Everything You Need to Know About Red Flag Laws

In June 2019, a Ford dealership mechanic, about to lose his job for drunkenness, threatened to kill a supervisor and brought guns to work. Authorities were called but could not bring criminal charges under the circumstances. Law enforcement sought a gun violence restraining order under California’s red flag law, which resulted in the temporary seizure of seven rifles, three shot guns, four handguns, and high-capacity ammunition magazines. The temporary cool-down afforded by the order most likely saved lives at the dealership.

In June 2017, a Tennessee father received a suicidal text message from his son, who had a history of mental illness. The father urged authorities to at least take action to temporarily remove his son’s guns for safety. Tennessee had no red flag laws, so the police told the father they could not legally do anything and, after checking on the son, decided he would be okay. A few months later the son went to a church and shot seven people, killing one.

With each mass shooting in America, people argue for red flag laws as part of gun reform solutions. But for all their popularity as a talking point, many people do not really know what red flag legislation actually entails. That leads to numerous misunderstandings among advocates on both sides. Most people probably know that, if a person’s behavior triggers some sort of red flags, these laws would allow the person’s guns to be taken away. This cursory perception raises reasonable concerns and inflates expectations. Learning how red flag laws work and what they can realistically accomplish greatly clears up most of those concerns and helps put the legislation in its proper place as a tool toward public safety. In addition, a better understanding of the laws makes us aware of what options exist and makes us more likely to use them properly.

What Are Red Flag Laws, Anyway?

Seventeen states1 and the District of Columbia have passed some form of red flag laws allowing for extreme risk protection orders or gun violence restraining orders. Only after recent tragedies did red flag legislation surge in popularity. Twelve of those seventeen states passed their red flag laws after the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida and the rise of the March for Our Lives movement. Prior to 2018, red flag bills languished in various forms for years in many of those states.

Michigan is one of several states that has not passed red flag laws but has had proposed legislation under consideration for years. Third-term Michigan Representative Robert Wittenberg (27th Michigan House District) founded and chairs the Michigan Legislative Gun Violence Prevention Caucus and holds a Michigan concealed pistol license. In each of his terms, the representative (a Democrat) has proposed red flag legislation, including current House Bill 4283, which he drafted in consultation with Republican Oakland County Sheriff Michael Bouchard. Representative Wittenberg proposed the current legislation as one common sense way to reduce gun violence in Michigan. “We don’t pretend to think that this is going to solve all of our gun violence problems in this state and around the country,” Wittenberg told me, “This is just one more tool for family members and law enforcement to have… to prevent death.” 

Wittenberg describes his state’s proposed red flag legislation as something that addresses both a public safety need and the concerns for an individual’s rights. “If someone is a threat or a danger to themselves or someone else, it is a mechanism by which a family member or law enforcement can petition a judge, present evidence, and have an order granted, based on sufficient evidence, to temporarily seize weapons from someone who owns weapons and/or prevent someone from purchasing weapons. And this is all done temporarily. So, it is not an indefinite time frame. The person whom the order is served against, they are actually given an opportunity to petition the court to get their weapons back. There are also penalties that are in place if someone is trying to initiate an order frivolously or to try to harass someone.”

Opponents of red flag laws argue they deny due process and violate Second Amendment rights. Some gun rights extremists have painted dire scenarios on social media, where law-abiding, God-fearing Americans have their guns snatched away by a vindictive neighbor. Then they, their wives, and children all die in a bloody massacre because they had no gun with which to defend against a home invasion. While this storytelling evocatively stirs fears among the gun-owning populace, the fiction does not correctly depict how red flag provisions work.

Even conservative think-tank The Heritage Foundation concedes that red flag legislation can be crafted so as not to infringe on Second Amendment rights. No law nor its execution is perfect. However, the laws governing extreme risk protection orders are structured to prevent abuse and protect the rights of gun owners while offering Americans a previously unavailable tool proven to save lives. “What we are trying to do, is to be more proactive instead of reactive,” says Wittenberg. “We want to try to prevent these things from happening in the first place.”

