Gun-violence restraining orders: How red flag laws work
Red flag laws may help prevent homicides, suicides and mass murders by taking firearms away from high-risk individuals
By Robert Whitson, PhD
As a police officer for 30 years, I worked a variety of assignments. I was always intrigued by the relatively large number of people with mental disorders patrol officers contacted on a daily basis. I am not a psychologist, but I completed my dissertation on psychopathy for my PhD in Criminal Justice, and I incorporate relevant psychological disorders into the college classes I teach.
The murders at Marjory Stoneman-Douglas High School reignited the debate about gun violence, mental health and how to prevent mass murders. Gun-violence restraining orders – also known as red flag laws – may help prevent homicides, suicides and mass murders by taking firearms away from high-risk individuals.
Mental illness definitions
Any Mental Illness (AMI) is a mental, behavioral, or emotional disorder that has varying degrees of impairment. Serious Mental Illness (SMI) is a mental, behavioral, or emotional disorder that substantially interferes with one or more major life activities.
Police officers deal with mentally ill people every day. The majority of people with a mental illness do not commit violent crimes, even though there is a positive correlation between people with a Serious Mental Illness and suicide. There is also a link between mental illness and some mass murders. The challenge is to identify those individuals with a mental illness who pose a high risk of committing a violent crime, and successfully treat those individuals.
According to the 2016 National Survey on Drug Use and Health, about 18.3% (44.7 million American adults) had Any Mental Illness and 4.2% (10.4 million American adults) had a Serious Mental Illness. These figures are deceivingly low. The survey did not include juveniles under the age of 18 or high-risk populations, including correctional facilities, mental institutions, nursing homes, or homeless people. If all of these at-risk populations were included in this survey, the percentage of people with Any Mental Illness may increase to 25% or more.
If the population of the United States is about 330 million people, approximately 82 million people will have some form of mental illness, with 13 million people suffering from a Serious Mental Illness.
According to the Centers for Disease Control, as cited by the American Foundation for Suicide Prevention, there were 44,965 reported suicides in the United States during 2016. For every suicide, there are about 25 attempted suicides. The present rate is 13.4 for every 100,000 residents, compared to only 10.9 in 2005. The highest rate occurred in the 45 to 54 age group. Firearms are involved in about one-third of female suicides and half of male suicides.
Police officers can place someone on a 72-hour psychiatric hold if the person is an imminent threat to themselves or someone else. The key word is “imminent.” A person must be a threat at that time. A psychologist will conduct an evaluation and determine if the person should be released or held more than 72 hours.
If a person is released, the person can regain possession of their firearms initially taken for safe keeping, unless the person was not legally authorized to possess firearms originally (due to a domestic violence conviction, felony conviction, or prior mental health commitment). This creates a problem for law enforcement officers who are trying to prevent someone from using a firearm to commit suicide and/or homicide. How does law enforcement prevent a high-risk individual from possessing firearms? The answer is red flag laws.
States with Gun-Violence Restraining Orders (Red Flag Laws)
Connecticut was the first state to enact red flag legislation in 1999. Florida just passed a red flag law in response to the Parkland school shooting. Other states with red flag laws are:
- Rhode Island
What a Red Flag Law allows
Red flag laws allow law enforcement (or in some cases family members) to take possession of a person’s firearms for safe keeping if there is probable cause to believe a person poses an immediate and present danger to themselves or someone else. A Duke University Study of Connecticut’s red flag law found 762 “risk warrants” were issued between 1999 through 2013. The majority of firearm seizures were focused on suicide prevention, not homicide prevention.
Law enforcement can’t simply seize a person’s firearms for no reason. A judge must issue a restraining order and the person has the right to a hearing and to appeal their case. In California, if a person refuses to relinquish their firearms, law enforcement must obtain a search warrant to take firearms and ammunition. Law enforcement can’t destroy or dispose of firearms without due process. Items are kept for safe keeping and a court may cancel the restraining order. The case must be reviewed periodically based on the time frame established within each state’s law, usually annually.
Professor Swanson of Duke University’s School of Medicine has spent his career studying mental illness and gun violence. In 2016, he published findings of a study of 81,704 adults diagnosed with schizophrenia, bipolar disorder, or major depressive disorder who received services in the public behavioral health system from 2002 to 2011 in Miami-Dade and Pinellas (Tampa).
De-identified records were researched for suicide, arrests for violent crimes (murder, assault, aggravated assault, sexual battery, robbery and kidnapping), and firearm involvement.
The results discovered 38% of violent firearm arrests and 72% of suicides involved individuals legally eligible to purchase and possess a firearm. This study indicated the need to prevent high-risk individuals from legally possessing firearms, which may be partially achieved via red flag laws.
Gun-violence restraining orders focus on the behavior of high-risk individuals who demonstrate signs of anger, violence and poor behavioral control usually associated with a mental illness, and who have access to firearms. Will red flag laws prevent homicides, suicides and mass murders with firearms? The answer is maybe. Share your thoughts in the comments section below.
American Foundation for Suicide Prevention. Suicide statistics.
Follman M, Aronsen G, Pan D. US mass shootings, 1982-2018: Data from Mother Jones’ investigation.
NAMI: National Alliance on Mental Illness. Mental health by the numbers.
Paglini L. How far will the strictest state push the limits: The constitutionality of California’s proposed gun law under the Second Amendment. The American University Journal of Gender, Social Policy & the Law, 2015, 23(3) 459-485.
Swanson JW, et al. Gun violence, mental illness, and laws that prohibit gun possession: Evidence from two Florida counties. Health Affairs; Chevy Chase, 2016, 35(6), 1067-1075.
The National Institute of Mental Health. 2016 National survey on drug use and health by the Substance Abuse and Mental Health Services Administration.
About the Author
Robert Whitson was a police officer in Boulder, Colorado, for 30 years, working a variety of assignments. He taught criminal justice at Metropolitan State University in Denver for seven years while working on a PhD in criminal justice. He presently teaches for a private university in Florida, where he has taught criminal justice for seven years. Contact him at email@example.com.