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By Matthew Naum, Staff Writer
Red flag laws, also known as Extreme Risk Protection Orders (“ERPOs”), have gained momentum on both the state and national level as a potential way to prevent public mass shootings since the Marjory Stoneman Douglas High School shooting in February 2018. These laws have been passed by 17 states and the District of Columbia, and have been introduced in five other states, including Pennsylvania. But what exactly do these laws mean and what do they do? [1]
Broadly speaking, red flag laws/ERPOs allow for law enforcement or family members to petition the court to remove firearms from an individual’s possession and prevent them from purchasing firearms, on the basis that the individual in question poses a risk to themselves or others.[2] Depending on each state’s laws, the list of individuals who may petition the court to issue an ERPO varies. Florida, Rhode Island, and Indiana only allow law enforcement to petition the court. Whereas other states, such as New York, additionally allow schoolteachers, administrators, and roommates or significant others to petition the court for an ERPO.[3]
If the threat of harm posed by the individual in question is imminent, judges may issue an emergency ERPO ex parte, without notice to the respondent, which lasts a shorter period of usually two to 21 days.[4] As these are civil proceedings, the standard of proof for ERPOs ranges from probable cause to clear and convincing evidence.[5] The individual subject to the order is then required to surrender any and all firearms to law enforcement or have them confiscated. After this initial period is up, a hearing is held in which the subject of the ERPO may present a defense and challenge the order. If an individual is unsuccessful in convincing the court that they are not a danger to themselves or others, a final order is issued that extends the order for up to one year.[6] Recent legislation signed into law in California allows for final orders to last up to five years.[7]
Proponents of red flag legislation believe that they area an important tool in combating public mass shootings, as firearms can be removed from individuals who may potentially go on to commit shootings but only exhibit dangerous behavior that does not rise to the level of a crime. According to an FBI study of active shooters’ pre-attack behavior, the average shooter displayed four to five observable and concerning behaviors observable to those around the shooter. These observable behaviors were most often related to mental health, problematic interpersonal interactions, and expressions of violent intent.[8] One case study published in 2019 by researchers in the Annals of Internal Medicine examined California’s ERPO law and highlighted twenty-one cases where an ERPO may have prevented mass shootings,[9] however it is virtually impossible to know for sure if a shooting has been prevented. Connecticut and Indiana’s red flag statutes are the longest in effect, enacted in 1999 and 2005 respectively. They present the most data to analyze what sort of effect these types of legislation have. According to a Psychiatric Services 2018 study examining both Connecticut and Indiana, the laws have mostly functioned as a tool for law enforcement to remove firearms from individuals perceived to be suicidal, but the laws were associated with respective drops in the firearm suicide rate of 13.7% and 7.5%.[10]
Though red flag legislation has gained steam nationally, there are those who are wary of the potential for infringing on the right to due process of individuals named in an ERPO. Chapters of the ACLU have opposed red flag legislation proposed in Rhode Island and California. In the case of the proposed Rhode Island legislation, the ACLU expressed concern over the precedent these laws set for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.[11] Additionally, they expressed concern that ERPO orders were made at hearings where the subject of the order would not be appointed counsel and they would be potentially subjected to coerced mental health evaluations.[12] In California, the ACLU said the legislation “poses a significant threat to civil liberties” because orders can be sought before gun owners have an opportunity to contest the requests and those allowed to request orders under the new law may “lack the relationship or skills required to make an appropriate assessment.”[13]
Senators Lindsey Graham and Richard Blumenthal are currently working on bipartisan legislation that would provide federal funding to states that enact red flag legislation.[14] With President Trump throwing his support behind red flag legislation in the aftermath of the El Paso and Dayton shootings and making known he prefers to “take the guns first, go through due process second,”[16] it seems likely the debate over red flag legislation and due process is not going anywhere.
[1] https://www.cbsnews.com/news/what-are-red-flag-laws-and-which-states-have-implemented-them/
[2] Id.
[3] Id.
[4] https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/extreme-risk-protection-orders/
[5] Id.
[6] Id.
[7] https://www.apnews.com/3ca4e1f867f2490c98b042358f8bf3b3
[8] https://www.fbi.gov/file-repository/pre-attack-behaviors-of-active-shooters-in-us-2000-2013.pdf/view
[9] https://annals.org/aim/fullarticle/2748711/extreme-risk-protection-orders-intended-prevent-mass-shootings-case-series
[10] https://ps.psychiatryonline.org/doi/pdf/10.1176/appi.ps.201700250
[11] http://riaclu.org/news/post/aclu-of-rhode-island-raises-red-flags-over-red-flag-gun-legislation/
[12] Id.
[13] https://www.apnews.com/3ca4e1f867f2490c98b042358f8bf3b3
[14] https://www.politico.com/story/2019/08/05/graham-red-flag-bill-gun-violence-1448198
[15] https://thehill.com/homenews/administration/376097-trump-take-the-guns-first-go-through-due-process-second