However, in order for the laws to be well written, they first have to be debated. Under Michigan term limits, Wittenberg is serving his last term in the state’s House of Representatives and facing his last chance to pass this life-saving legislation for which he has passionately lobbied since his first term in 2015. While Wittenberg has proposed red flag laws during all three of his terms in the Michigan legislature, never once has the Republican-led Congress permitted the bills to make it onto committee meeting agendas. Wittenberg has tried to work with colleagues to address their concerns. Each iteration he has introduced has included refinements, and he remains willing to further tighten even his current bill. However, Wittenberg explained to me that for now, his hands are tied: “Once you introduce the legislation, there is nothing you can do to amend it, unless it actually comes up for a committee hearing.”

For years Republican lawmakers in Michigan have stonewalled all gun reform legislation and ensured red flag bills stay off of committee schedules. “You are seeing at the federal level bipartisan support, and in other states, bipartisan support, but, unfortunately, here in Michigan, only the Democrats have been really outspoken on it. I’ve had conversations with some of my Republican colleagues in the legislature who are supportive of the concept but not willing to publicly talk about it,” observed Wittenberg. However, things may be changing. According to an August 2019 Washington Post-ABC News poll, 86% of Americans and 85% of Republicans support red flag laws, which have passed in some states with bipartisan support. In the federal government, prominent Republicans such as Senators Lindsey Graham and Marco Rubio have begun to push for red flag laws at state and national levels. Even President Trump has spoken in support of these measures, although his position on gun laws often shifts. In the Michigan legislature, Wittenberg noted, “After what happened in Texas and Ohio, I got a call from a few different colleagues of mine who were Republicans who said, ‘Tell me more about your red flag legislation.’”

Wittenberg speaks at events, holds round tables, and attends town halls to explain his proposal  to the public. “Actually, walking through the specifics of the legislation I think has been very helpful,” he told me. Wittenberg has found having face-to-face conversations reaches even those who strongly argue against these measures, noting the biggest issue is that people are just not familiar enough with the legislation. “It’s just what they had heard, the talking points that are out there. As I walk them through, they’re like ‘Oh, that makes sense, that makes sense.’… I am not able to have those conversations with everyone, but I do try to have that conversation with as many people as possible.” Proof of that comes from a recent town hall on gun violence which Wittenberg attended. From start to finish, a crowd of angry gun rights advocates and pro-Trump supporters shouted down anything said by Wittenberg or his fellow legislators. However, afterwards, Wittenberg took the time to meet with some of those same people one-on-one, and through explaining the process, was able to allay many of their fears and concerns.

The existing red flag laws in some states  and proposed bills in others differ slightly from each other, but they have many elements in common. In speaking with Representative Wittenberg, he described the laws as “trying to minimize the amount of damage or lives that are lost when a horrible situation happens” by creating a mechanism that allows for a proactive, instead of a reactive response. At the same time, Wittenberg noted the laws have been crafted carefully: “We don’t take it lightly, because it is someone’s Second Amendment rights.” 

Wittenberg’s summary of the Michigan bill highlights the key features common to the majority of proposed or existing red flag legislation. Essentially, these laws provide a mechanism by which the courts can issue extreme risk protection orders, sometimes called gun violence restraining orders or other similar names. The commonalities of these extreme risk protection orders are:

  • They are a form of protective order, which is a form of injunctive relief and can include restraining orders or orders preventing people from going to specific places or doing specific things.
  • The order is sought against someone who poses an immediate risk of danger to themselves or others.
  • The petition seeks to remove guns already owned and/or to prevent someone from purchasing new guns.
  • Only a very narrow range of individuals may request such an order.
  • The petition requires the presentation of evidence, and a judge must determine that the evidence is sufficient to merit such extreme action before an order can be issued
  •  The person against whom the order is sought has the right to defend themselves and present evidence in court.
  •  The order is in effect for a finite, limited amount of time, normally no longer than six months to one year.
  •  In true emergency situations, there are provisions for ex parte emergency orders, with a requirement that the matter be revisited with the person present no more than a few weeks later.
  •  There are penalties for falsely or frivolously seeking such an order, to discourage abuse.

Protection Orders Are Nothing New

Gun owners fear law abiding citizens may lose their guns long-term to an arbitrary new legal process, without a judge’s approval or due to judges rubber-stamping spiteful requests from random citizens. Far from being an arbitrary new process, red flag laws do not tread on entirely new legal ground. Extreme risk protection orders fall within a family of judicial relief which includes temporary restraining orders, personal protection orders, and permanent injunctions. For example, a person may be ordered not to compete with a former employer’s business. An abusive ex may be ordered not to come within a certain distance from a former partner, or the partner’s home, or workplace. Someone showing severe mental illness may be ordered into psychiatric evaluation or treatment.

