A Look at the State of Red Flag Laws After Buffalo

A Dispatch explainer.

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The recent massacre in Buffalo, New York, has brought “red flag laws” back into the spotlight because of the possibility the policy could have prevented the shooting. But what exactly are red flag laws and how many states in America have adopted them?

Red flag laws allow certain people to request that a court temporarily prohibit individuals from buying or possessing guns if they are deemed to be a threat to themselves or others by using an extreme risk protection order (ERPO). The orders can generally be obtained quickly in the short term during emergency proceedings where the subject of the order may not be present to defend themselves. However, they also usually require a more detailed hearing in order to be extended to a full year.

If an ERPO is granted, the subject of the order will be barred from buying guns and forced to give up any firearms he or she already owns for as long as it’s in effect. Connecticut was the first to implement a red flag law back in 1999 but their popularity grew in the aftermath of the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.

Currently 19 states and the District of Columbia have some form of this policy. All of them, except Florida’s, have passed in states controlled by Democrats or that have divided government.

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  1. Avatar photo
    Ben Connelly

    “They may also further dissuade gun owners from seeking mental health treatment if they fear their guns could be seized as part of the process. Clearly most people who attend therapy or counseling are not a threat to themselves or others and discouraging mental health treatment, even unintentionally, is likely to increase negative outcomes.”

    I hadn’t thought of that! Wow.

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  2. Duane Truitt

    Aside from concerns about infringement on one’s Second Amendment rights, as well as on our Fourth and Fourteenth Amendment rights, the other troubling aspect of these well meaning red flag laws is their potential abuse via false accusations and simple governmental incompetence. Russia, China, Nazi Germany, the Soviet Union, and most other dictatorships have habitually used accusations of mental incompetence, temporary or otherwise, as a pretext to harass, curtail the rights of, or even imprison dissenters. Particularly when such laws and their administration deny due process rights to the accused - as do most of these red flag laws.

    Balanced against these most vital of human rights is what has been found so far to be the unproven effectiveness of such laws in preventing mass murder or other violent crimes. The fact is that no such law can ever be proven to prevent such crimes - it is mere speculation.

    As frustrating as it is that ugly violent crimes continue to be committed by persons of questionable mental competence, there is really no solution. All we can do in most circumstances is to take the perps into custody and provide them treatment after the fact. That is reality. Beyond that, making mental health care easily accessible without the use of coercive laws that strip away our rights is the best that we can wish for.

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    1. Peter

      That last sentence says to me nothing will ever change and we’ll only continue to have mass shooting into the distant future.

      Their is very little or no American will to funnel resources and people into mental health.

      And it’s like we all accept it as is.

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      1. Duane Truitt

        That is correct … humans have never changed in hundreds of thousands of years, and never will change. A certain percentage will go psycho and commit heinous crimes. We have no choice but to accept human behavior for what it is, always has been, and always will be. Just because people wish there was a law that would prevent crimes like murder does not mean there is such a thing.

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  3. Craig Berry

    These are some very interesting comments to a very interesting story. What it all tells me is not groundbreaking, that there are no really good answers. Mass shootings of the type we saw in Buffalo are heartbreaking, gain a lot of news coverage (coverage I consume heartily, BTW, so I'm not blaming the media), but pretty rare. That doesn't mean we don't do everything we can to combat that within reason, but with the realization that they're very rare so it would be difficult to have a policy that would prevent these shootings without opening up a lot of other areas of concern about liberty and privacy.

    One thing is that, while I'm not a social scientist so maybe I'm speaking out of ignorance, I would find it difficult to point to a law and say, "That prevents mass shootings." Isn't it hard to prove a negative like that, one that relies on a spasmodic burst of violence rather than a community pattern? I'm almost certain a large number of people harbor fantasies of violence or have even spoken of their desire to commit violence, but how do we determine that Law A stopped these people from doing it?

    That being said I would think anything that slows down the guy from getting the weapon, like this Red Flag law, couldn't hurt. It's like a speed bump. Sure, the guy might go down the street and crank up the RPM's, but you slowed him down long enough for something else to intervene and perhaps prevent him speeding down that other street.

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    1. Kevin Brady

      That happen rarely, and yet they happen way more often in the United States than in any other country in the world. Either we have a culture problem, or a gun problem; I have a feeling it's both. We have +350 million guns throughout the country, so it's no surprise that you have these incidents (as well as regularly-occurring homicides and suicides by gun) much more often than in most places.

