Doug Stanglin USA TODAY
Published 1:32 PM EDT May 1, 2019
If someone is suicidal or an imminent threat to others, should a local judge be able to temporarily take away that person’s guns?
Colorado is the 16th state to say “yes,” while another 21 have taken at least some steps toward adopting a so-called red flag law.
Such laws are now on the books in California, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.
Maine and Pennsylvania could be next.
Gun violence is again in the spotlight with two high-profile shootings in the past week, one at a synagogue and one at a college campus. And if history is any guide, shootings often spur interest in gun laws, including red flag bills.
Despite opposition from the National Rifle Association – which says the laws hinder the right to due process – the issue is even getting an airing at the national level from at least one key Republican: Sen. Lindsey Graham, chairman of the Senate Judiciary Committee.
Graham said Sunday on CBS’ “Face the Nation” that he is a big supporter of protective order laws – but at the local, not federal level – and is pushing in his committee for a national grant program to “incentivize” states to pass them.
More: How gun laws in a dozen countries compare with New Zealand’s new ban on semiautomatic weapons
These laws, he says, would “take guns out of the hands of people that are showing disturbing signs or dangerous signs.”
Graham, of South Carolina, says he believes a red flag law “would have made a big difference” if one had been in place before the 2018 Parkland high school massacre that left 17 people dead.
A school safety commission chartered by President Donald Trump in the wake of Parkland endorsed such laws last year as “a temporary way to keep those who threaten society from possessing or purchasing firearms.” But the commission also said their impact on gun violence, beyond curbing suicide, is unclear.
For his part, Trump has called on states to adopt extreme risk protection orders but says they should be “carefully tailored” to ensure the due process rights of law-abiding citizens are protected.
The laws vary from state to state and have different names but have one goal: Take action in the face of imminent danger.
In essence, they allow a judge – at the request of law enforcement officers, or in some states, a relative – to temporarily prohibit a person from having or buying firearms if the individual poses a significant danger to others or themselves.
The court can order the weapons to be seized immediately pending a second hearing. In most cases, if the judge finds convincing evidence to support the initial concerns, the order can stay in effect up to a year.
Over 1,700 gun seizure orders in ’18
In 2018, more than 1,700 orders allowing guns to be seized for weeks, months or up to a year were issued by the courts under red flag laws, according to data compiled by the Associated Press. The figure could be higher, since California was not included in the data.
In Maryland, which passed its law in October, courts issued 302 extreme risk protective orders in the first three months. Four of the gun owners posed “significant threats” to schools, Montgomery County Sheriff Darren M. Popkin told state lawmakers at a hearing in January.
“The majority of these cases we have seen somewhat of a crisis situation, some sort of acute mental illness,” Popkin said. These orders, he said, “are saving lives.”
In Indiana, only law enforcement – not a family member or spouse – can petition the state to confiscate weapons. Police can also seize firearms on the spot, although a court hearing must be held soon after.
Other states permit a family member or relative to intervene. In Oregon, any person living in the household of a person they are concerned about can request an order. If a judge agrees, all weapons and concealed handgun permits must be surrendered within 24 hours after the order.
More: What’s in the gun control bills that House Democrats will bring to a vote this week
Maryland allows a a physician, mental health provider or even someone dating the gun owner among valid petitioners.
Then-California governor Jerry Brown, however, vetoed an effort by the Legislature to strengthen its bill to allow high school and college employees, co-workers and mental health professionals to file such petitions, calling the effort premature.
In making a decision, a judge may weigh such evidence as a history of suicidal threats or attempts, threats of violence, instances of domestic abuse or cruelty to animals. In most cases, both sides can present their arguments at a full hearing within 10 days, when a judge could extend the order for up to one year.
With Colorado in the fold, Maine and Pennsylvania – and perhaps Hawaii – seem likely to join the group. Maine’s bill actually passed last year but was vetoed by then-governor Paul LePage.
Shootings spur interest in laws
Gun tragedies have pushed states to sign on to these laws.
Connecticut passed the first red flag laws in 1999 after a fatal shooting at Connecticut Lottery headquarters in Newington. The gunman, lottery employee Matt Beck, killed four of his supervisors and himself with a 9mm Glock pistol with a 19-round magazine.
Beck, who had a history of attempted suicide, had filed a work-related grievance over a salary dispute and failure to win a promotion.
