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.

Smart Gun Technology and the Potential to Save Lives

By Elisabeth J. Ryan

In the 1970s, a California man designed a magnetic lock that could be installed in the revolvers used by law enforcement, rendering the gun inoperable unless the user was wearing a special ring with an opposing magnet.  This device, designed so that someone who grabbed a police officer’s gun would not be able to turn that gun back on the officer, represented the first “smart gun” technology (and can still be purchased today for a mere $420). Beginning in the 1990s, technology entrepreneurs and even gun manufacturers began to develop more sophisticated firearm technology designed to “prevent shootings, both intentional and unintentional, by children, thieves, and other unauthorized users.” But developers faced vehement opposition, not from anti-gun activists pursuing a once-vocal push for individual disarmament but from very loud and very angry gun rights activists. Technology development withered.  Both Colt and Smith & Wesson abandoned federal grants for such projects after suffering a “revenue-crushing boycott” from their customers because of the research. Of course, the mere fact that the federal government administered such grants led some to question whether the money for public safety technology improvement was really “a smoke screen to eventually take all handguns that are not smart guns out of the hands of law-abiding U.S. citizens...”  

Fifteen years and more than half a million American gun deaths later, the owner of Maryland gun shop “Engage Armament” planned to offer the Armatix iP1 for sale in 2014. This particular model looks a little sleek and futuristic, but otherwise seems like any other basic .22 LR caliber handgun with a 10 round magazine. But unlike all the other handguns on the Engage Armament shelves in May of 2014, the Armatix iP1 comes with a wristwatch. And unless the person who handles that firearm also wears the accompanying wristwatch, the weapon will not fire. The Armatix iP1 represents the first retail-ready “smart gun,” a term used to describe “firearms equipped with small embedded computers that are supposed to enhance safety by preventing anyone other than authorized parties from firing the weapons and, in some cases, by ensuring that the guns only fire when aimed at inanimate targets.” Engage Armament’s owner, Andy Raymond, thought that selling the Armatix “smart gun” would expand the firearms market to people otherwise unwilling to own or handle conventional guns.  He called the ideal new customer “a lawyer in Georgetown with a high income and young children who has been on the fence about getting a gun because of safety fears.” But before he could even stock the German pistol for sale, protesters bombarded his shop with complaints and even death threats. A California shop also endured a “furious backlash” when it (briefly) put Armatix models on its shelves. Both shops quickly reneged on their initial plans to sell Armatix guns.  

The fear that “smart guns” will replace all conventional handguns is actually somewhat based in reality.  In 2002, New Jersey passed the “Childproof Handgun Law,” which required that the state Attorney General determine annually whether “personalized handguns” are available for retail sales purposes… [meaning that] at least one manufacturer has delivered at least one production model of a personalized handgun to a registered or licensed wholesale or retail dealer in New Jersey or any other state.” And 2.5 years after that determination, New Jersey must prohibit the sale or transfer of any handgun other than a “personalized handgun or an antique handgun.” Originally, lawmakers intended to further “the development of personalized handgun technology and reduce[] preventable gun deaths.” But in 2002, “smart guns” were merely a conception, the niche of a small number of tech companies; in 2014, they were a reality.  And with that reality has come the heightened intense criticism.  Suddenly, this obscure state law was being viewed as an apparent “gun control push.” Curiously, the New Jersey AG has declared that the Armatix iP1 does not fit the law’s definition of a “personalized gun,” so its sale would not trigger the prohibitive law. 

Loretta Weinberg, the New Jersey state senator who sponsored the Childproof Handgun Law, now concedes that it has hindered rather than encouraged the development of “smart gun” technology. In 2014, Senator Weinberg offered to repeal the mandate if the National Rifle Association publicly agreed “not to stand in the way of the technology.” And though it didn’t happen immediately, the NRA has officially stated that it “doesn’t oppose the development of ‘smart’ guns...[but] opposes any law prohibiting Americans from acquiring or possessing firearms that don’t possess ‘smart’ gun technology.” True to her word, now-State Senate Majority Leader Weinberg filed a bill that removed the provision mandating “smart gun” sales only and instead mandated every dealer in the state to stock smart guns (once available) as part of their inventory. And though the bill passed both houses of the state legislature, Governor Chris Christie issued a “pocket veto” in January of 2016 by refusing to sign it. Though not unexpected because Christie was still in the midst of a failing presidential campaign, Weinberg nonetheless called the pocket veto “a little mystifying, because…he keeps the current law on the books, which is much more stringent.”  

