Raising a red flag

David Hogg was a high school senior at Marjory Stoneman Douglas High School in Parkland, Fla., in 2018 when he survived a school shooting that killed 17 people. He later helped found March for Our Lives, a student-led advocacy group promoting gun safety and increased gun regulations.

On Tuesday, Hogg joined several demonstrators in Philadelphia, Pa., to protest outside of Republican U.S. Sen. Pat Toomey’s office. Among his demands, the activist urged lawmakers to pass red flag laws that could remove weapons from potentially dangerous shooters before they commit a crime.

Florida is one of only two Republican-led states that have enacted an “extreme risk protection law,” also called a red flag law. Florida implemented its law in response to the Parkland shooting, and since then, the legislation has been used to grant nearly 9,000 risk protective orders, according to state data. Those orders require their subjects to surrender all firearms and ammunition in their control or custody.

In total, 19 states and the District of Columbia have passed red flag laws under a variety of names, 14 of which were installed after the Parkland shooting. Galvanized by an attack at Robb Elementary School in Uvalde, Texas, last week and recent shootings in California and New York, legislators and legal experts are reexamining current state laws and considering a federal option.

While most Republicans have historically opposed gun control measures as an infringement on Second Amendment rights, state-level red flag laws appear to have some bipartisan support. Such laws are usually used to prevent suicides, but a 2019 study of California’s red flag law found 21 instances since 2016 in which the subject of a risk protection order made a specific threat to commit a mass shooting. In most states, only a family or household member or law enforcement officials can petition to prevent a firearm purchase or order a removal from someone who poses a threat to himself or others. A judge reviews legal standards and the evidence and then decides how long a person must wait to retrieve the weapon, if ever.

Research from Everytown for Gun Safety, a gun control advocacy group, found that suspects involved in 56 percent of American mass shootings exhibited dangerous signs ahead of time. Criminal justice professors and authors James Densley and Jillian Peterson found the rate much higher, at 80 percent, as of 2021. According to investigators, the alleged shooter in Uvalde asked his sister to purchase a gun, a request she refused. He also posted about violent intentions and the weapons he bought after his 18th birthday in private online messages.

“It’s not focused on all gun owners,” Cassandra Crifasi, deputy director of the Johns Hopkins Center for Gun Violence Prevention and Policy, told NPR. “I think we can reasonably agree that someone who is posting online about committing a mass shooting or someone who is sharing with a family member or a friend that they’re thinking about harming themselves, that’s someone that we would want to separate from firearms.”

Support for these laws typically follows party lines. Since 2019, 10 mostly Republican-controlled states have considered such proposals, but each of them failed to become law. In 2020, Oklahoma became the first state to pass an anti–red flag law, preventing the state from enacting risk protection orders or accepting funding for them. But in the wake of multiple mass shootings, a bipartisan group of U.S. senators is meeting to discuss compromises on gun legislation. One of the group members, Sen. Mitt Romney, R-Utah, said he would likely vote in favor of red flag laws.

Other GOP legislators are on board with helping states bolster their own laws but balk at the idea of a federal version, which Rep. Lucy McBath, D-Ga., has proposed. Instead, Sens. Lindsey Graham, R-S.C., and Richard Blumenthal, D-Conn., said they are discussing federal grants for states to create red flag laws and improve current ones. Recalling Parkland, Sen. Marco Rubio, R-Fla., reintroduced legislation to give the Department of Justice funds to incentivize risk protection orders.

On a recent appearance on CNN, Rep. Dan Crenshaw, R-Texas, said he found the move constitutionally problematic: “What you’re essentially trying to do with a red flag law is enforce the law before the law has been broken. It’s difficult to assess whether somebody is a threat.”

The National Rifle Association claims red flag laws violate due process and can easily be misused if a petitioner wrongfully claims someone poses a threat. When the Justice Department issued model laws for states to reference, the NRA protested: “Those subject to these orders are stripped of their rights without being convicted of any crime. By releasing this model language, the Biden administration has endorsed these unconstitutional measures.”

A New York University study found that even if a weapon is seized ex parte, without the owner present, every state with a red flag law requires a hearing with the respondent, typically within 14 days. Existing risk protection orders also give the judge strict standards to determine whether the evidence meets a burden of proof and offers the subject a chance to challenge the order.

Other critics say red flag laws won’t be effective against people already bent on breaking the law. Sen. Roy Blunt, R-Mo., pointed out that New York has some of the strictest risk protection orders. Yet a shooter killed 10 people in Buffalo last month, even after allegedly publishing hints about his plan and a manifesto of violent content. Despite the suspect’s past mental health treatments and threats of violence, police did not ask a court to keep weapons out of his possession.

Red flag proponents say that does not necessarily indicate a failing of the law but rather a lack of training and awareness. A 2020 University of California survey found two-thirds of respondents had never heard of the state’s red flag law even though it had been invoked nearly 1,000 times that year.

University of Virginia law professor Richard Bonnie was one of the original authors of Connecticut’s red flag law. He analyzed the shootings in Buffalo and Uvalde and agreed in a recent school Q&A that the law requires more education and training: “One of the problems that we have in these situations is the general disinclination that many of us usually have about interfering in other people’s lives. … If the state enacts a red-flag law, then it must also launch a public education campaign about why citizens should use it.”