Red flag laws might be the one gun measure Democrats, Republicans agree on. Do they work?

·8 min read
Red flag laws might be the one gun measure Democrats, Republicans agree on. Do they work?

WASHINGTON - Mass shootings this month in Buffalo and, now, Uvalde, Texas, have some lawmakers scrambling to find ways of passing a law that would prevent similar tragedies in the future.

Assault rifle bans, significantly expanded background checks and raising the minimum age from 18 to purchase guns are not expected to pass Congress when Republicans hold 50 Senate seats and can block gun control bills.

But GOP Leader Mitch McConnell, R-Ky., has signalled he might back more modest proposals, including one that appears to be attracting some bipartisan support: extreme risk protection orders.

Known as "red flag" laws, the measures allow police or family members to get a court order that temporarily confiscates firearms from a person who may present a danger to others or themselves. The House is expected to vote on – and pass – a red flag bill in the next two weeks, leaving enactment up to the Senate.

People in the Uvalde community come together  at a memorial at Robb Elementary School Wednesday, May 25, 2022.
People in the Uvalde community come together at a memorial at Robb Elementary School Wednesday, May 25, 2022.

Nineteen states and the District of Columbia already have adopted such laws, and the federal legislation being discussed would provide money and incentives for other states to follow suit.

Not every state law is exactly the same, but here's how they would generally work:

How do 'red flag' laws work?

In most of the states that have red flag laws, an immediate family member or law enforcement officer who has hard reason to believe someone poses an imminent threat to themselves or others (menacing behavior or a harrowing social media post, for example) can petition a judge for a temporary order removing the person's weapons.

The vast majority of cases involve potential suicide attempts, but the orders can also be used to prevent harm to others, said David Pucino, deputy chief counsel at Giffords Law Center, a gun control organization led by former Arizona Democratic Congresswoman Gabby Giffords, herself a gunshot victim.

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Mass shooters typically leave a trail of evidence accumulated over time so there are usually warning signs – or "red flags" – on which to act. But those orders can be obtained within hours if the harm appears imminent, Pucino said.

Some states require family members to first contact law enforcement before going directly to a court. But even in those cases, the police would not have to recommend the order for a judge to issue one.

Once the order has been issued and the weapons confiscated, a hearing to determine whether the individual should have their guns returned is usually held within weeks, Pucino said. If upheld, the order is in place for up to a year but can be extended if the court deems the threat remains.

If an order is approved, a person whose guns have been removed also can petition the court to revoke the order.

Red flag laws are targeted towards removal of weapons, not the involuntary commitment of an individual based on their mental health status. But opponents of the measure say it undermines due process because the gun owner usually isn't permitted to present their case until after the weapons have been confiscated.

“It turns due process on its head,” Val Finnell, Pennsylvania director for Gun Owners of America, told Pew's Stateline last year. “Petitioners don’t have to demonstrate that you committed a crime. They don’t even have to demonstrate that there’s any chance you’ll commit a crime. They just have to demonstrate that you’re subjectively a danger to someone. That’s all it takes to be stripped of your constitutional rights.”

Which states have adopted these laws?

Most of the states that have adopted red flag laws are clustered in the Northeast or the West Coast, regions largely governed by Democrats, who generally support gun control.

But there are purple states, such as Virginia and Nevada. And red states, notably Florida and Indiana.

Indiana, along with Connecticut, was one of the first states to implement such a provision. And the Sunshine State adopted its red flag law shortly after a gunman killed 14 students and three staff members at Marjory Stoneman Douglas High in Parkland, Florida, on Valentine's Day, 2018.

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And they've been widely used. Florida’s red-flag law was invoked more than 2,400 times in the first year and a half after it went into effect in mid-2018. Judges overwhelmingly approved the requests, according to court filings.

While most states allow only immediate family and law enforcement to file the petition in court, some also offer the option to medical professionals, school officials, coworkers and current or former partners, according to Pew. 