In December 2015, a Johns Hopkins survey showed that 60% of Americans would be willing to buy a smart gun if they were in the market for a new handgun. One former San Francisco police chief declared that he wanted his officers to be able to carry smart guns and even offered up his department as a potential pilot site for using the technology. Some estimate that the market for smart guns could be worth $1 billion. Yet despite these potentially very lucrative new markets and the New Jersey AG’s declaration that the Armatix model will not trigger the maligned law, the opposition to (or fear of) selling smart guns seems to persist.  In March 2016, I enlisted the help of friends and family across the country to contact 35 (mostly randomly selected) gun shops in California, Connecticut, Florida, Kansas, Massachusetts, Missouri, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Virginia, and Washington state. Not a single shop reported carrying Armatix models. One shop in Oregon offered to special order it, but warned that the price was “prohibitive.” A Connecticut gun shop passionately declared that it would “NEVER carry that type of gun… [and] that there are no smart guns.” A Washington state store “basically laughed [the caller] off the phone [and] made it clear she would not be carrying anything ‘like that’ in her store.” Another major national retailer in Connecticut stated flatly that it “won’t carry smart guns.” One retailer in Virginia told the caller that Armatix fires correctly “only 3 out of ten tries” and a Pennsylvania shop called the brand a “failed pipe dream.” Yet the Massachusetts Gun Control Advisory Board* certified the Armatix iP1 as meeting the state’s stringent statutory requirements, after an approved testing lab showed that the gun fired “the first 20 rounds without a malfunction [and] fire[d]…600 rounds with not more than six malfunctions.” Massachusetts has approved the model for sale in the Commonwealth, though apparently no dealers sell it.  Most retailers contacted indicated they had never heard of Armatix.

As of April 2015, only one person in the United States seemed to be selling Armatix: Doug, located somewhere in Nebraska, proprietor of “smartgunz.com.”  He wanted to keep his website, through which he legally sold Armatix models to other federally-licensed firearms dealers in other states, separate from his “brick and mortar business” and therefore declined to disclose his last name in the press.  But within hours, the pro-gun website “The Truth About Guns” outed Doug’s real identity and the name of his small shop, while simultaneously alluding to the “negative feedback” that the prior publicly-known Armatix sellers endured.  Smartgunz.com is now defunct.

Arizona, in April 2017, passed a law intended to preemptively ban a potential (albeit non-existent) “smart gun” mandate.  The state law prohibits requiring a person to use or be subject to “electronic firearm tracking technology,” defined as a device that uses “block chain” or a similar form of technology.  The sponsor of the bill explained that “he heard at a presentation at a conference that…the best way to regulate who can own and fire a gun is ‘block chain technology,’” so he wanted to ban it.  He claims the technology can “send out notifications if an unauthorized person tries to fire the weapon…’And that’s what I’m concerned about.’” While some have speculated that block chain technology – a sort of decentralized transactional system used primarily by digital currency companies like Bitcoin – could be utilized in smart guns, there is no evidence that any such product is even in development.  The fear that “smart guns” will one day mean the death of conventional firearms is so potent that Arizona enacted a law protecting itself against a non-existent mandate to use a non-existent technology.

Smart gun technology has not yet been perfected, due no doubt in part to the almost total lack of investment in the technology.  Recently, a hacker calling himself “Plore” succeeded in exposing security vulnerabilities of the Armatix model iP1 by extending the range of the watch’s radio signal and even disabling the locking mechanism with $15 worth of magnets. He went so far as to demonstrate exactly how to disable the safety features on a YouTube video, claiming that he isn’t opposed to smart gun technology, but that “If you buy one of these weapons thinking it’ll be safer, it should be… [The Armatix gun] really failed to live up to its side of the bargain.” 

