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The Promising Potential of Gun Violence Protection Orders

By Elisabeth J. Ryan

While mass shootings account for just a small fraction of the more than 36,000 lives lost to firearms in the United States every year, these devastating, large-scale events have become not only more frequent but also deadlier in recent years. On February 14, a student who had been expelled from school returned to Marjory Stoneman Douglas High School in Parkland, Florida and killed 17 people using a high-powered AR-15 rifle. At first, the cycle of outrage, grief, “thoughts and prayers,” and demands for gun law reform seemed doomed to repeat and fizzle out, as they already had many times after many similar mass shooting tragedies. But something new emerged out of Parkland – the surviving students who refused to remain silent about gun law reform and refused to back down in the face of politicians and the NRA who advocate for fewer restrictions on guns, such as nationwide concealed carry reciprocity. But in large part due to the Parkland students’ indefatigable activism, the gun lobby has not been able to triumph again via a quiet return to the status quo. Instead, some serious and concrete discussions about gun law reform have taken place across the country. While some suggestions - like the President’s NRA-backed idea of arming teachers - are patently unrealistic; others – like “red flag” laws – have both potential political viability and established track records.

“Red flag” laws are also known as “gun violence protection orders” or “extreme risk protection orders” and refer to legal provisions that allow a petitioner to go to court and seek an order to seize another person’s guns if that person presents a danger to himself or to others. Five states have some version of this law – California, Connecticut, Indiana, Oregon, and Washington - and Rhode Island’s governor issued one via an emergency executive order this week as well. Several other states, including Massachusetts and New Jersey, have bills pending to create similar laws. The laws vary somewhat in details such as who can petition, the burden of proof required, and the process for challenging a seizure. But the overall purpose is the same – instituting a judicial process that allows for the emergency removal of firearms from the possession of a person posing a risk of harm to themselves or others.

These laws are perhaps particularly relevant in the wake of mass shootings like the one in Parkland because they offer a concrete way for a concerned person close to a potentially dangerous individual to seek a specific, court-sanctioned action that removes firearms from their access. The shooter in Parkland was of legal age, bought a legal gun, and legitimately passed all the required background checks, but people who knew him saw signs of potential danger. While some have blamed mental illness for that danger and claimed that firearms violence is a “mental health issue” rather than a “gun issue,” that perspective merely risks further stigmatizing people with mental illness as a whole, while doing nothing to actually provide additional services to anyone. Further, the link between mental illness and violence is extremely weak: “A 2015 study found that less than 5% of gun related killings in the U.S. between 2001 and 2010 were committed by people diagnosed with mental illness.”

Whether the existence of one of these laws would have prevented the massacre in Parkland is, of course, impossible to know. But when Florida Judge Steve Leifman, who chairs the Florida Supreme Court Task Force on Mental Health, was asked what authority he would want as a judge to play a greater role in preventing mass shootings, he answered, “So in Florida, we do not have the authority to take guns away from people that may have been found dangerous to self or others. We only have authority to put them on a list to stop the purchase of the firearm. But if they already own a gun, there’s nothing we can do, which makes no sense at all.”

That same sentiment lead Connecticut to enact the first “red flag” law almost 20 years ago. In 1999, Connecticut passed a relatively large firearms reform package spurred by implementing the National Instant Criminal Background Check System (NICS). In 1993, the Brady Handgun Violence Protection Act created a plethora of new federal firearms reforms, including the establishment of NICS, a centralized federal database that searches records every time someone tries to purchase a firearm from a federally licensed firearm dealer. NICS implementation depends on the cooperation of the states to submit such records, so states were tasked with adjusting their own laws and procedures to facilitate those transfers. When NICS became live in 1998, Connecticut acted swiftly to enact enabling legislation and further used the opportunity to pass multiple additional firearms-related statutes.  This included a first-in-the-nation procedure to seize the firearms of a person posing a risk of injury to themselves or to others. This novel law, though sometimes derided as the “turn-in-thy-neighbor act,” was created as “a very small, but important opportunity to intervene before it is too late.”

Before passage, one politician warned that this scheme would lead annoyed neighbors to maliciously call the police on each other, leading to situations in which armed-and-ready police officers burst through the door of legal gun owners, risking the lives of innocent families. He likened it to “1939 Germany.” Fellow politicians countered that the law was actually “extraordinarily tame” and had “very tight judicial controls.” The same arguments for and against such laws still exist, though bipartisan support is perhaps showing more promise. (The return to “1939 Germany” do not seem to have been realized in Connecticut).

The original Connecticut law created a roadmap for the handful of states that came after it, which somewhat tweaked and tailored their approaches, but kept the basic concept intact. In Connecticut, a prosecutor or any two police officers can petition a judge to grant a warrant allowing them to seize a person’s firearms and ammunition. To do so, they have to prove probable cause to believe that the “person poses a risk of imminent personal injury to himself or herself or other individuals,” that the person possesses firearms, and that they firearms are in a searchable place. The law requires that, before even applying for the warrant, the prosecutor or officers have to conduct an investigation to determine not only probable cause, but also that “no reasonable alternative [was] available to prevent such person from causing imminent…injury…” In the warrant application process, the judge is required to consider any recent threats or acts of violence directed towards the person’s self or others, as well as any recent acts of cruelty to animals. The judge may also consider evidence of any reckless use, display, or brandishing of firearms; history of the use, attempted use, or threatened use of physical force against other persons; prior involuntary confinement of such a person in a psychiatric hospital; and illegal use of controlled substances or abuse of alcohol.

The Connecticut law also mandates that the court hold a hearing within 14 days of the warrant’s execution, requiring a determination as to whether any seized firearms should be returned to the person named. The state has the burden to prove, by clear and convincing evidence, that that the person does pose a risk of imminent personal injury to himself or to others. If the court finds the state has met is burden, it may order that the state continue to hold the firearms for up to one year. It must also advise the state Department of Mental Health and Addiction Services, which can then determine whether to initiate involuntary commitment proceedings.

The most common changes to more recent firearm seizure law haves been to expand the potential petitioners to include family and household members and to shift from a warrant-based system to one more akin to a domestic restraining order, requiring a burden of either preponderance of the evidence or clear and convincing evidence, as opposed to probable cause.  The recent laws also generally include a provision allowing the subject of the order to request a termination hearing at least once during the one-year pendency of an order.

The Connecticut firearms seizure law has been challenged as a violation of the Second Amendment only once in published court decisions. Echoing the Supreme Court’s language in District of Columbia v. Heller, the Appellate Court of Connecticut disposed of the argument succinctly, stating in a 2016 case that the law “does not implicate the Second Amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. It restricts for up to one year the rights of only those whom a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of firearms. The statute is an example of the longstanding ‘presumptively lawful regulatory measures.’” No other Second Amendment challenges to these laws seem to have made their way to any other state appellate courts.

As the movement gains momentum towards more of these “common sense gun solution” red flag/gun violence protection orders states must also “do a better job of informing the public how these laws work…[because] even in the few states with red-flag laws, family members and police are often unaware of them.” Having such potentially promising policies on the books accomplishes little if no one knows how to utilize them.