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The National Red Flag Act

The National Red Flag Act

General

Nathaniel Baptiste. What You Need To Know About Red Flag Gun Laws (2018)

Politicians across the country have debated new gun laws in the wake of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida that left 17 dead, and many state legislators have begun pushing laws that would allow cops to remove guns from people suspected of being threats.

Red flag laws, sometimes called extreme risk protection order laws, allow a judge to issue an order that enables law enforcement to confiscate guns from individuals deemed a risk to themselves or others. Since the Parkland shooting, at least two dozen states have considered enacting similar laws in their states. In Vermont, a red flag law has already passed the both the Senate and House.

“We think this is a sensible approach to put power in the hands of family members who are concerned about [someone] but don’t have any tools in their hands,” says Kristin Brown, the co-president of the Brady Campaign to Prevent Gun Violence.

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Washington Post Editorial Board Lawmakers should study the early success of Maryland’s red-flag law (2019)

Maryland was among the states that adopted a red-flag law after the Parkland slaughter, and it is showing promising results. Testimony last week to the Maryland House Judiciary Committee revealed that in the three months after the law took effect on Oct. 1, Maryland courts seized guns from 148 people after it was determined there was probable cause the individuals posed a danger to themselves or others. Four of the gun owners posed “significant threats” to schools, according to Montgomery County Sheriff Darren M. Popkin (D). “These orders are not only being issued appropriately; they are saving lives,” he told lawmakers.

KIMT News Laws that remove firearms from those considered a safety risk reduce gun-related suicides, study finds (2018)

As more states consider passing “red-flag” laws that would let authorities temporarily seize guns from people deemed a risk to themselves or society, a new study suggests the laws might have prevented some firearms-related suicides.

The University of Indianapolis study focuses on the two states that have had red-flag laws the longest: Indiana (since 2005) and Connecticut (since 1999).

The study, published in the June 2018 issue of Pyschiatric Services, found that Indiana’s gun-related suicide rate was 7.5% lower in the 10 years after the law was enacted (2005-2015), compared to what would have been expected without the law.

More than 5,100 people killed themselves with a firearm in Indiana during those 10 years after the law took effect. But the statistical analysis shows the law may have prevented an additional 383 suicides by gun, according to the study, led by Aaron Kivisto, an assistant professor of clinical psychology.

A 13.7% drop in Connecticut

Connecticut also demonstrated a drop, especially after 2007, when Connecticut authorities stepped up enforcement of the law following a mass shooting at Virginia Tech that year, the study says.

The study found Connecticut’s gun-related suicide rate dropped 1.6% in the first few years after its law passed in 1999, relative to what would have been expected without it.

But the drop was more pronounced — 13.7% — from 2007, when Connecticut authorities started using the law more often — to 2015.

What red-flag laws do

Connecticut and Indiana were the first states to enact red-flag gun laws, also known as extreme-risk protection order laws or gun violence restraining order laws.

A few other states have passed them since then — including Florida and Rhode Island this year — and more are considering them, spurred in part by mass shootings like the one that killed 17 at Florida’s Marjory Stoneman Douglas High School in February.

The laws differ state to state, but they generally allow specific people — law enforcement officers and, in some states, relatives of the person in question — to ask a judge to temporarily prohibit someone from possessing or buying firearms.

This would be based not primarily on criminal history or mental health disqualifications already enshrined in law, but rather over allegations that the person is likely to harm themselves or others.

The laws have drawn criticism from a range of observers, including gun-rights proponents and the Rhode Island chapter of the American Civil Liberties Union.

“This is very dangerous for all our rights, as it moves us to a ‘Minority Report’ type of society, where one can lose their rights for what they ‘might do’ in the future,” said the Gun Owners of America firearms lobbying group in a statement

But supporters say such laws fill a gap. While other laws prohibit gun ownership for previously adjudicated crimes or mental health dispositions, red-flag gun laws can let authorities confiscate guns before a crime or suicide is attempted, when evidence shows danger is imminent.

Connecticut passed its law after a shooting at the state lottery headquarters. Indiana passed one after a police officer was shot and killed in Indianapolis.

While mass shootings seem to spur legislatures to pass red-flag laws, in practice they’ve functioned as a suicide prevention mechanism, Kivisto told CNN.

Kvisito points to research showing that in some years, more than 80% of the red-flag gun seizures in Indianapolis happened because of perceived risks of suicide rather than fears of homicide, domestic violence or psychosis, Kivisto said.

Crunching the numbers

You might wonder how the authors estimated what might have been expected without the laws. The answer: They compared Indiana and Connecticut to an amalgamation of states that were similar in key categories, such as demographics, alcohol consumption, employment rate and gun ownership rate.