The 35-year-old had been under a doctor’s care and on prescribed medications for his depression since January 1997, his father said, according to the Hartford Courant.
The Indiana law, passed in 2005, was also born of tragedy. A 33-year-old man, carrying a semi-automatic rifle and two handguns, opened fire on homes and vehicles in a south-side Indianapolis neighborhood, after killing his mother. Police officer Jake Laird was shot and killed in the melee.
Afterward, officials found that police had once put Kenneth Anderson under “immediate attention” at a hospital and seized a cache of weapons and ammunition, the Indianapolis Star reported. But, without a law, police had to return the weapons – five months before the fatal shooting.
Following the grimly familiar pattern, California passed its law in 2014 after 22-year-old Elliot Rodger, driving his BMW down a street in Isla Vista, California, went on a shooting and stabbing spree that left seven people dead, including himself, and 13 wounded.
Rodger ran down skateboarders and bikers, fired through shop windows and killed two women on a sorority house lawn. His body was found amid three semi-automatic handguns and more than 400 rounds of ammunition.
More: A toddler found a handgun and fatally shot himself. His case is one of at least 73 accidental child deaths involving a gun in 2018
While tragic, the killing spree was not altogether unexpected. The night before the rampage, he posted a “Day of Retribution” video saying he had “no choice but to exact revenge on the society” that had “denied” him sex and love.
There were “very clear warnings” from family and doctors that he was dangerous, said Allison Anderman, senior counsel at the Giffords Law Center to Prevent Gun Violence, but little anyone – including police – could do legally.
The outcry prompted California to pass its red flag laws, and other states followed suit.
After Isla Vista, Anderman said, “these bills have been very popular and adopted at record speeds.”
A question of due process
The restrictions are not popular with the NRA, which argues such laws unnecessarily hamper the right to due process. The NRA has opposed them in Rhode Island, Utah and Maryland. Virginia’s Republican-led House rejected all proposed red flag laws in January, even one offered by Trump’s school safety committee.
“The biggest issue with all these bills is due process,” Dan Reid, western director of the National Rifle Association, said recently, according to the Las Vegas Review-Journal. “A person is going to lose their rights based on a third-party allegation. They’ve never been convicted of a crime. They’ve never been adjudicated mentally ill. That’s not how our system of justice should work.”
Regarding Rhode Island, the NRA’s Institute for Legislative Action argues on its website that the law would “remove judicial discretion” and would lead to restraining orders in cases where there is no finding of guilt. The NRA also said existing federal and state laws were in place to ensure people convicted of abuse do not have access to firearms.
More: Donald Trump tells NRA to ‘get its act together’ after power struggle erupts at convention
More: What’s next for the NRA? Subpoenas, investigations and leadership turmoil
The ILA also contends that such laws can be abused in cases where the police lack sufficient evidence for an arrest “and simply wish to deprive an individual of the right to bear arms.”
While the NRA continues to oppose such laws, there are signs that it might want to at least appear more flexible. Last year, the NRA’s top lobbyist, Chris Cox, called on Congress to support funding for states to adopt “risk protection orders” that would allow courts to temporarily remove firearms when a person threatens violence to themselves or others.
“To be effective, there should be strong due process protection, and requirements that the person gets treatment,” he said. “These can be done right now.”
On the other hand, last summer the NRA offered what appeared to be blanket opposition to gun violence restraining orders, saying on its website that they diminish due process and have “obvious potential for abuse.”
The NRA did not respond to repeated efforts to clarify its current position.
Lowering suicide rates
The latest burst of interest in the legislation followed the 2018 shootings at Marjorie Stoneman Douglas High School in Parkland, Florida, that left 17 students and staff dead, and prompted the Florida Legislature to adopt a red flag law.
The accused gunman, Nikolas Cruz, had a history of discipline problems at the school, as well as issues of depression and self-mutilation. Florida’s law passed within a month of the tragedy.
While mass shootings seem to spur the public to back these laws, the biggest impact of red flag laws seems to be in lowering suicide rates.
“Although these laws tended to be enacted after mass shooting events, in practice, they tend to be enforced primarily for suicide prevention,” said Aaron Kivisto, a clinical psychologist with the University of Indianapolis who studies gun violence prevention.