Laws allowing injunctive relief have existed for some time, so the courts have some guidance when it comes to assessing such requests, including precedents and even Supreme Court cases addressing the constitutionality of the process. It is well understood that the courts cannot take lightly the extreme nature of ordering the restriction of personal rights, such as the ability to go where one wishes. Judges also know they may face discipline for failing to properly apply the law, so they have incentive not to abuse it in the case of red flag legislation, and there is recourse should they do so. 

“There’s no due process” is one of the biggest concerns Representative Wittenberg encounters when discussing extreme risk protection orders. To have due process means the individual is protected from being arbitrarily deprived of life, liberty, or property. Red flag laws do provide for due process, and nothing is decided arbitrarily. The goal of red flag legislation focuses not on the average citizen, but those who pose an extreme risk to themselves or others. A person seeking an order has to prove that extreme risk exists to the court. 

“In order to take someone’s property you have to have a judge grant an order,” Wittenberg explained. “You have to present evidence and you have to show proof as to why this person is a threat.” The gun owner also has the ability to defend themselves and present their own evidence, and a judge must assess all the evidence and only grant an order if appropriate based on that evidence. That said, one of the reasons why it is important to understand the process is so that we can be on the lookout for whether it is being applied improperly and ensure that gun owners worst fears about these laws are not being born out. Most states require clear and convincing evidence for a judge to issue an order, and even then, the order usually cannot be in effect for longer than one year. Often, as with the Michigan proposed law, the person may also petition for early termination of the order after it is issued.

Most red flag legislation also allows for orders to issue ex parte, meaning the individual is not present to defend themselves. People can only pursue such orders on an emergency basis. As Representative Robert Wittenberg clarified, an ex parte order could only be sought “if the person is an imminent threat and delaying the implementation of the order will cause irreparable harm to the person or to other people.” He further explained: “That’s obviously an extreme situation, and obviously, when there’s an extreme situation, time is of the essence. We have to get something done right away.” 

While it may seem that granting an ex parte order violates an individual’s due process rights, the Supreme Court has long held that it is not necessary to hold a hearing with the individual present prior to depriving the individual of property as long as there is a right to meaningful hearing afterwards within a reasonable time frame. If an ex parte extreme risk protection order is granted, it lasts for a very short time, during which the court schedules a hearing with the individual present before entertaining an order for a longer time span. Most states only allow ex parte orders regarding guns to last two weeks or less. If the person does not receive a hearing during the ex parte order’s time frame, then the order usually just expires, and the guns can be returned.

Providing Solutions Not Otherwise Available

Media attention often focuses on the potential for red flag legislation to prevent mass shootings. However, extreme risk protection orders also recognize that the danger posed may be to the person themselves. Suicide comprises a large portion of the gun violence statistics in the United States. According to the CDC, slightly more than half of firearm related deaths in 2017 were suicides. A recent study found that suicide consistently accounted for 60% of the deaths due to firearms from 1999 through 2017. Extreme risk protection orders are one of the few legislative efforts regarding firearms that provide any means of preventing the most significant source of gun deaths in this country.

Gun advocates often argue that, rather than pass new laws, we should just better enforce existing ones. However, Rep. Wittenberg pointed out, “Our other laws are kind of lacking when it comes to this.” Without the red flag laws, there simply is no mechanism under the law for weapons to be temporarily taken from someone unless they have broken the law with that weapon, at which point the police may seize it as evidence. Law enforcement “can’t seize [someone’s] property unless there’s an order granted by a judge or by jury trial,” noted Wittenberg. Absent red flag laws, judges do not usually have the ability to order firearm removal unless there is some criminal proceeding, and not necessarily even then.

Wittenberg described the frustration police officers have expressed to him over having come across dangerous situations where the best course of action would have been to take someone’s guns and return them “when the person was better,” but where, without red flag provisions, the police would be breaking the law in doing so. Criticisms of the handling of the Parkland shooter echo this problem. The young man’s behavior raised several red flags. However, red flag laws were only passed in Florida in response to the shooting. Because the teen had not yet broken any laws, Florida law enforcement had little recourse prior to the shooting, despite repeated reports and warnings.