So, Indiana was compared to a group of states with similar statistics. From 1981 to 2004, Indiana’s firearm suicide rate (7.3 per 100,000 people) equaled that of the comparison states. But after Indiana enacted its law in 2015, the firearm suicide rate dropped to 6.98 — 7.5% lower than the 7.55 shown by the other states.

There’s mixed evidence on whether the laws are linked to a reduction in suicides by any means.

In Indiana, suicides decreased overall when the law was implemented, driven by the reduction in suicides by firearms, Kivisto said.

But in Connecticut, nonfirearm suicides rose when the law was enforced post-Virginia Tech. The reduction in suicides by guns and the increase in suicides by other means were “almost a wash,” Kivisto said.

There’s been no published research on whether red-flag laws have had effects on homicide rates. “Certainly more research is needed,” the Indianapolis professor said.

Peyton Smith Tackling Questions About Colorado’s Red Flag Law and the Second Amendment (2019)

Below, we’ve addressed some of the common concerns raised about Colorado’s red flag law. In truth, the law—while not perfect—is well-crafted to intentionally avoid many of the problems normally seen in these types of laws.

1. Is it “Gun Confiscation?”

No. The term “gun confiscation” rightly evokes fear among law-abiding gun owners that the government will impose broad-scale civilian disarmament like that seen in Australia and the United Kingdom. Laws that severely diminish the ability of citizens to keep and bear arms commonly used for lawful purposes are an affront to the Constitution.

But this law doesn’t seek to impose broad restrictions on all gun owners. Instead, it creates a legal process to temporarily disarm only those specific individuals who are determined by a court to meet objective criteria for dangerousness.

Under the statute, a law enforcement officer, family member, or household member (such as a roommate or domestic partner) may petition a court to hold a hearing over whether a person poses a significant risk of danger to self or others, and then temporarily revoke his or her right to purchase or possess firearms because of that risk.

A petitioner may request an emergency 14-day order if the risk for harm is “in the near future,” or a yearlong order if the risk is significant but not necessarily imminent. In either case, if the order expires without a new hearing being held and the order renewed, the individual’s firearms must be returned within three days and his or her name removed from any lists of disqualified persons, at no cost to the individual.

The same three-day mandate for the return of a person’s firearms applies to the expiration of yearlong orders, as well.

Moreover, the law explicitly states that this type of red flag order doesn’t count as a disqualifying mental health commitment under federal law. As soon as the order expires, the person is free to exercise his or her Second Amendment rights again without undergoing additional restoration processes.

In other words, this law doesn’t impose general prohibitions on all gun owners, but allows for temporary restraints on individuals who are genuinely a risk to personal or public safety, and only for the length of time that they pose a risk.

2. What About Due Process?

No person’s constitutional rights should be revoked, even temporarily, without first affording him or her meaningful due process protections. Colorado’s law generally ensures that the process for restricting firearm access via a red flag law has the same protections in place as its process for involuntarily committing someone to mental health treatment.

Once a petition is filed for a yearlong order, the court must hold a hearing within 14 days.

There, the defendant is entitled to legal counsel and the full array of due process protections for a civil commitment hearing—including the right to testify, to present evidence, and to cross-examine witnesses.

The burden of proof is on the petitioner to show by clear and convincing evidence that the individual is a significant risk of danger because of his access to firearms.

If the petition is for a 14-day emergency order, the hearing must be held within one court day, but it may be done without the defendant present.

The burden of proof is also lower, at a preponderance of the evidence. However, the petitioner must show that the risk of harm is in the “near future,” and must seek a full-fledged hearing for a yearlong order or else the emergency order expires after 14 days and the individual must have their firearms returned.

Orders don’t renew automatically, and any petitioner who requests a renewal must again show that the person is still a significant risk of danger.

If a petition is granted, the defendant may later request that the court remove the order before its expiration date and show that he is no longer a risk of danger.

It is common in all civil and criminal procedures for the person appealing a decision to bear the burden of proof.

In short, there is nothing out of the ordinary or fundamentally lacking in terms of due process prior to the temporary restriction of an individual’s rights under this law.

3. What About Actually Treating Them?

Some opponents of the law argue that it merely “kicks the can down the road” by taking away a person’s guns without actually treating them. While this is certainly a valid criticism of some red flag laws, Colorado’s law makes a commendable effort to integrate its red flag law with the existing mental health framework.

Under the law, whenever a temporary or yearlong order is granted, the court must also evaluate whether the individual meets the criteria for an emergency mental health assessment or for court-ordered mental health treatment.

