Five myths about red-flag laws

Robyn Thomas is executive director of the Giffords Law Center to Prevent Gun Violence.

Extreme risk protection laws, also known as red-flag laws, allow law enforcement - and in some states, family, household members and other community members - to ask a court to temporarily prevent people from possessing guns if they pose a risk to themselves or others. Nineteen states and the District have versions of these laws, including Indiana, where a 19-year-old shooter killed eight people and himself at a FedEx facility this month. Authorities have said that police previously confiscated a firearm from his home after his mother called 911, fearing he was a suicide risk, and that he was taken to a mental health facility at that time. Yet he was later able to legally purchase the two assault weapons used in this violent act. The incident has raised questions about these laws and whether they can prevent tragedies. The fact is, they do work, despite some misperceptions surrounding them.

Myth No. 1: Red-flag laws don’t save lives.

Elected representatives have claimed that there is “no evidence that these laws have reduced the frequency of mass public shootings,” and gun-lobby-supported researchers have argued that “these laws apparently do not save lives.”

Most states have only recently passed red-flag laws, and scholars are still evaluating their impacts. But early research already shows that they appear to stop at least one kind of gun violence: suicides. Connecticut and Indiana — the two states with the longest-standing red-flag laws — saw 14 percent and 7.5 percent reductions in firearm suicide rates, respectively, after implementing their measures. In fact, scholars estimate that for every 10 to 20 orders granted under these laws, one life is saved through an averted suicide.

Extreme risk laws also show promise for preventing mass shootings. Researchers identified 21 cases where protection orders in California were used to remove firearms from individuals threatening mass shootings between 2016 and 2019. At the time the researchers published their study, none of the threatened shootings had occurred.

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So how was the Indiana shooter able to get his guns? Investigators are still looking into it, but we know that law enforcement chose not to pursue an order under the state’s red-flag law, even though that may have been an option.

Myth No. 2: Red-flag laws infringe on constitutional rights.

Critics of red-flag laws have argued that these policies “skirt or even trample due process,” as former senator Jim DeMint (R-S.C.) put it, and that they represent a move to “take the guns first, and go through due process second,” in the words of a Washington Times op-ed.

In fact, these laws allow temporary measures to stop people from possessing guns when there is an imminent threat of violence. These orders, approved by a judge, are designed to last only for the period in which there is increased risk of violence - generally between six months and a year. Additionally, states have specific standards in place to ensure that firearms are returned to their owners once the order has expired.

It’s true that many states allow courts to order firearms to be taken away temporarily in an emergency before a full hearing is conducted. Policymakers and courts have recognized for decades that there are situations in which the risk of violence is so significant and immediate that steps must be taken to remove firearm access, and similar processes have withstood constitutional scrutiny.

But before a final order is granted, a person can contest it in court. He or she has the opportunity to respond to any claims or evidence presented by the petitioner, and to present competing evidence.

Myth No. 3: Red-flag laws can easily be abused.

In a Facebook post, the National Association for Gun Rights claimed that firearm removals are based on “unsubstantiated accusations from disgruntled family members, neighbors, co-workers, and/or current or ex-romantic partners.” Others, such as a gun shop owner in Iowa, have similarly argued that “vengeful ex-spouses, a distant relative with a grudge, or even an angry co-worker” could obtain one of these orders “with zero evidence,” or use such an order for retaliation.

But red-flag laws are carefully crafted to limit petitioners to those who have good information about the possible risk of someone harming themselves or others. Many state laws also include criminal penalties for lying when making allegations in these requests to the courts - not to mention that people who lie could be charged with perjury.

Ultimately, whether to seize a person’s firearm or prevent future purchases is decided by a judge who reviews all the evidence provided by both the petitioner and the respondent. Highly publicized cases show that judges have quickly dismissed petitions filed by people who sought these orders but did not have standing, such as when a Colorado judge last year dismissed a case filed by an inmate against the county sheriff.

Myth No. 4: Red-flag laws are controversial.

When red-flag laws are discussed in the media and by professional organizations, they are often framed as “controversial.” The Associated Press used the word in an article about the aftermath of the school shooting in Parkland, Fla., for instance, and so did the CBS affiliate in Denver when Colorado enacted its law in 2019.

It’s true that politicians in some states clash over these measures, but extreme risk laws enjoy broad bipartisan backing nationally. An overwhelming — and in recent years, increasingly large — majority of Americans support them. A 2019 survey by researchers at Johns Hopkins University found that 76 percent of Americans support a policy that would authorize law enforcement to temporarily remove guns from people who pose an immediate threat to themselves or others. Four in five Americans support a policy that would allow family members to ask a court to temporarily remove guns from a relative in this same circumstance.

This support cuts across gun ownership status and political party affiliation, with at least 66 percent of gun owners and 76 percent of Republicans in favor. In fact, red-flag laws have emerged as one of the only potential areas for bipartisan cooperation on gun safety in Congress. While Republicans have generally opposed strengthening federal gun laws, GOP senators such as Lindsey Graham (S.C.) and Marco Rubio (Fla.) have introduced bipartisan bills that would help expand red-flag laws across the country.

Myth No. 5: Red-flag laws are redundant.

Some have claimed that red-flag laws are unnecessary and that if people are a danger to themselves or others, we already have “a better alternative” to prevent them from getting firearms, as gun rights advocate John Lott Jr. has argued — including mental health commitment laws, as the New Mexico Sheriffs’ Association has suggested.

But red-flag laws fill an important gap. Other statutes may prohibit gun possession by individuals who have been adjudicated mentally ill or convicted of certain crimes, or are subject to domestic-violence protection orders, but they typically apply only after a violent act has been committed. Red-flag laws create a process to intervene ahead of time - they’re designed to reduce gun violence risks for the named individual and the public generally.

Moreover, while mental health evaluation and treatment may play an important role in helping to reduce risk for some people who may harm themselves or others, the vast majority of gun violence is not connected to mental illness.

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