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      1. Avatar photo
        rlritt

        We have two powerful organizations, the NRA and Gun Manufacturers who promote macho gun ownership as a lifestyle.

        In Mexico and Latin America criminals come to the US to sell drugs and buy guns.

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      2. Craig Berry

        Yes, we are awash in guns. The problem is that there’s no real way to eliminate those guns unless we want to become China. And the culture thing is a big part of it as well. You have a lot of alienated people and a lot of legal and illegal weapons on hand. That’s a bad combo.

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        1. Avatar photo
          rlritt

          I'm sorry my next door neighbor, who I love btw, told me he has 6 rifles. He told me what kind but I don't remember and he does have licenses And he's old. He keeps them locked up. He says he needs them to protect his family......which consists of his wife and 4 cats. I think if he was limited to one gun, we wouldn't be like China.

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          1. Avatar photo
            Richard Maxton

            I am unaware of any 1 gun that would fit the parameters of all my particular needs. I can't conceal carry my hunting rifle or shotgun. But my handgun doesn't make a good hunting gun either. . .

            Should we likewise insist that everyone only own 1 car? 1 house? Just think of how positive that would be for climate change and the housing market!

            I vote no to all of the above, but your mileage may vary.

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  4. Avatar photo
    Aylene Wright

    Thanks for the explainer, but it occurs to me that the shooter here didn't actually have a gun at the time he was sent for a mental health evaluation. I can understand why it wouldn't occur to anyone to petition for a ERPO just in case he DID eventually try to buy a gun.

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    1. P Satter

      That is a good point. A case could be made for expanding the ERPO to include future purchases for young people threatening to shoot up a school. (As a parent of sons, these threats are not normal joking). But you are right, taking away the future ability to purchase potential guns for some length of time would seem to be an expansion from how ERPOs are currently applied.

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  5. Avatar photo
    Aggiewill@comcast.net

    since there is no negative effect from having the laws, you don't need studies. Pass the laws and count the number of ERPOs issued. Every one means people are paying more attention to someone who could be dangerous or needs help.

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    1. Avatar photo
      monocularvision

      There were several possible negative effects listed in the article.

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  6. P Satter

    In my own state a hearing is held within 24 hours of receipt of a request of an ERPO with notarized info showing they are a threat to themselves and/or others. If approved by the judge, the guns are removed along with concealed carry permits and they are unable to purchase new guns for a one-year period. If requested by the at-risk person, a second hearing is held 21 days after the initial ERPO to re-evaluate.
    There was a concern that this would be used by angry ex-girlfriends, etc., but this does not seem to be the case here. From the statistics, preventing suicides are the biggest category. Remember it has to go through a judge, and any false statements would still be perjury. The person deemed to be at-risk has a chance to present their side three weeks later if they choose to do so. It does not seem to be used very frequently here, which may be partly why it is inconclusive.
    I think it is very important to realize they are useful, but are only for someone who has people around them who initiate the process. It will only be for certain types of previously threatened gun violence, not all types. Gang violence, drug deal type violence, and others won't necessarily be affected. That doesn't mean it isn't helpful in the smaller number of cases where it is used.
    In the awful mass shooting case in Buffalo, it appears the police took him to a mental hospital after his threats where he stayed for a day and a half. Why the mental health professionals or the DA (or even the family) did not pursue the ERPO (since the initial arresting officers would likely no longer be involved) I do not know. Personally, I think any young person threatening to shoot up a school or other location should automatically be evaluated for an ERPO as a matter of policy. It isn't normal joking.
    I live in a rural state, have relatives who hunt and am not at all against gun ownership. But it used to be that people who were deemed a threat to themselves or others were easily (even possibly too easily) committed. At least removing known weapons and ability to easily purchase new ones from the category of those legally demonstrating themselves to be at risk should be a tool available to those around them.

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    Joe Delanis

    I have a point of concern:

    If the protection order only allows for the *seizure* of the firearms, what is going to stop the person from concealing then? Unless the judge also concurrently issues a search warrant, for the purpose of locating whatever guns are in the person's possession?

    I remember serving a protection order and collecting the dude's gun(s) -- based on what he told me and surrendered to me. If he said "Nope, sold that gun a week ago, I don't have it anymore," and refused consent to search for it (to say nothing of the logistics of properly searching an entire premises for a gun), I would have been none the wiser.

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    1. Avatar photo
      Rjosephpaquette

      In this case, wouldn't it have made more sense to put the person into protective mental health custody and start court ordered psychological care?

