More states approving 'red flag' laws to keep guns away from people perceived as threats

Maryland Gov. Larry Hogan signs a "red flag" law into effect in April.

May 14, 2018 3 AM PT

Since the fatal shooting of 17 people at a South Florida high school, five states — Delaware, Florida, Maryland, Rhode Island and Vermont — have passed laws that allow authorities to temporarily take away guns from a person who has shown a pattern of violence.

While most legislative proposals to address gun violence stall, the “red flag” laws, as they are known, have passed with bipartisan support and the collaboration of activists on both sides of the gun control debate. The momentum for these laws comes after investigations revealed that the shooters often showed warning signs that they would commit violence.

Nine states now have such laws on the books and dozens of others are considering such proposals.

The most recent law came in Delaware, where Gov. John Carney on April 30 signed the Beau Biden Gun Violence Prevention Act into law. It allows mental health professionals to report potentially dangerous people and have their guns seized through a court order.

The bill failed in 2013 but now, in the aftermath of the carnage at Marjory Stoneman Douglas High School in Parkland, Fla., on Feb. 14, it passed the General Assembly unanimously.

“We had meetings where the Delaware Coalition Against Gun Violence met with members of the local NRA,” said state Rep. David Bentz. “We sat in a room and talked about the bill. They seemed sincere in their efforts.”

Delaware lawmakers are expected to pass a second bill similar to most red flag laws, which allow family members and law enforcement officials to petition a court to seize guns from people who exhibit warning signs of harm — to themselves or others. In Maryland, Gov. Larry Hogan signed such a bill into law in April.

“I think that we were able to craft a really effective law here in Maryland because it was a huge cooperative effort, between all organizations,” Jen Pauliukonis, president of the Marylanders to Prevent Gun Violence said.

Under red flag laws, guns are taken from a person temporarily; how long the guns are withheld varies from state to state. Such laws in California and Florida, for example, allow firearms to be removed for up to a year.

The laws address a concern from law enforcement — how to take action when a crime has not yet been committed, said William Rosen, deputy legal director for Everytown for Gun Safety. “The red flag law steps into that gap,” he said.

In March, the National Rifle Assn. surprised gun rights advocates and gun-control proponents by expressing support for red flag laws.

“We need to stop dangerous people before they act. So, Congress should provide funding for states to adapt risk protection orders,” Chris Cox, executive director for the NRA’s Institute for Legislative Action, said in a YouTube video.

The NRA’s stance felt like a betrayal to some. “The key point for red flag laws is that someone can be accused and have their guns confiscated. It is an anti-American proposal,” said Dudley Brown, president of the National Assn. for Gun Rights.

Red flag laws amount to a “removal of due process,” he said. “They think you might do something bad, so they’re going to take away your civil rights.”

Gun rights advocates hand out 30-round magazines at an event outside the Vermont Statehouse in Montpelier in March to protest gun-control laws. The measures, including a "red flag" law, were signed into law.

A nationwide study by Everytown for Gun Safety showed that 42% of the time, the suspect in mass shootings showed warning signs prior to the incident.

An anonymous caller told the FBI about Nikolas Cruz’s disturbing behavior patterns one month before the shooting at Stoneman Douglas High School. In a statement, the FBI said the caller told authorities about “Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media posts.” The FBI had admitted that the proper protocols were not taken for the caller’s concerns on Cruz.

Proponents of red flag laws note that before a court order can be executed, there must be evidence of a history of violence, or documented threats of committing harm to themselves or others.

“Making one threat doesn’t count as convincing evidence,” said Jennifer Lynch, board member of Oregon Alliance for Gun Safety. “The statute requires multiple, provable evidence for the cops to come in.”

Red flag laws ask the court to consider, among other things, a person’s documented history of violence or attempted violence, unlawful use of controlled substances or deadly weapons and recent purchases of deadly weapons.

After a person’s guns are taken, he or she has time to have the order rescinded. Each state allows a window for the petitioner to have a court date and argue for their guns back.

Before a red flag law passed in Rhode Island in April, civil libertarians there wanted significant amendments to address concerns about due process. Steven Brown, executive director of the American Civil Liberties Union chapter in Rhode Island, said there should be “a significant danger of imminent harm” before a petition could be made.

A mandatory mental health evaluation was also removed from Rhode Island’s law because it was “promoting a person’s mental health as the basis for issuing these orders,” Brown said. “There are many criteria a judge is supposed to consider, regardless of mental health or illness.”

In some states, earlier efforts to pass red flag bills failed. Such legislation died in Oregon in 2016. That winter, James Tylka bought a 9-millimeter handgun on Christmas Eve to kill his wife, Katelynn Armand-Tylka. He also shot an Oregon state trooper, who survived. Tylka was later shot multiple times by police and also had a self-inflicted gun wound. He died.

Armand-Tylka had planned to file a restraining order against Tylka, who had a documented history of domestic violence, including text messages threatening her life. A red flag law later passed and since it went into effect in Oregon on Jan. 1, the state has had 19 orders filed in 15 counties, according to Phillip Lemman with the Oregon Judicial Department.

Mental health professionals believe red flag laws balance public safety with personal rights by focusing on behavior, not mental health diagnosis.

“It isn’t just about mental illness. It’s about the person’s history and capacity to be a responsible gun owner,” said Dominic Sisti, director of the Scattergood Program for Applied Ethics of Behavioral Healthcare.

If the standards for a red flag weren’t as high, it would be a greater concern. “I think that’s totally reasonable. If an individual is in crisis, it seems like common sense to me that [person] shouldn’t have firearms,” Sisti said.

“With any kind of public policy, there has to be a balance,” said Kristin Brown, co-president of the Brady Campaign to Prevent Gun Violence. “These [red flag] laws strike that right balance.”

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