What are red flag laws; would they have helped prevent the Texas, Ohio shootings?

In the wake of the mass shootings this weekend in El Paso, Texas, and Dayton, Ohio, that left 29 dead and more than 50 injured, there have been calls for lawmakers to go back to Washington from their August recess to work on stricter gun control measures.

>> Read more trending news

What they could consider, such as universal background checks and a ban on automatic weapons, remains a point of conflict. However, one measure that gun control advocates, guns-rights advocates, many members of Congress and President Donald Trump seem to at least have a tacit agreement on is the creation of state “red flag laws.”

Here’s a look at red flag laws, which states have already enacted them and how they have worked so far.

What are red flag laws?

A red flag law is legislation, passed at the state level, that allows family members and/or law enforcement authorities to petition a state court to remove guns from individuals who likely pose a threat to themselves or others. The law also prohibits someone who is deemed to pose an immediate threat from purchasing a gun.

The way the law is usually carried out is that a person’s family or local law enforcement request a temporary gun restraining order that lasts, generally, for a short period of time. A hearing is held at which the person can respond to the evidence against him or her, and then the judge issues a final order.

If the judge determines the person is a risk to himself or others, he can order the person to turn in his gun over to state authorities for a certain period of time.

The laws, known as Gun Violence Restraining Orders or Extreme Risk Protection Orders, allow for only temporary removal of guns. Depending on the state, authorities generally may take possession of guns for up to a year, though another court hearing can extend the period that a gun may be held.

Which state has red flag laws?

Fifteen states currently have passed red flag laws. They are:

New Jersey
New York
Rhode Island

Ohio and Texas legislators have proposed a red flag bill.

Do red flag laws work?

It can be hard to tell if the laws work when it comes to mass shootings. It is impossible to know if the law prevented shooting incidents.

However, some studies have shown that the law seems effective in preventing suicides. A Duke University study in 2016 concluded that Connecticut's red flag law averted around one suicide for every 10 to 20 gun seizure cases. The study looked at 762 gun seizure cases between 1999, when the law was enacted in Connecticut, and 2013.

The study seemed to show that the laws have been most effective when they were used to remove weapons from people threatening to do harm to themselves compared to those who were threatening others.

How many weapons have been seized?

In 2018, more than 1,700 guns were seized in red flag law states after judges determined the individuals were a threat to themselves or others, according to The Associated Press.

What about due process concerns?

Under federal law, a person who is mentally ill is not prohibited from purchasing and possessing a firearm unless that person has been formally, and involuntarily, committed to a mental institution, found not guilty by reason of insanity, or has undergone some other judicial proceeding regarding his or her mental illness.

So, how is it legal to temporarily seize firearms from someone who is exhibiting dangerous behavior?

The NRA and others have argued that red flag laws threaten Second Amendment rights, however, state red flag laws mirror domestic violence laws in most states. Those laws allow for a victim to seek a court order to prevent further acts of abuse.

Those who support red flag laws point out that before a person’s guns would be confiscated,  there must be evidence of a history of violence, or, barring that, documented threats that the person has said he or she is considering harming themselves or others.

Gun-rights activists argue that the laws can too easily take a person’s guns based on unproven accusations.

"The biggest issue with all these bills is due process," Dan Reid, western director of the National Rifle Association, told the Las Vegas Review-Journal. "A person is going to lose their rights based on a third-party allegation. They've never been convicted of a crime. They've never been adjudicated mentally ill. That's not how our system of justice should work."

According to the legislative lobbying arm of the NRA the group says that it supports the idea of these laws in general, but opposes the specific versions that have recently passed state legislatures.

The NRA says that any red flag law enacted by state legislatures should include:

  • Anyone subject to an ERPO (Extreme Risk Protection Order, another name for red-flag legislation) should have the opportunity to challenge the order with full due-process protections in place.
  • An order that confiscates firearms should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
  • The judge should concurrently make a determination of whether the person meets the state standard for involuntary commitment.
  • Whether or not the person meets the state standard for involuntary commitment, the person subject to the ERPO should receive mental health treatment.
  • The process should allow firearms to be retained by law-abiding third parties, local law enforcement or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms.
  • There should be a mechanism in place for the return of firearms upon the termination of an ERPO.
  • The process should include criminal penalties for those who bring false or frivolous charges.

Can Congress do anything about red flag laws?

Lawmakers in both parties have introduced bills that offer an incentive to red flag laws, which is all they can do as red flag laws are state laws, not federal laws.

“We’re beginning on a bipartisan basis,” said Sen. Jack Reed, D-Rhode Island, who is co-sponsoring one version of a red flag law incentive introduced by Sen. Marco Rubio, R-Florida. “It’s been adopted in several states so this is something that has bipartisan support. I hope we can build on the current support and get it through.”

The legislation creates a grant program administered through the Department of Justice that would send states funds to help implement red flag programs.