Armatix has recently developed a prototype 9mm pistol – the iP9 – that can be activated with both the wristwatch and with an app, which would work at an unspecified “longer range” than the watch.  The model also provides an alternative unlocking model: the pistol grip acts as a sort of PIN pad. An authorized user “can unlock the gun by squeezing their fingers in sequences, which will enable the weapon to be fired until the same code is re-entered to turn it off.”  The company hopes that this model, more similar to what most law enforcement agencies already carry, will convince police and consumers who may have been skeptical of reliability to try the firearm. The company recognizes that getting law enforcement on board with using smart gun technology would likely lead the way to more widespread trust and interest. The company has also learned to emphasize that its products are “not here to replace other guns.” The Armatix iP9 was expected to be on the market sometime in 2017 but has not yet appeared.

The market does have some other “smart gun” technology available.  Kodiak Industries sells the “Intelligun,” which is not an independent firearm, but “a fingerprint-based locking system” that installs on any model 1911 handgun and will “unlock the firearm for operation immediately for authorized users.” iGun Technology Corporation has developed (though does not yet sell) a shotgun that operates only in the presence of a specially-equipped ring. Yet investment in these and other smart gun technology has remained virtually non-existent, even as the rest of technology has advanced exponentially since the 1990s.  The pro-gun lobby often espouses that smart gun technology is unproven yet it also opposes investment in research that could improve the technology.

In January 2016, President Barack Obama quipped that guns should have fingerprint recognition capability if his cell phone does and ordered federal government agencies to “conduct or sponsor research on digital devices that would reduce gun accidents and unauthorized use.” Three months later, the Departments of Justice, Homeland Security, and Defense announced a partnership with numerous law enforcement agencies at all levels of government to create “baseline specifications” to “outline…a clear description of what law enforcement expects from smart gun technology, particularly with regards to reliability, durability, and accuracy.”  By recognizing that buy-in to smart gun technology from the law enforcement community was vital to its continued existence and development, the Obama administration made a bold step towards encouraging investment in safer gun technology.  In November 2016, the National Institute of Justice released the “Baseline Specifications for Law Enforcement Service Pistols with Security Technology,” which reflected law enforcement concerns about allowing security access by more than one person, not increasing the time required to draw and fire, and defaulting to a “fireable” state if the security device malfunctions.  Undoubtedly due in large part to releasing the report at the time when the Obama administration was giving way to the Trump administration, no action has come of the reports. Some technology innovators initially expressed skepticism about whether Obama’s directive would lead to a viable market, partly because their presumptive consumer base remained so vocally hostile to the idea. Now almost two years later, their skepticism seems justified.

Despite the current dearth of financial support for the “smart gun” industry, this advancing technology could hold promise in reducing the number of gun deaths – more than 33,000 in 2014 – in the United States.  As some critics are quick to point out, smart guns obviously are not a panacea for America’s grossly disproportionate gun deaths. But with improved technology, clarified laws, and an adjusted attitude that no longer treats smart guns as a potential “Trojan horse for gun grabbers,” “smart guns” could hold the potential to reduce at least some of these appallingly high rates of gun deaths in the U.S. 

*In the interest of full disclosure, I served as counsel to the Massachusetts Gun Control Advisory Board at the time the Armatix model was approved.  I was not a voting member and have never had any financial interest in Armatix or any other related entity.

Recent Study Shows Stronger Firearms Laws Associated with Fewer Fatal Shootings by Police

By Elisabeth J. Ryan

In 2015 and 2016, at least 2239 people were killed by police in the United States, overwhelmingly by gunshot.  But a recent study shows that fatal shootings by police are half as common in states with stricter firearms laws than in those with the most permissive laws.  Firearm Legislation and Fatal Police Shootings in the United States (by Aaron J. Kivisto, Bradley Ray, and Peter L. Phalen), published in the July 2017 issue of the American Journal of Public Health, primarily used data on police shootings collected by British newspaper The Guardian (as no official nationwide database exists) and a numerical system indicating the strength of a state’s firearms laws.  Taking into account laws such as those instituting stronger background checks, carrying firearms in public, and addressing gun trafficking, the study ranked states based on the strongest firearms laws (the highest being California with a score of 31) to the weakest (Arkansas, Idaho, and Kansas with 4).  “[E]ach 1-point increase in firearm legislative strength was associated with a 4% reduction in mortality.” States with the strongest firearm laws had rates of fatal police shootings more than 50% lower than in states with the weakest firearm legislation.  This association remained even after controlling for age, education, violent crime rate, and household gun ownership rate.