Texas does not have a red flag law in place but Pucino said it's too early in the investigation to say whether the Uvalde shooting could have been prevented if one had been on the books.

Still, Pucino thinks it's a vital tool to have at hand.

"It allows loved ones to recognize that a person is going through a crisis, to take the gun out of that person's hands, to protect them, to use the court system to make sure that they don't have that extremely dangerous means of harming themselves," he said.

Are they effective at stopping gun threats?

The record on the laws' success is mixed.

Pucino said the laws in most states have not been in place long enough to draw a sweeping conclusion.

Researchers at the University of California–Davis found no significant reduction in gun violence in San Diego County during the first four years of the state's implementation (2016-19) but also said the study might not have been able to capture the full benefits the law was intended to provide.

Studies in Connecticut and Indiana suggest it has been effective, particularly in preventing suicide.

In Connecticut, researchers who analyzed 762 gun-removal cases from 1999 to 2013 estimated that for every 10 to 20 gun-removal actions, one life was saved. In Indiana, the rate was even better: one life saved for every 10.1 gun-removal actions, or 39 suicides prevented from 2006 to 2013.

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But effectiveness depends on implementation, and there are examples of law enforcement not using the law when the situation appeared to call for it.

In Indiana, for example, an investigation by the Indianapolis Star found that police and prosecutors failed to file in court more than 100 red flag cases that they should have. 

At least 14 people were killed and eight injured in shootings that may have been prevented if not for gaps in the law and authorities' reluctance to use its full power, the newspaper's investigation found. The probe uncovered how failures in executing Indiana's red flag law played a critical role in allowing the worst shooting in Indianapolis history, in which eight people were killed at a FedEx center on the city’s southwest side in April 2021.

And in Buffalo, the 18-year-old suspect in last month's mass shooting, Payton Gendron was referred for a mental health evaluation last year after making a threat that was reviewed by state authorities. Gov. Kathy Hochul on Monday said she is investigating whether the red flag law had any connection to the Buffalo shooting suspect.

Missouri GOP Sen. Roy Blunt said he's not sure whether more red flag laws will make a difference,

"New York has maybe the strongest red flag law, and it clearly didn't stop what happened in Buffalo," he told Capitol Hill reporters this week. "So I don't know that there's any one solution here."

Will Congress pass a 'red flag' bill this time?

Red flag bills have been introduced in the past but never approved.

In the Senate, Republicans Marco Rubio and Rick Scott of Florida have teamed up with Democrat Jack Reed of Rhode Island and Independent Angus King of Maine to sponsor the Extreme Risk Protection Order and Violence Prevention Act, which would dedicate U.S. Department of Justice funds to incentivize states to adopt laws similar to Florida’s “risk protection orders.”

Their bill would set up a federal grant program to help states implement their own red flag laws. The money would be allotted as long as the state:

  • Designates a law enforcement officer or family member as the petitioners for such an order.

  • Requires the court find "clear and convincing evidence" that the individual poses a threat to themselves or others by owning or buying a gun.

  • Limits the duration of the order to one year but permits a renewal "upon a showing of clear and convincing evidence it remains warranted."

  • Ensures the respondent has the right to request a hearing to vacate an order or renewal.

  • Mandates "clear processes and instructions" for the surrender of a respondent’s firearms.

A similar bill has been introduced in the House and was endorsed by the Judiciary Committee in October. It's sponsored by Georgia Democrat Lucy McBath, whose 17-year-old son, Jordan, was killed by a gunman nearly a decade ago.

House Majority Leader Steny Hoyer, D-Md., tweeted Wednesday that the chamber will vote on McBath's bill in early June.

“Far too many parents know exactly that pain," McBath said last year. "With this bill... we act to help those in crisis. We act to empower law enforcement. We act to prevent the vigils for the loved ones we’ve lost.”

This article originally appeared on USA TODAY: Congress looks at allowing removal of guns from those deemed harmful

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