States Mull ‘Red Flag’ Gun Seizures from People Deemed Dangerous

In the last two months, law enforcement authorities in California took a gun away from a 38-year-old man who had threatened to kill himself, his wife and their young child if she left him. They removed three weapons from a 23-year-old ex-Marine who, authorities said, had developed a paranoia that all males wanted to harm him. And they took a handgun from a 39-year-old man whose terrified neighbors reported that he was firing his weapon in the backyard; the man, who said he thought he was aiming for raccoons and rats, was found to be intoxicated, police said.

California is one of only five states with “red flag laws” or extreme risk protection orders allowing police to temporarily take away guns from people deemed by a judge to be dangerous, often after a family member or acquaintance raises concerns. Similar measures are being weighed in more than a dozen additional state capitals from Pennsylvania to Hawaii and are drawing new attention after the deadly shooting this month at a Florida high school in a case where the suspect, Nikolas Cruz, had numerous troubling run-ins with authorities over many months. Florida has no red flag law.

It is difficult to measure the effectiveness of red flag laws, in part because it is impossible to count mass shootings, or other tragedies, that were avoided. That said, authorities in states with the laws, including Connecticut, Indiana, Oregon and Washington, say they have seen patterns: upticks in the use of such laws after mass shootings in other places.

The measures were also used in situations far different from the mass shooting scenarios they were originally conceived to prevent. Most often, guns were removed from people not seen as threats to large groups or public gatherings, but as risks to themselves or to their families, or suffering from debilitating illnesses such as Alzheimer’s or alcoholism. A study in 2016 led by researchers at Duke University concluded that Connecticut’s red flag law appeared to have prevented some suicides.

“It’s fair to say that everyone, law enforcement included, is learning how this law might work — in the process of using it,” said Garen Wintemute, a professor of emergency medicine and director of the Violence Prevention Research Program at the Sacramento campus of the University of California, Davis.

Connecticut was the first state in the nation to pass such a statute in 1999, in response to a mass shooting at a state lottery office. What followed surprised some officials there: Almost no one used the law. For years, it was relegated to the back shelf of law enforcement, with only a handful of cases a year.

The pace of cases began to quicken, Connecticut statistics show, after high-profile shootings occurred elsewhere, starting in 2007 with the deaths of 33 people on the campus of Virginia Tech. Advocates of red flag laws said they provided important protections, particularly as people became increasingly aware of the risks of mass shootings.

Still, even states with the laws have not avoided such shootings. The gunman who killed 26 people at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012 had access to guns, though people who knew him said he had shown troubling signs before the attack.

“This is a country with hundreds of millions of guns in circulation, and that fact imposes real constraints on what policy can achieve and on what kind of policy makes sense,” said Ramesh Ponnuru, a fellow at the American Enterprise Institute, a conservative research group. No one, Ponnuru added, should expect any one law to fix everything. “Realism is the right attitude,” he said.

Many Republicans oppose red flag laws, and the National Rifle Association has argued that a judge’s order to seize a person’s weapon may violate Second Amendment rights when no crime has been committed.

But law enforcement officials who have embraced red flag laws say they allow authorities to step in before something catastrophic occurs. The removals are temporary, these officials stress, meaning that guns are returned to people no longer deemed dangerous.

The laws allow weapons to be seized for a brief time — typically two or three weeks — after which a petitioner, usually a police agency, must go back to court to let a judge decide whether the gun owner’s behavior amounts to a threat to himself or others and whether the weapons should be held longer. Some states, including New York and Texas, already allow guns to be taken from mental health patients deemed dangerous, but red flag laws hinge on outward behavior — a person’s statements and actions regardless of medical diagnosis.

“The reason I like gun-violence restraining orders as an option is that we can use them even if the person hasn’t been convicted of a crime,” said Mara W. Elliott, the San Diego city attorney. California’s measure, patterned after Connecticut’s, took effect in 2016, and late last year, Elliott assigned an assistant city attorney to pursue gun-seizure cases full time, one of the first cities in the nation to take such aggressive action. So far, the office has pursued 10 cases, Elliott said, and officials there have seen circumstances involving more intimate situations than they had expected. Prompted by calls to police, who then asked the city attorney to intervene under the new law, authorities removed guns from Alzheimer’s patients, alcoholics and people accused of domestic abuse.

Since Connecticut passed its law, the state has seen 1,519 cases, about two-thirds of them since 2012. California’s far newer law resulted in 86 cases in its first year. And Washington’s superior courts have held about 65 hearings under the law since it was approved by voters in 2016.

Red flag laws have evolved, too. Connecticut and Indiana, which passed its law in 2005 after the murder of an Indianapolis police officer, allow only law enforcement agencies to bring petitions for temporary gun removal. Newer measures, in California, Oregon and Washington, allow family members to bring such petitions to judges as well.

The effectiveness of the statutes has depended on the level of communication between the public and law enforcement agencies, according to social and health policy researchers who have studied the laws. In some places, they said, residents have been far more willing to report troubling behavior than in others. And in some communities, law enforcement agencies are more familiar with the technical intricacies of applying the red flag laws than they are in others. Even in the states that have had the laws longer, like Indiana, state officials have said that many residents and police officers are unaware of the tools they have.

Curtis T. Hill Jr., the Republican attorney general of Indiana, on Wednesday took the unusual step of reminding his colleagues around the state that the provision exists.

“Indiana’s ‘Red Flag Law’ is a common-sense measure that in no way inhibits the Second Amendment rights of law-abiding citizens,” Hill said in a statement. “This useful provision is not as well-known, even among law enforcement, as one might expect. That’s why this week we are distributing a public safety advisory raising awareness of the law and urging police and prosecutors to make full use of it as we work together to protect all Hoosiers.”