Red flag laws allow the temporary removal of guns from people considered to be at a high risk of harming themselves or others. Studies indicate red flag laws - or Extreme Risk Protection Order laws - can reduce gun violence to a degree, but it is difficult to find a consensus of opinion on how they should be applied.
Following the tragic mass shootings at the beginning of August in El Paso, Texas, and Dayton, Ohio, there has been an increased focus on red flag laws. Much of the focus on the subject has been fueled by the President endorsing red flag laws - or Extreme Risk Protection Order (ERPO) laws - and urging Congress to back efforts to encourage states to adopt them.
If this scenario seems familiar, it is. President Trump also endorsed red flag laws following the Marjorie Stoneman Douglas High School shooting in Parkland, Florida, last year, but stepped back from the debate due to the complexity of the situation.
Why Red Flag Laws are Complicated
Red flag laws are not only complicated because the subject of gun control is emotive and politically-charged; they are also legally complicated by the Constitution depending on how they are applied. Opponents to the laws claim they violate the First, Second, Fourth, and Nineteenth Amendments because individuals can be disarmed without due process before they break any law.
Therefore, whereas almost everybody is in agreement that federal and state laws preventing “prohibited persons” from possessing guns are a good thing, the prospect of an individual going to court to obtain an Extreme Risk Protection Order against another individual raises concerns about civil liberties, and possible abuse due to discrimination or political motivation.
Nonetheless, seventeen states and the District of Columbia have enacted red flag laws. Each states' laws (PDF) vary on who can petition for an Extreme Risk Protection Order, how long the Order will last, and the standard of proof required to obtain an Order. Furthermore, in some states the Extreme Risk Protection Order also serves as a search warrant, but in other states it doesn't.
To further complicate the situation, four states have passed laws declaring they will not be subject to federal red flag laws (Alaska, Idaho, Kansas, and Wyoming); while, within the states that have passed red flag laws, hundreds of counties and cities have adopted “second amendment sanctuary resolutions” which stipulate they will not enforce the state laws.
Studies Show Limited Effectiveness
Possibly due to the large number of second amendment sanctuaries, states' red flag laws have had limited effectiveness. Proponents of ERPOs are keen to highlight a study published in 2018 by psychiatryonline.com which found a 7.5 percent reduction in firearm-related suicides in Indiana and a 13.7 percent reduction in Connecticut following the Virginia Tech mass shooting in 2007.
What these statistics don't reveal is that guns are used in fewer than 10 percent of suicide attempts; so, although guns account for a higher proportion of suicide fatalities, if an individual is committed to taking their own life, not having access to a gun is not going to stop them. This argument is reinforced by the fact that non-firearm suicide rates in both Indiana and Connecticut increased during the study period.
With regard to preventing homicides and mass shootings, only two of the thousands of ERPOs issued in the past twenty years are regarded as having prevented a “credibly threatened” mass shooting. This low statistic may be attributable to the limited volume of research on the subject or because it is difficult to tell if a measure has been successful if an event doesn't happen.
More research could be done on the effectiveness of red flag laws if it were not for a Congressional Amendment passed in 1996. The Amendment prevents the Centers from Disease Control and Prevention (CDC) from spending money on research that advocates or promotes gun control. It is only recently that the nation's first state-funded firearms research center opened in Sacramento.
Alternatives to Red Flag Laws
If red flag laws can save one innocent life or prevent one mass shooting, then obviously they are worth considering. However, some argue that there are alternatives to red flag laws that could make a more measurable difference to the increase in homicides and mass shootings attributable to possession of a firearm. In March 2018, Time magazine produced a list of proposals that included:
- Stricter controls for gun purchases
- Repeal of right-to-carry laws
- Removal of gag orders on doctors
- Investment in smart gun technology
- Eliminate funding restrictions on research
Like red flag laws, these proposals have both their supporters and their opponents. Many of the proposals were included in the Assault Weapons Ban of 2013 which was introduced after the Sandy Hook Elementary School shooting in December 2012, but the proposals were defeated in Congress - an event described by President Obama as “a pretty shameful day for Washington”.
Other non-legislative alternatives to red flag laws have quietly entered communities across the country. Tip lines and anonymous tip apps have allegedly prevented three mass shootings according to a report on CNN.com, and BBC.com reports that a “renewed awareness” of threatened acts of mass violence has resulted in citizens more frequently using these services to tip off law enforcement.
As legislation continues to be determined, communities can be proactive in ensuring the safety of their citizens by working towards establishing proven programs such as community policing and mental health awareness.