Laws targeting mentally ill make red flag laws unnecessary, experts say

Gun rights advocates say that so-called red flag laws that aim to stop mass shootings aren’t needed because states already have laws that allow mentally ill individuals to be confined against their will and lose the right of firearm ownership for life.

Florida, for example, has what’s known as the Baker Act, under which someone can be hospitalized against their will for a mental health evaluation. Other states like California have similar laws that allow someone to be institutionalized for 72 hours for evaluation.

In California, a person who has been involuntarily committed would be prevented from possessing or purchasing a firearm for five years. In Florida, an involuntarily committed individual could lose the right to purchase firearms after confinement.

Aidan Johnston, director of federal affairs for Gun Owners of America, noted that federal law bans mentally ill individuals from owning guns.

“People who are disqualified for being what is legally known as ‘mental defective,’ they receive a lifetime gun ban when Congress never contemplated they would receive a lifetime gun ban. That’s a problem for Gun Owners of America,” Mr. Johnston said.

But gun violence researchers counter that red flag laws target an individual’s behavior — not their mental health. They acknowledge, though, that the research on such laws lacks extensive data because they’re relatively new.

“We are early in the life of these policies to really be able to say with rigorous research methods what the effects of these laws are,” said Shannon Frattaroli, professor and core faculty member for the Center for Gun Violence Solutions at Johns Hopkins. “We certainly have descriptive studies that ERPOs [extreme risk protection orders] are being used to intervene when someone is identified as being at risk of committing a mass shooting, committing a suicide.”

A bipartisan Senate deal on gun control calls for incentivizing states to enact red flag laws, among other provisions. The agreement, reached Sunday, resolves a decades-long impasse on gun policy.

Red flag laws, or ERPOs, vary from state to state. Typically under such laws, police, family, coworkers, neighbors or friends can petition a judge to have someone’s gun taken away when they feel the individual is at high risk of hurting themselves or others. Depending on the particular law, an individual may lose their firearm for a few days to as long as a year.

Nineteen states and the District of Columbia have red flag laws, and the majority of them were enacted between 2018 and 2020 following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in 2018.

In 2020, red flag laws were used about 5,000 times to temporarily confiscate firearms and Florida is the state that used its red flag law the most, according to a Wall Street Journal report last year.

It’s unclear, though, how many people end up getting their firearms returned.

An NBC affiliate TV station in Denver reported that in Colorado 146 guns were confiscated under the state’s red flag law since it took effect in 2020, and 116 people eventually got their firearms back.

John R. Lott Jr., president of the Crime Prevention Research Center, said he’s unaware of national data about how frequently firearms are returned to their owners but noted that about one-third of ERPOs are overturned once a hearing is held.

“The rate should actually be much higher because few people who go through the hearing process actually have legal counsel,” Mr. Lott said. “The taking of the guns is also usually just temporary, but there is no real national data on how long those takings last.”

He argues that red flag laws run afoul of due process.

He also contends, like Mr. Johnston, that there area state laws under which mentally ill individuals can be involuntarily committed to a mental hospital and have their guns confiscated — at times for life.

“People who truly pose a clear danger to themselves or others should be confined to a mental health facility or be required to seek treatment. Laws used to confiscate guns are typically enforced when dealing with suicidal people,” Mr. Lott said. “However, if someone is suicidal, there are many other ways they may choose to kill themselves. Simply taking away a gun isn’t the answer.”

Ms. Frattaroli, meanwhile, said red flag laws aren’t about mental health but instead focus on someone’s behavior or words that indicate they’ll do harm.

“From all that we know about violence, the best predictors of future violent predictors are past violent behavior and threats of violence,” she said. “Mental health isn’t a good predictor of future violence. It’s a very different sort of set of criteria.”

She also suggested there should be more consistency and awareness for states and localities to utilize the laws.

“What’s really important is that attention and resources be paid to implementation,” Ms. Frattaroli said “When we look across the states, there is tremendous variation across states and within states with regard to how frequently they are being used.”

Last week, the House passed the Federal Extreme Risk Protection Order Act, which would allow courts to take guns from people deemed dangerous and bar them from purchasing firearms.


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