In a story with a less tragic outcome, Vermont police arrested a young man just days after the Parkland shooting for allegedly planning a similar massacre at a school. The individual called his diary “The Journal of an Active Shooter,” with entries detailing the guns needed and whom he intended to target first. At the time, Vermont had no red flag laws. Chilled by the details of the police affidavits in the case and recognizing the limits of what the state’s current laws could accomplish, the state’s Republican governor Phil Scott changed his views on gun safety regulation, and signed red flag provisions into law in Vermont. Proving the governor’s concerns were well-founded, the court dismissed the attempted murder charges against the teen for insufficient evidence, and he was released from custody, because planning did not rise to the level of an “attempt” under the state law. However, the timely enactment of the new red flag laws meant the first order issued under the new legislation prohibited that teen from possessing guns for six months at the time of his release.

Even more so than law enforcement, family members likewise have no recourse under the law without these provisions. At a recent gun violence town hall, Representative Robert Wittenberg relayed the story of the parents and sister of military veteran Ben Strobel. After several tours overseas, Strobel exhibited signs of suicidal ideation. The family sought to get him the help he needed but worried he might commit suicide in the intervening time. The family visited every local gun store in their Michigan community to beg them not to sell Strobel a gun. Every shop owner expressed sympathy but had the same response: if the man wanted a gun, they had no legal justification for refusing him. Shortly thereafter, Ben purchased a gun and took his own life. An extreme risk protection order could have provided the family invaluable time in which to try and get their son and brother the help he needed.

Protecting the Individual’s Rights

Every state law regarding extreme risk protection orders limits who may bring a request for such an order. Most states only allow law enforcement or family members to petition for an order. Three states and the District of Columbia allow mental health professionals, and a few others to also bring an action2. Another three states only allow law enforcement or state officials to file a petition3. Contrary to critics’ concerns, no existing law allows random citizens or even vindictive neighbors to file, and only one state, Hawaii, allows former dating partners4 or co-workers to file. In its current form, Michigan’s proposed bill would allow requests by spouses, family members and law enforcement, but also includes former spouses, persons with a child in common with the individual, a person in a dating relationship with the individual, or someone living with the individual. The bill attempts to recognize that in today’s society close and intimate relationships with a person in crisis may not be limited to the normal definitions of family.

Representative Wittenberg described to me how Michigan’s proposed red flag legislation has changed in the three iterations of the bill he has introduced during each of his three terms in office. “We’ve kind of tightened up who can initiate the order. We were a little more broad as to who could initiate the order, and then we obviously narrowed it down to family members and law enforcement.” In reaching across the aisle to his Republican colleagues and in speaking to Michigan gun owners, Wittenberg heard concerns about how family may be defined and who may file for a petition under the bill, and has indicated willingness to consider narrowing the definition to further protect individual rights should the bill ever be scheduled for debate in committee.

Many states’ laws also protect the target of an order by imposing penalties on those who file frivolously or for the purposes of harassment. Upon recommendations from Sheriff Bouchard, Representative Wittenberg added similar penalties to the Michigan bill. The provisions mirror the penalties for filing a false police report, and the penalties escalate for repeated offenses. “We have penalties in place if someone is trying to do it to harass you or doing it frivolously.” Wittenberg reiterated, “We don’t take this lightly. We know this is someone’s Second Amendment right. And so we make sure that there are protections in place and that we take it very seriously as to how we crafted this legislation.”

Additionally, seeking an extreme risk protection order is usually civil action. “There are no criminal charges,” explained Wittenberg about Michigan’s bill, “There is nothing that goes down on your permanent record.” However, since most actions will be linked to mental health questions about the individual, legitimate concern still exists in light of society’s tendency to stigmatize both mental illness and mental health issues. Once having been subject to such an order, someone may face the possibility of it serving as a black mark on background checks, even though not part of a criminal record, when it comes to employment, education, or even immigration and visa opportunities. The fear of having that kind of black mark may also drive gun owners to attempt to hide mental health issues or avoid facing them for fear they will result in gun confiscation. That says a lot about how the U.S. needs to improve its attitudes about mental and emotional health issues, so that we stop stigmatizing and emphasize that they are merely health issues which should be approached similarly to handling any physical health issue. However, it does not eliminate the concern. 

Arguably, those potential black marks would also be worse if the person were subject to a personal protection order or some other order limiting their personal freedom than one temporarily removing guns. When faced with chosing between the interim step of temporary gun removal or harsher responses or outcomes, such as involuntary restriction of movement, involuntary commitment, or a life lost to suicide or incarceration for murder, red flag laws seem to offer the better alternative.

