Can Red Flag Laws Help Prevent Mass Killings?

The shooting in a Colorado LGBTQ bar Nov. 19, 2022, in which five people were killed and at least 25 injured, is the latest mass shooting in the U.S. and it has reignited the debate over red flag laws and their effectiveness in stopping these kinds of mass killings. Police have yet to determine a motive for the killings, but it is clear that the suspect had a history of violent plans, having allegedly threatened to attack his mother with a homemade bomb more than a year before the attack at Club Q.

The suspect was arrested in June 2021 in connection with a bomb threat that led to a standoff at his mother’s home, according to a news release from the El Paso County Sheriff’s Office at the time.

This has led to questions over why that earlier alleged incident did not trigger Colorado’s “red flag” law – something that may have prevented him from acquiring the AR-15-style semi-automatic weapon that police say was used in the Club Q attack. But there is reportedly no public record indicating that law enforcement or any family member acted on that threat and petitioned the court.

The Q nightclub shooting occurred in a county where the sheriff has openly opposed Colorado’s law and has previously stated that his officers will not petition for an order except under “exigent circumstances.” The county has declared itself a "Second Amendment preservation county," in the belief that gun safety laws are unconstitutional.

In another case, from 2019, in California, the manager of a car dealership contacted police and described a scary situation. An employee allegedly had confided to a co-worker that if he was fired from his job, he would shoot his supervisor and other employees, though he would warn the co-worker in advance so he could escape.

Thanks to the red flag law that California enacted in 2014, the police could take action right away, without having to charge the employee with a crime. The cops obtained a court order and the next day seized five firearms. The court subsequently issued another order, allowing authorities to hold on to the weapons for a year.

That case, described in an article by University of California Davis researchers published Aug. 20, 2019, in the journal Annals of Internal Medicine, is an example of what many advocate as a way to prevent the mass shootings that have devastated the U.S.

What Are Red Flag Laws?

Red flag laws are designed to give authorities a way to intervene and take guns away from a person who is perceived as a possible threat. Also called extreme risk protection orders (ERPOs), these laws can take away guns even if the person doesn't have a criminal record or history of being institutionalized for mental illness, or other factors that might show up in the federal instant background check system and prevent him or her from buying a gun from a dealer. Loopholes and omissions in state records submitted to the background check system often have enabled mass shooters to obtain guns, even when they should have been disqualified.

"This is about putting protocols in place, so that when an individual is identified as potentially being a threat to themselves or other people, police and courts would have the authority to remove firearms," explained Daniel J. Flannery, director of the Begun Center for Violence Prevention Research and Education at Case Western Reserve University in Cleveland, when we interviewed him in September 2019.

According to Flannery, red flag laws try to strike a middle ground between preserving public safety and individual rights. A person who's flagged isn't arrested or charged with a crime, and authorities have to be able to convince a judge that their possession of guns poses a risk. And the person has an opportunity to get the weapons back at some point.

"But there's a due process piece to that, so that it's not automatic and not permanent," Flannery said.

Which States Have Red Flag Laws?

So far, red flag laws have been enacted by 19 states — California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington — and by the District of Columbia, according to Everytown for Gun Safety Support Fund, a group that does research and advocates measures to reduce gun violence.

In Florida, where a red flag law was enacted in 2018 in the wake of the Marjory Stoneman Douglas High School shooting where 17 people were killed, authorities have filed 8,162 petitions through the end of 2021 to take guns away from people.

Red flag laws have attracted strong public support. A Washington Post-ABC News poll conducted in early September 2019, for example, found that 86 percent of Americans supported allowing the police to take guns away from people whom a judge finds dangerous. That included 94 percent of Democrats, 85 percent of Republicans and 82 percent of independents. On May 25, 2022, a Reuters/Ipsos poll of 940 people conducted the day after the Uvalde shooting, found that 70 percent of participants supported red flag laws.

Red-flag laws have come into sharper focus since the bipartisan gun deal signed into law June 25, 2022, by President Joe Biden, which was aimed at getting more states to adopt the measures by improving public education about the laws in states that have them and providing a legislative framework and implementation grants.

In August 2019, President Donald Trump, who otherwise had largely opposed gun control, indicated his support for red flag laws. On the other side, the National Rifle Association's website features this May 2019 article that criticizes existing red flag laws as violating gun owners' Second Amendment rights.

Map of U.S. states with red flag laws — To date, red flag laws have been enacted by 19 states and by the District of Columbia. (States in red have red flag laws. Oklahoma, in blue, passed an anti-red flag law in 2020.)
Wikimedia/Blank_US_Map.svg: User:Theshibboleth

Do Red Flag Laws Work?

Whether or not red flag laws do much to prevent mass shootings is a more difficult question to answer.

The 2019 study by UC Davis researchers cited 21 cases in California in which a court issued an order to seize guns "after the subject of the order had made a clear declaration of intent to commit a mass shooting or had exhibited behavior suggesting such an intent." But it's really not possible to prove conclusively that any of the individuals actually would have committed these acts.

Jeffrey Swanson, a professor of psychiatry and behavioral sciences at Duke University School of Medicine, wrote this Washington Post opinion piece, in which he argued that red flag laws aren't necessarily going to prevent killings by mass shooters, except in instances in which an "alert citizen" notices that an angry young man is amassing an arsenal.

Nevertheless, Swanson supported such laws, because he and other researchers have found strong evidence that they reduce another sort of gun violence that cumulatively inflicts a much higher death toll — suicide by firearm. In this 2017 article about Connecticut's red flag law, he and colleagues calculated that for every 20 guns seized through a red flag law, one suicide is prevented.

"Almost all of these laws — they really have been a legislative response at the state level to public concern and outcry over mass shootings," Swanson explained. "But ironically, when they're put in place, the main thing they're used for is suicide concern."

For that purpose, red flag laws manage to plug the loopholes that allow people who are suicidal, or eventually become that way, to obtain guns. "We focus all this attention on the point of sale, people who have felony criminal record or mental health record," Swanson said. "Those rules are too narrow and too broad. They identify lots of people because they had an involuntary commitment 25 years ago and won't hurt anybody, and they also fail to identify people who do pose a risk." Swanson has found that 72 percent of gun suicides in Florida would have been able to legally purchase a gun on the day that they took their lives.

Preventing suicidal people from getting guns saves lives, because research shows that people who try committing suicide by other methods end up surviving 80 to 90 percent of the time, Swanson said. But with a gun, they're effective at killing themselves almost all of the time.

"From the picture of public health, that's a good enough reason" for red flag laws, Swanson said.

Even so, a red flag law might stop a few mass killings, if, say, the neighbor of a potential mass shooter notices that he's acting strangely and has amassed an arsenal of weapons. And as long as weapons suitable for mass murder remain readily available in America, it might be one of the few options available for protecting the public from more carnage.