'Red flag' laws to prevent mass shootings could be on the U.S. political table. But do they work?
So far, 19 states and the District of Columbia have enacted red flag laws
On March 7, 1998, a disgruntled Connecticut State Lottery employee stood up from his chair at work and began shooting and stabbing his superiors, before killing himself. When the rampage was over, four people had been slain.
There may have been warning signs that he posed some kind of threat — severe depression, suicide attempts and concern among colleagues about his general well-being — that could have been described as so-called "red flags."
"So that got me to thinking — I was in the legislature at the time — can we come up with some mechanism that the police can use in these situations? And we did," said Michael Lawlor, a former member of the Connecticut House of Representatives.
Lawlor authored the first so-called red flag law in the U.S., more formally known as Extreme Risk Protection Orders (ERPO). These orders, handed down by a judge or police, can temporarily restrict firearm access to individuals who are believed to present a risk of violence — either to themselves or against other persons.
The concept seems to be gaining some traction following the recent deadly shootings in Buffalo, N.Y., and Uvalde, Texas, a potential compromise in the never-ending debate over gun control.
Yet just how effective these laws can be, and their effect on preventing other mass shootings, remains unclear.
The idea behind such laws is that, according to some research, mass shooters have often displayed a series of concerning behaviours before their attacks.
The laws, depending on the state, allow for a range of people — including families, household members, community members, or law enforcement officers — to petition a court directly for an ERPO, according to the Giffords Law Center To Prevent Gun Violence.
Definition of 'red flag' can vary
What defines a "red flag" behaviour varies from state to state, and each uses different formulations to ultimately approve an ERPO, said Dr. Mark Rosenberg, founding director of the National Center for Injury Prevention and Control.
"Basically there has to be credible evidence that this person is very likely to hurt themselves or another," he said. "It has to be a very credible threat. It's not that someone overheard someone say, 'Oh, I hate these people.' No, that's not credible evidence of a threat."
Jaclyn Schildkraut, interim executive director of the Regional Gun Violence Research Consortium at the New York-based Rockefeller Institute of Government, said officers have to file an arrest affidavit detailing why they want to arrest this person and outline their probable cause.
And whoever is petitioning for an ERPO still has to be able to articulate to the court why the order would be necessary, she said.
So far, 19 states and the District of Columbia have enacted red flag laws. While adoption has been slow, many states, including Florida, introduced these laws following the 2018 high school shooting in Parkland, Fla., when 17 people were killed.
And while Republicans have generally rejected proposals for stricter gun control, red flag laws have got some buy-in from pro-gun rights conservatives and politicians. Several Republican senators have said they would be open to a federal red flag law, though they've also said they would prefer to leave such decisions to individual states.
'If you see something, say something'
In Connecticut, it took a while for police to become comfortable with the law, and for people to follow the advice, "if you see something, say something," said Lawlor.
But he said the affidavits in his state suggest the orders have been used against people who truly posed threats and who have enormous amounts of weapons in their house — "not just some guy who's having a bad day and might have a gun in his house."
"And very few of these people were already on the mental health radar screen," said Lawlor. "And when you read these things, you start to appreciate how much of this stuff is sort of brewing out there."
As for how effective these laws have been, Schildkraut suggests that some initial studies hold promise. One study of the Connecticut laws revealed that for every 10 to 20 removals of weapons, one life was saved from a gun-related suicide, she said.
"Other studies have found that in instances where people were threatening mass shootings and an extreme-risk order was issued, that none of those individuals went on to commit a mass shooting after a certain period of time," she added.
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One such study at the University of California identified more than 20 cases in which the state's red flag law was used to disarm people in an effort to prevent a mass shooting. None of the threatened shootings in those cases took place, the Washington Post reported.
However, researchers could not definitively state that California's red flag law was responsible, noting that it was impossible to know whether threats would have actually been carried out.
And New York's red flag law wasn't enough to prevent the recent mass shooting in Buffalo, where a gunman opened fire at a Tops supermarket in a Black neighbourhood, leaving 10 dead and three injured. Reports say law enforcement had referred the suspect for a psychiatric evaluation after he made a threat to his school, yet he was still able to get access to a weapon and no petition was filed against him.
In that case, Fredrick E. Vars, a law professor at University of Alabama School of Law, said he believes police may have misread the statute. "I think they probably could have moved forward with the red flag on that," he said.
Vars noted that the greatest impact of red flag laws seems to be on the prevention of gun-related suicides.
"In terms of [an] effect on homicide, or effect on mass shooting. I haven't seen really persuasive evidence, I think, in either direction yet," he said.
Others have also questioned if red flag laws may violate the civil liberties of the accused. In 2018, the Rhode Island branch of the ACLU expressed "great concern" over the introduction of that state's red flag laws and "its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals, not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one."
Kendra Parris, a Florida-based lawyer who has represented people subject to red flag laws, said she worries people will see such laws as "a panacea" to gun violence.
"It's a broad net. And the problem, like with the one in Florida, it was so broad … it really does leave it up to each court to sort of make that call," she said.
"Psychiatrists can't even accurately predict whether somebody is going to be violent or not. What we're really asking is for laypeople — that is cops and the courts — to make these judgment calls," she added.
"And so do you take a 'better safe than sorry' approach? Because if they don't and something does go wrong, they're going to get egg on their face."
Meanwhile, Rosenberg said the U.S. is way behind in conducting research on what measures could prevent gun-related deaths, including red flag laws.
"We know there's not a single type of intervention for which there is strong evidence either way," he said.
"And these things are so complicated. You can't figure out in your head whether red flag laws are going to work for gun homicides or gun suicides. There's no way to know what works without doing the research."
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