers for Disease Control and Prevention. Using Connecticut’s gun removal data, and fatality rates for different suicide methods, the study estimated that for every 10 to 20 gun seizures, one suicide is averted.
“This is a law that’s particularly tailored to suicide prevention, because we know there are lots of people who are at risk for suicide and would be legally eligible to buy a gun,” said Dr. Jeffrey Swanson, lead author of the Duke study. “We don’t know whether it saved lives in terms of preventing gun-related homicides or mass shootings,” he said. “That’s a much more difficult question to answer.”
Wintemute, the director of UC Davis’s Violence Prevention Research Program, will be leading a study that looks at how California’s law is being used. For now, he points to what he calls compelling anecdotal evidence recently released by the San Diego city attorney’s office in a summary of individuals who had their firearms seized. One case involved a 38-year-old man who threatened to kill himself, his wife and their young child if she left him. In another case, police seized a bayoneted rifle and two illegal high-capacity magazines from a 53-year-old man with mental health issues who damaged a neighbor’s door with a firecracker.
What are the hurdles?
Swanson’s study revealed that it took a long time for the law to catch on and be used widely. It was only used sporadically after its 1999 passage, but picked up speed in 2007, after the Virginia Tech shooting, with an uptick after the Sandy Hook massacre in 2012. He said that in order for such laws to have an impact, “The public has to know about it, the judiciary has to know about it, and the police officers have to know about it.”
The NRA has strongly opposed risk protection legislation in several states in the past. Following the public outcry over the Parkland shooting, the NRA signaled more openness to such measures, but said it would require protections that go beyond existing laws. For example, the group said “the process should require the judge to make a determination of whether the person meets the state standard for involuntary commitment.” It has also said gun owners should be able to argue their case from the very beginning, not after a judge’s initial determination.
In at least two states, Connecticut and Indiana, the laws have faced legal challenges from gun owners who had their weapons confiscated, but courts in both states upheld the seizures.
“As a general matter, such laws can pass judicial review, but it depends on the specific language,” said Jonathan Turley, a constitutional law professor at George Washington University, in an email to FRONTLINE. “The Second Amendment is an individual right, but that is not absolute.” He added, “The courts generally accommodate actions based on a well-articulated fear that an individual is a danger to himself or others.”
Gardiner, of the Brady Campaign, said such laws balance Second Amendment rights and the need for public safety. “Ninety-six people die every day in this country from gunshots … Forty-six kids and teens are shot every day in this country,” she said. “What about their rights to live without fear of being shot in their schools, or churches, or movie theaters, or airports or any place else?”