Regardless of whether the individual meets that criteria, the law mandates that he be provided with resources regarding behavioral health treatment options, presumably as a means of facilitating his ability to later demonstrate a more stable and less violent frame of mind.

4. Aren’t Red Flag Laws Dangerous for Cops?

Law enforcement officers often respond to dangerous situations, and there is no practical difference between serving a red flag order, serving a normal arrest warrant, or taking someone into emergency protective custody when they’re in the middle of a mental health crisis.

If anything, the red flag law allows mentally unstable people to be disarmed before they actively engage in violent behavior directed toward themselves or others.

It’s already the case that untreated mental illness is major cause of concern for responding officers, with one 2012 analysis finding that at least half of all physical attacks on police officers are by mentally ill individuals—many of whom are untreated.

The goal of red flag laws, however, is to disarm these individuals and reroute them toward proper treatment before they ever reach a crisis stage. This ultimately makes cops and communities safer from potentially volatile situations, not less safe.

To be sure, reasonable people can debate whether certain aspects of Colorado’s new law should be altered as a matter of policy.

For example, should the order last for only six months instead of a year?

Should people who knowingly file baseless petitions in order to harass someone face additional criminal penalties?

Would it be a good idea to ensure that all records of a petition are expunged if the court doesn’t grant it, or that granted petitions are sealed after a certain period of time?

These are all useful questions, but they don’t mean the law is fundamentally flawed or constitutionally unsound. The truth is that Colorado lawmakers did a laudable job of taking into consideration and addressing very real concerns raised about past versions of this bill.

It’s true that anti-Second Amendment rhetoric is an ever-present force in recent years. But we needn’t condemn laws that, like Colorado’s, correctly focus on the underlying causes of firearm-related violence without broadly infringing on the rights of all gun owners.

Moms Demand Action Red Flag Laws Save Lives. Here’s Proof. (2019)

As the Senate Judiciary prepares to hold a committee hearing on Red Flag laws today, it’s important to understand the life-saving effects these laws have in removing firearms from dangerous situations. Since the Parkland mass shooting – where the family of the shooter saw warning signs prior to the shooting – nine states have passed Red Flag laws and five were signed by Republican governors. In total, fourteen states and Washington D.C. have these laws on the books.

Red Flag laws allow families and law enforcement to ask a judge to temporarily suspend a person’s access to guns if there are clear signs that person poses a serious threat to themselves or others. When someone is in a state of crisis, or threatening violence against themselves or other people, access to a firearm can mean the difference between life and death. The below stories are just a small sampling that provide important illustrations of the vital role of Red Flag laws in preventing people in crisis from accessing firearms:

In Campbell, California, a woman contacted the Campbell Police Department after her husband sent her a threatening text referencing a recent sniper attack in Dallas, then loaded his guns into his car and departed. After an order was issued, police removed seven weapons, including a scoped rifle, from the man’s place of work.

In Escambia County, Florida, a high school student was stalking his ex-girlfriend after she broke up with him. At one point he attempted to punch a boy who was with her. The student also threatened to post naked photos of the girl on social media, said he would kill himself if she didn’t get back together with him, and posted photos of an AR-15 online. Two resource officers submitted affidavits for a petition against him and all the firearms were removed from his home.

In Randolph, Massachusetts, a woman filed an extreme risk protection order against a Marine Corps veteran who she says had assaulted her and had a “pattern of self-harm, violence towards others and objects.” Handguns and ten semi-automatic rifles were removed by police.

In Roseville, Califonia, the Roseville Police Department responded to a relative’s call about a man armed with a handgun and threatening suicide inside his home. When the officers could not convince him to come out of the house after several hours, they returned later with a gun violence restraining order and removed his firearms.

In Osceola County, Florida, a janitor threatened to bring a gun to school, and was reported to police by a teacher at Parkway Middle School. He told the teacher his only regret would be that his targets would “run for their lives before [he] could get to them.” After an order was issued, deputies removed a handgun from the man.

These laws are proven effective. In Connecticut, the increased enforcement of its Red Flag law was associated with a 14 percent reduction in the state’s firearm suicide rate. Ten years after passing a Red Flag law in Indiana, the state’s firearm suicide rate decreased by 7.5 percent.

After today’s hearing, the Senate should pass Red Flag legislation into law. More information about Red Flag laws is available here. If you have additional questions about this bipartisan policy, don’t hesitate to reach out.

Academy Creations/Social Work Today. Research Finds Link Between Reduction in Firearm Suicides and ‘Red Flag’ Gun Laws (2018)

Data from states that have adopted risk-based firearm seizure laws show impact of legislation to combat gun suicide, according to University of Indianapolis study.