Some opponents, like Jim DeMint, a leader of the Tea Party Movement and former president of Right-leaning The Heritage Foundation, argue that the process unfairly burdens the poor or [underprivileged, because the civil, instead of criminal, nature of the cases means the gun owner is not guaranteed attorney representation. Most defendants fare better with attorney representation, but, depending on their circumstances, may not be able to afford one or understand how to retain one. However, the same is true of personal protection orders, other restraining orders, and almost any type of civil litigation that Americans face. It would seem a better solution to address the systemic inequities that bar access to adequate legal representation than to reject the entire civil litigation process.

However, to gun owners still worried about the potential abuse of the judicial process, Wittenberg reminded us that our society has acted for hundreds of years in reliance on the judicial system to work properly. “A judge currently in our legal system is the person who can grant an order to lock you in jail. They can actually take away your liberty. They can take away your personal freedom. So, it’s already in the hands of our judicial system to do that. We trust them to do that, and we can also trust them in this instance.”

Red Flag Laws’ Effectiveness

In addition to misconceptions about the mechanics of extreme risk protection orders, people often do not properly understand their real-world application. Red-flag laws do not work as a cure-all for gun violence or even mass shootings in this country. In all fairness, proving any measure is effective against mass shootings is difficult. For all the horror they engender, mass shootings represent only a small portion of gun violence or gun deaths in a given year, making it difficult to assess what factors may be affecting them and when.

The Heritage Foundation admits that well-crafted red flag laws could have prevented many high profile mass shootings. We can surmise that had extreme risk protection orders been sought, they most likely would have stopped some mass shootings. For example, the perpetrators of the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut5, and the 2018 Marjory Stoneman Douglas High School shooting in Parkland, Florida gave off several warning signs. The prior behavior of the man who eventually shot U.S. Representative Gabrielle Giffords, killed 6 people, and wounded 12 more in Tucson, Arizona in 2011 caused his parents to be so concerned as to hide his shotgun and disable his car at night.

Yet motives for mass shootings vary greatly, and not all mass shooters exhibit behavior sufficient to merit seeking an order. The 2019 Walmart shooter in El Paso, Texas did not give off clues of the danger he presented until just before he began shooting. In the deadliest mass shooting in America, at the 2017 Route 91 Harvest country music festival in Las Vegas, Nevada, a shooter killed 58 people and wounded 422. Prior to the shooting, the perpetrator did not raise the kind of red flags which would have triggered an extreme risk protection order. Only hindsight makes his behavior alarming. The perpetrator of the 2019 Oregon District shooting in Dayton, Ohio spoke of killing people regularly for years, but never seemed inclined to act upon it, highlighting the gray area of knowing when behavior merits court intervention and when it does not. That gray area gives rise to some of the concerns people have about extreme risk protection orders, concerns the judicial process required for them is meant to address.

Any study of the effects of gun violence legislation on mass shootings also runs into the difficult hurdle of examining negative space. It is very hard to say how many such incidents were prevented for the simple fact that they did not happen. Even when someone does raise red flags sufficient to merit an extreme risk protection order, we can never say for certain that they would actually have committed a massacre. A study of cases brought under California’s recent red-flag law noted 21 instances where an order was sought to prevent a mass shooting, and none of the threatened shootings occurred. Obviously, such a study cannot state definitively that the red-flag law had an effect, but it does suggest that the legislation may offer a useful tool.

As mentioned previously, suicides make up the majority of gun violence deaths in this country. Suicide rates have increased in almost every state in the U.S. since 1999. Representative Robert Wittenberg’s state of Michigan has seen a rise in firearm suicide deaths that parallel the state’s overall rise in suicide rates. Suicide tends to be an implusive act, not necessarily revisited once thwarted. Of those who attempt suicide and survive, 70% never try again. Because they kill so easily and efficiently by design, once firearms become involved, the chances of survival drop dramatically. While guns are used in about 6% of suicide attempts, they account for over half of deaths by suicide6. Approximately 85% of suicide by firearm attempts result in death, while suicide attempts by any other method drop to a less than 5% success rate7. As this nation ponders how to alter its trajectory regarding its views about emotional health and access to resources, the means of attempting suicide matter as well. Extreme risk protection orders are not a cure-all, but they can buy families time while they attempt to help a family member in crisis.