His research found that Indiana saw a 7.5% decrease in firearm suicides in the 10 years after a red flag law was adopted, while the rate of non-firearms suicides remained unchanged. In some years, he said, 80% of all gun seizures have been because of concern for suicide rather than homicide or domestic violence reasons.
More: ‘We just want the guns back’: New Zealand announces immediate ban of assault rifles
A study of Connecticut’s legislation found the law resulted in one averted suicide for every 10–11 cases. The law, which was not rigorously enforced initially, led to a 13% decrease from 2007 to 2015 after stronger enforcement in the wake of a mass shooting at Virginia Teach.
Suicide appears to be the driving force behind the latest attempt to pass a red flag law in Maine where residents die from a self-inflicted gunshot wound every three days, according to the Maine Suicide Prevention Program.
State Sen. Rebecca Millet, who introduced a bill for a red flag law in March, noted that half of all youth suicides in Maine are by firearms, the Portland Press Herald reported.
In a textbook case of how the law can be applied, the Snohomish County Sheriff’s Office in Washington state recovered 12 guns from the home of a 20-year-old Monroe man in December after officers were granted an extreme risk protection order.
Authorities were tipped off to Dakota Reed’s activities after police say he posted a stream of anti-Semitic memes, violent posts and mass shooting plans on Facebook.
Court documents charge that Reed made a video in December, the month he was arrested, introducing himself as Active Shooter 327.
He was charged in April with with two felony counts of threats to bomb or injure property.
Little movement on a federal law
On the federal level, there is much talk but little action about passing a nationwide red flag law.
Graham, as chairman of the Judiciary Committee, said he thinks such laws at the local level “would have made a big difference” in the Parkland case, but he treads carefully on the politically explosive issue of confiscating guns.
“There are a lot of people (who) may be worried, ‘Is the government going to come take your guns?’ And the answer is, ‘No,’ ” Graham said recently in opening remarks at a hearing before his committee on red flag laws.
“I think passing a federal law is probably beyond what the market will bear,” he said. “But creating an incentive at the federal level for states who want to go down this road … I think that’s the best way, at least initially to solve this problem.”
That’s how Colorado Gov. Jared Polis framed the issue after signing the act into law in his state.
“This law will not prevent every shooting, but it can be used in a targeted way,” he said. “Today we may be saving the life of your nephew, your niece, your grandchild.”
More: Gun control: House passes bill extending time for background checks
Not everyone agrees. In Colorado, about half the counties passed resolutions declaring themselves “Second Amendment sanctuary counties,” in which they discourage their judges and sheriffs from issuing and carrying out orders to seize weapons, the Denver Post reports.
In Maine in 2018, crowds of protesters – some wearing “gun rights are civil rights” labels – argued that seizing weapons infringed on citizens’ rights to bear arms and to due process, according to the Press Herald.
Proponents of the bills have tried to stress the common-sense approach to the issue, while also addressing worries that the law could be manipulated by vindictive individuals, like spurned spouses.
A proposed Pennsylvania bill is expected to include a provision calling for criminal penalties for anyone who files a false petition to have a gun confiscated.
For opponents and proponents, the law strikes an emotional chord, whether decrying the need to curb suicide and domestic violence or preserving the right to have weapons.
In Maryland, where the law went into effect in October, an early test case went horribly wrong.
When officers turned up at at the home of Gary Willis at 5 a.m., he opened the door with a gun in his hand, according to the Capital Gazette. He set it by the door and stepped outside.
When the officers began serving him with an emergency protective order, however, he “became irate,” according to the police account, and grabbed the weapon. During a struggle with officers, the gun went off but did not strike anyone. A second officer shot and killed Willis.
“If you look at this morning’s outcome, it’s tough for us to say, ‘Well, what did we prevent?’” said Anne Arundel county police chief Chief Timothy Altomare, according to the Gazette. “Because we don’t know what we prevented or could’ve prevented. What would’ve happened if we didn’t go there at 5 a.m.?”
- Red alarm
- Islamic State faces uphill 'branding war' in Afghanistan, Pakistan
- Delay Of Law Implementation Prompts Ghost Offices
- Skepticism at Obama plea for 'soul searching' on guns
- No red flags yet
- Islamic State forces 180,000 to flee in Iraq
- Hollywood star wants US law against labor trafficking
- Red River irrigation needs upgrade
- More state-owned companies to go public this year
- Islamic State says beheads U.S. journalist, holds another