A new study by Aaron Kivisto, PhD, an assistant professor of clinical psychology at the University of Indianapolis, provides evidence that risk-based gun seizure laws are saving lives. The study, “Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015,” appears in the June 2018 issue of Psychiatric Services.

Peter Phalen, also of the University of Indianapolis, was coauthor. Risk-based firearm seizure laws—also known as “red flag,” risk warrant, gun violence restraining order, or extreme risk protection order laws—provide ways for law enforcement to seize guns from individuals considered to pose an imminent risk of serious harm to themselves or others. Nearly 23,000 Americans died in suicide incidents involving a firearm in 2016, the most recent data available from the Centers for Disease Control and Prevention (CDC).

The study, which utilizes CDC data for the 50 states, covers a 34-year period. Researchers compared the number of firearm-related suicides before and after risk-based firearm seizure laws were enacted. They took a close look at Connecticut and Indiana, the first two U.S. states to adopt red flag laws.

The study finds a 7.5% decrease in firearm suicides in Indiana in the 10 years following enactment of the law relative to expected rates, an effect larger than that seen in any comparison state by chance alone. Enactment of Connecticut’s law was associated with a 1.6% reduction in firearm suicides immediately after its passage relative to expected rates, and a 13.7% reduction in the post-Virginia Tech period when there was a substantial increase in enforcement.

With more than 20 “red flag” gun bills pending in state legislatures across the country, Kivisto says risk-based gun seizure laws have emerged as a prominent policy option for reducing gun violence. In the wake of the Parkland mass shooting, Florida recently became the sixth state in the country to pass a red flag gun law, joining California, Connecticut, Indiana, Oregon, and Washington.

“Policy makers working to reduce gun violence benefit from data in helping them weigh the balance between individual risks and rights,” Kivisto says. Red flag laws, which may vary from state to state, share several important commonalities, particularly in providing a way of removing guns from individuals who are considered dangerous and already own guns, according to Kivisto.

“All states include judicial oversight of all gun seizures made by law enforcement and provide due process protections,” Kivisto explains. “These laws aren’t designed to permanently prohibit individuals from owning guns, but rather to remove them, often for several months, until the individual is no longer in crisis and posing a risk to themselves or others,” he adds.

New Times. Florida’s Post-Parkland “Red Flag” Law Has Taken Guns From Dozens of Dangerous People (2018)

The law gave police the power to ask judges for temporary orders to take guns away from dangerous people, without any input from that person. If a judge agrees, police take the guns, and a final hearing — where the person can argue their case — is scheduled within 14 days.

Judges are given 15 criteria to determine whether a person is a danger, including whether they’ve made any threats toward themselves or others or committed any acts of violence, have a serious mental illness, have a past conviction for domestic violence, or have been arrested for a violent crime

National Public Radio Gun Studies: Permit Laws Reduce Murders; Red Flag Laws Cut Suicides (2018)

“In Indiana, after the enactment of the law [in 2005], we saw a 7.5 percent decrease in firearms suicides in the 10 years that followed,” Kivisto said. “We didn’t see any notable increase or decrease in non-firearms suicide.”

He says the picture is more “nuanced” in Connecticut, which passed a red flag law in 1999. He says there was little effect in the first few years — just a 1.6 percent decrease in gun suicides — but he thinks that’s because the law wasn’t enforced much at first. After the Virginia Tech shootings of 2007, he says enforcement increased dramatically.

“And so when we looked at it from 2007 and beyond, [gun suicides] decreased by 13.7 percent,” Kivisto said.

Other states with red flag laws include Washington and California, though they’re too recent to be part of Kivisto’s study. About 20 states are considering similar legislation, and Rhode Island approved a red flag law just last week.

There are no good studies yet of how red flag laws affect murder rates, though at least one is in the works.

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Hundreds of Floridians Ordered to Surrender Guns Thanks to ‘Red Flag’ Law, Report Says (2018)

‘RED FLAG’ LAW MAKES US VULNERABLE TO ‘THOUGHT POLICE’ (2018)

Red Flag Laws: The Latest Anti-Gun Scheme (2018)

Four Scary Facts Gun Owners Need to Know about Red Flag Gun Confiscation Bills (2018)

Current law is BETTER than any “red flag” law when utilized properly (2019)

Some ‘Red Flag’ laws Are unconstitutional—and could kill more people than they save (2019)

Unconstitutional ‘red flag’ laws attack the rights of people who might, maybe, at some point, commit a crime (2019)

RED FLAG LAWS AND THE CONSEQUENCES OF GOOD INTENTIONS (2019)