Democratic and Republican senators may find rare consensus on gun legislation by supporting the expansion of “red flag” laws. These laws allow courts to temporarily take away a gun from someone who shows signs of posing a threat.
In Texas, more than 250 conservatives who identify as gun enthusiasts wrote a letter to Sen. John Cornyn, R-Texas, in support of restrictions, including red flag laws.
“We believe in the Second Amendment. Like many, we are struggling for good answers to our current problem of gun violence in America,” they wrote in a letter published as a full page ad in the Dallas Morning News.
Cornyn is one of the senators negotiating with Democrats to provide federal grants to encourage states to pass red flag laws. Here’s how they work.
What are red flag gun laws?
These laws are meant to remove weapons from dangerous people before a crime or tragedy occurs — hence the phrase “red flag.”
The process allows people to petition a civil court to temporarily remove that person’s firearms. Red flag laws are sometimes called extreme risk protection orders (shorthanded as ERPOs); gun violence restraining orders; or state crisis intervention orders.
The mass shooter at Marjory Stoneman Douglas High School in Parkland, Florida, for example, was the subject of two tips to the FBI about his plans as well as multiple 911 calls about his behavior for years before the shooting.
Each state’s law sets rules for who can start the petition process. Some states only allow law enforcement to request the orders. Other states allow family members or close contacts, such as coworkers or teachers, to file a petition. Most petitions are filed by law enforcement, and they are usually granted by the courts.
The petitions generally ask for some sort of documentation. For example, petitioners in Maryland are asked to write on a form what behaviors lead them to believe the person poses an immediate danger by possessing a firearm. It also asks the petitioner to list the number, type and location of the individual’s guns and the individual’s past acts or threats of violence, substance abuse and criminal history.
Once the court receives a petition, judges must follow their state law that explains what criteria a judge must or could consider.
In California, judges must consider whether the person has made threats, acted violently within the past six months or had a pattern of threats or violence over the past year. They must consider whether the person has violated a domestic violence emergency protective order or was convicted of a crime that would keep from legally keeping a firearm. A judge can consider evidence of alcohol or substance abuse.
If the threat of harm is imminent, courts can issue an emergency order without a hearing ordering the removal of a person’s guns. But those orders only last from a few days to three weeks. Before issuing a final order, a court holds a hearing where the person can testify on their own behalf or bring a lawyer.
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In most states, final orders can last up to a year, though they can be extended. Once the order is issued, the individual must surrender their firearms. For example, Colorado’s law says that individuals can either sell their firearms to a federally licensed dealer or arrange for storage by a law enforcement agency. If the individual owns an antique firearm, it can be transferred to an eligible relative who doesn’t live with them.
In Broward County, Chief Judge Jack Tuter said around half of the individuals agree to the order because they don’t own a gun, and many others agree to turn over their firearm.
“In a very small or insignificant portion of the cases, the person actually fights the risk protection order and comes to court, and sometimes they win and sometimes lose,” Tuter said.
Critics of red flag laws say they lack due process, but that’s not accurate. These are civil proceedings where individuals can testify and face no risk of incarceration, Palm Beach State Attorney Dave Aronberg said. Prosecutors are only involved if someone violates an order, which is rare, Aronberg said.
It is possible for someone who is undergoing the red flag law proceeding to separately face a criminal charge. But in many situations, there is no parallel criminal case.
Courts in Connecticut, Indiana, and Florida ruled that the laws do not violate the process rights of respondents or are constitutional.
Which states have red flag gun laws?
Connecticut was the first state to pass a red flag law in 1999. It followed a mass shooting by an accountant who worked for the state lottery. In the month leading up to the attack, the shooter showed clear signs that he was troubled.
Many other states have passed similar laws, including seven passed by Republican governors. States with red flag laws today include California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington as well as the District of Columbia.
Florida passed its red flag law in 2018 after the Parkland school shooting. Since then, Florida courts have issued about 8,000 final orders, according to data compiled by the Office of the State Court Administrator.
What type of red flag law legislation is the Senate considering?
Bills in Congress to create a national red flag law have stalled. Senators from both parties struck a deal Sunday that would encourage states to implement red flag laws that allow authorities to keep guns from people who are determined by a judge to be a potential threat to themselves or others.
Twenty senators — 10 Democrats and 10 Republicans — signed a statement announcing the framework deal.
“Encouraging states to have some kind of red flag laws could make sense as long as there’s adequate due process,” said Pat Toomey, R-Pa., on June 5, adding that senators could also address school safety and mental health. “So, there are things we could do that would be constructive, that are consistent with Republican values, and I’m hoping we’ll get there.”
But some Republicans have opposed the idea of any type of federal red flag incentive, saying that it should be left up to the states.
Sen. Chris Murphy, D-Conn., recently described the effort to pass the legislation as “a test of democracy. It’s a test of the federal government as to whether we can deliver at a moment of just fierce anxiety amongst the American public.”
Do red flag laws work?
It’s challenging for researchers to determine whether mass shootings are prevented by red flag laws.
The Violence Prevention Research Program at University of California Davis studied 200 cases in California between 2016 and 2018. An in-depth analysis of 21 mass shooting threats found that none of them occurred after a red flag law was used.
“While it is impossible to know what would have happened without the intervening (extreme risk protection orders), these are promising results,” researchers wrote.
There is stronger evidence that red flag laws prevent suicides.
Studies of laws in Connecticut and Indiana found that one suicide is prevented for every 10 to 20 orders issued. But findings of population-level studies are mixed, the Violence Prevention Research Program found.
There are limits to the powers of red flag laws. Most notably, they don’t necessarily lead to mental health treatment. Tuter said he can order someone to have a mental health evaluation, but if that process turns up a diagnosis, the law does not allow a judge to order treatment. And even those who want treatment may lack access to mental health care.
“The state and counties need to wake up and start funding mental health programs,” Tuter said.
Violence prevention experts say red flag laws are one of many strategies that could reduce access to firearms for individuals who pose a threat.
Extreme risk protection orders “are one important law in that network,” said Veronica Pear, an assistant professor in the UC Davis program. “But there are other laws that are supported by evidence as well, such as prohibiting the purchase and possession of firearms after a violent misdemeanor conviction, waiting periods, and firearm licensing laws.”
Experts on red flag laws warn they are only as good as their implementation. Illinois state Rep. Denyse Stoneback said the Firearms Restraining Order Act, passed in 2018, hasn’t been used much in her state, which she attributed to a lack of knowledge from both officers and the public. To address that, Stoneback sponsored a bill to support a $1 million education campaign for police. It became law but did not go into effect until June 1, so its impact isn’t clear.
“It’s another tool in the toolbox to reduce violence when someone’s exhibiting dangerous behavior,” Stonebeck said. “But it can only really be effective if it’s utilized.”
Staff writer Hana Stepnick contributed to this article.