But do red flag laws actually reduce suicides? According to some gun rights activists, even if firearm suicide rates go down, rates by other methods will be merely go up, i.e., a replacement effect8. However, a study looking at the two states who have had red flag laws for more than 10 years, Connecticut and gun loving Indiana, found this not to be the case. The study carefully made apples-to-apples comparisons within the states as well as comparing the numbers with those in states that had similar suicide rates prior to the red flag laws’ enactment. In Indiana, the results showed a clear decrease in firearm suicides and suicides across the board.

Connecticut offered more difficult numbers to analyze. People did not really seek orders under the law until after the 2007 Virginia Tech shooting. Before that time, there was no significant change in gun suicide rates. Afterwards, when the laws started being utilized, gun suicide rates decreased. The study also found that the overall suicide rates by other methods went up during that period in Connecticut, which at first glance suggests a replacement effect, causing the study’s authors to conclude mixed results on that front. However, the study showed the comparison states without red flag laws that were used to analyze Connecticut experienced a similar rise in other suicide methods. The data seems to suggest some factor other than replacement effect very likely drove Connecticut’s increase.

Red flag laws may also save lives in domestic violence situations. American women are 25 times more likely to be killed by a gun than women in other high income countries9. In a domestic abuse situation, the abuser’s access to a gun makes it five times more likely they will kill their female intimate partner10. Federal law prohibits people who have been subject to a final domestic violence restraining order from possessing guns. But federal law does not necessarily give state law enforcement the authority to seize an adjudged domestic abuser’s firearms. To remedy that, several states adopted laws similar to the federal law. Representative Robert Wittenberg’s state of Michigan is not among them. In states like Michigan, extreme risk protection orders would afford law enforcement the opportunity to at least temporarily enforce federal law. They would also allow domestic abuse victims to obtain some form of protection in those instances where a threat exists, but a domestic violence adjudication has not yet sought or issued.

Saving Lives While Protecting Rights

Having a better understanding of red flag laws helps us better grasp what they can and cannot achieve and how they can be appropriately applied. Well-crafted legislation can respect individual rights while also increasing public safety. Indiana has open carry, right to carry, and recognizes concealed carry permits from all other states. Gun owners view it as a gun-favorable state, while the anti-gun violence organization Giffords Law Center scores the state a D- when it comes to gun laws. Yet, Indiana has had red flag laws since 2005. If Indiana’s red flag laws infringed on gun owner rights the way critics suggest, clearly Indiana would have done away with them by now.  

However, that’s not to say some concerns are not valid, especially on a case-by-case anecdotal basis. In Maryland, police shot and killed a man when they tried to serve an extreme risk protection order on him. The man met the police at the door with a handgun, but set it to the side. Upon finding out the reason for their presence, the man became angry and grabbed his gun again. When one of the officers tried to take the gun, the man fired it, and a second officer in turn fired at the man, killing him. To gun advocates, the tragic event justifies their fears. He had not broken any law, yet he lost his life. On the other hand, when faced with a lawful order served by the police, the man’s response was to take up his gun again. Police, it seems, were justified in shooting in self-defense in this instance. Perhaps, had the man had better knowledge of how these laws worked and his rights under them, he would have been less fearful, and tragedy could have been prevented. Hyperbole regarding this legislation does not help. Clear communication so that the public and the legal field understand how these laws work and what options are available to people better serves us here.

Gun advocates also voice concerns that red-flag legislation will be abused through overuse. So far, some local jurisdictions within a few states have used the laws more aggressively than other areas. However, for the most part, the laws are not being overly applied, with states only having dozens or hundreds of cases a year. The study of Indiana and Connecticut red-flag impacts found that the majority of the orders were sought to prevent suicides, suggesting most made these requests out of concern, not vindictiveness. Representative Wittenberg explained, “This isn’t just a way for anyone and everyone to just start to try to take weapons away from people that they’re mad at or they have a vendetta against. And we’ve seen that in other states—these orders are not used that frequently. But when they are used, they save lives.”

Red-flag laws can help reduce gun violence, but the key to crafting effective and non-abusive laws is understanding the process, making sure it is applied fairly afterwards, and making sure the public knows its options under those laws, both in requesting an order and defending against it. Representative Wittenberg summed up the legislation by saying, “We make sure that there are protections in place… We take it very seriously as to how we crafted this legislation to make sure that this is only happening in instances when someone is a threat to themselves or someone else, and we are worried about the danger that they pose to themselves or others That’s why we are trying to put this in place. It is a tool for family members and law enforcement to try to prevent tragedies from happening.”

Far from red flag laws being the knee-jerk reactions arising from gun hysteria that some assume, legislators like Robert Wittenberg show just how much care and consideration for all viewpoints have gone into crafting red flag legislation. His tireless efforts to explain the provisions and address concerns also show just how seriously lawmakers like him view not only the laws, but the public’s questions about them. Wittenberg has focused first and foremost on his community’s safety, for gun owners and non-gun owners alike. At the end of the day, Wittenberg’s work makes clear that red flag laws grow out of a respect for, not contempt  of, Second Amendment rights, as well as a need for common sense approaches that actually reduce gun violence. 

Michigan should set aside partisan polarization and seize the opportunity to pass meaningful gun legislation that manages to address the concerns of gun owners and gun safety advocates alike. The state should finally remove its red flag bill from committee purgatory and get it on track to become law. Seventeen states have already done so with few issues. The other thirty-three should learn from their example and follow suit, so that all Americans have the opportunity to prevent tragedies large and small. Whether employees of a California Ford dealership, Tennessee churchgoers, Florida high school students, or Michigan military veterans, lives can be saved by this practical legislation.

Footnotes

  1. California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington
  2.  DC Code § 7-2510.01; 2019 HI SB 1466; Md. Code Ann., Pub. Safety § 5-601; and 2019 NY SB 2451/ AB 2689. These other individuals include intimate partners, non-family household members, those who have a child with the individual, and school administrators.
  3.  Fla. Stat. § 790.401(1)(a), (2)(a); R.I. Gen. Laws § 8-8.3-1, et seq.; and Vt. Stat. Ann. tit. 13, §4051, et seq.
  4. Several states allow current dating partners to file, in an attempt to close the “boyfriend loopholes” often found in domestic violence situations, where a spouse has protections and options under the law, but other intimate partners do not. In an era where we recognize that domestic abuse extends also to significant others and dating partners, we have come to recognize such loopholes need to be closed. The proposed Michigan red flag law also would close this loophole, allowing a request by an individual who has or had a dating relationship, which the bill defines as “frequent, intimate associations primarily characterized by the expectation of affectional involvement” and excludes a “casual relationship or ordinary fraternization between two individuals in a business or social context.”

  5. At the time, Connecticut did have red flag laws, but it appears no one thought to use them in this instance. Lack of awareness of whether the option exists, in general, or if such laws have been passed in a particular state has likely led to more than one missed opportunity to save lives, which is yet another reason why it is so critical that we better understand these laws
  6.  Miller M., Azrael D., Barber C., “Suicide mortality in the United States: the importance of attending to method in understanding population-level disparities in the burden of suicide,” Annual Review of Public Health, 2012; 33: 393–408.
  7. Vyrostek S.B., Annest J.L., Ryan G.W., “Surveillance for fatal and nonfatal injuries - United States, 2001,” Morbidity and Mortality Weekly Report, Surveillance Summaries, 2004, 53(7): 1–57. Miller M., Azrael D., Hemenway D., “The epidemiology of case fatality rates for suicide in the northeast,” Annals of Emergency Medicine; 2004, 43(6): 723–30. Miller M., Azrael D., Barber C., “Suicide mortality in the United States: the importance of attending to method in understanding population-level disparities in the burden of suicide,” Annual Review of Public Health, 2012, 33: 393–408.
  8. Studies indicate that reducing access to highly effective methods of suicide reduces overall suicide rates, without evidence of equivalent replacement by other means. Great Britain offers a famous historical example. When the country switched from coal gas, which produces 10% - 20% carbon monoxide, to natural gas, which produces almost no carbon monoxide, suicides by carbon monoxide, such as using the oven to asphyxiate, dramatically decreased, while suicide rates by other methods only increased slightly.
  9. Grinshteyn E., Hemenway D., “Violent death rates in the US compared to those of the other high-income countries, 2015”, Preventive Medicine, 2019, 123: 20–26.
  10.  Campbell J.C., Webster D., Koziol-McLain J., et al., “Risk factors for femicide within physically abuse intimate relationships: results from a multisite case control study,” American Journal of Public Health, 2003, 93(7): 1089-1097.

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