      This is my entire premise on several posts. Red Flag laws are inadequate and the wrong focus.

      This man needed mental health care, not just 'some' of his guns seized.

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    2. P Satter

      You are right (per LE relative). It's more a family member insitituting an ERPO and saying "I know Fred has a gun in the hall closet and he's despondent, threatening suicide or shooting someone else" situation where an ERPO is helpful. They don't cover or prevent all gun violence situations, just some of them.

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  8. Avatar photo
    Rjosephpaquette

    Red Flag laws have a place, but should not become the focus in our effort to reduce mass shootings.

    Instead of red flag laws, how about expanded mental health treatment and court ordered treatment?

    Let's look at this from outcome, how many people need to be 'red flagged' to save a life?

    Anyone familiar with even basic statistics, understands it takes a very large sample to prove something 'didn't happen'. In medicine, we now use the shorthand 'Number needed to treat'. What this means is how many patients do you have to intervene, to achieve a single success.
    So for seat belts, you only have to get 12 people to use their seat belt to save one life. NNT=12.
    But for cholesterol lower medications, you have to treat 85 high cholesterol patients to prevent one cardiac event. NNT=85.
    [Numbers made up to made up for my example, but if you'd like to play with this statistic yourself, there is an online calculator: https://clincalc.com/Stats/NNT.aspx?example]

    What you will find is that for low incidence events, such as mass shootings, the NNT to would be very very high. You'd have to red flag a lot of people to prevent a few shootings.

    We may need to look at other ways of identifying and intervening with people at risk.

    The NNT would be much lower, if our goal was simply getting the mentally ill into treatment--rather than trying to pick out among all the mentally ill which are at risk to commit a mass shooting.

    We'd also have the benefit of lower crimes over all with better mental health treatment.

    Focus on identification of those at risk, court mandated care, and expanded access.
    Red Flag laws have a place, but should not become the focus in our effort to reduce mass shootings.

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    1. Avatar photo
      Bill B

      Just to be persnickety about "low incidence events, such as mass shootings" reference.

      In 1966 when Charles Whitman climbed a tower and killed 15 people, that was a low incidence event. There was one mass shooting every three to twelve months or years up to that time.

      We all thought back then that it was awful and couldn't imagine that in the future we would be counting mass shootings in double figures annually and every other week. I imagine if we had known what was coming the legislative landscape around firearm ownership would look completely different than it does now.

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      1. Avatar photo
        rlritt

        Gun manufacturers, the NRA teamed up with willing politicians and have aggressive marketing campaigns that speaks to insecure men that are not really men if they don't have a bunch of guns. I've seen the stats on the increase in membership of NRA and gun sales going through the roof since they started working together. Likewise the Republicans frighten all these would Rambos saying that if you vote for them the opposition is going to take your guns away.

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      2. Avatar photo
        Rjosephpaquette

        Again, I think you are missing my point.

        We are trying to reduce mass shootings--we all agree on that.
        My point is the focus on red flag laws and guns is not likely to produce the outcomes we are seek.
        The focus should be on getting mental health care to those in need.
        My foray into statistics was to try and highlight that.

        It's simply a number, number needed to treat to get the outcome you seek.
        I'm not saying do away with red flag laws, I'm saying it's the wrong focus.


        The focus should have been on getting Charles Whitman mental health care BEFORE he climbed the tower.

        We literally have more guns than people in this country--tackling the 4 to 8% with mental health problems makes far more sense than focusing on the guns.

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          Bill B

          I can see your point. I just don't know that the mental health focus will be anymore successful than the direct approach.

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            Rjosephpaquette

            What do you mean by direct approach?
            You either focus on the guns or the mentally ill.
            I say the focus should be on the mentally ill--not the guns.

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    2. Avatar photo
      Magpie

      "Instead of red flag laws, how about expanded mental health treatment and court ordered treatment?" Why not have both? Even if red flag laws don't have a large impact statistically, imagine if the Sandy Hook or Las Vegas shootings could have been prevented. (I don't know whether the perpetrators were mentally ill in those cases, I'm just choosing two of the most horrific shootings as examples.)

      Something like Sandy Hook has a terrible impact on the victims and their families,. It also has a negative impact on society at large - it makes people feel a little sadder and a little less safe, even if they have no connection to the shooting.

      Red flag laws could be considered part of a larger, more comprehensive effort to identify, protect and treat the mentally ill and keep them from using guns to kill themselves and others.

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        rlritt

        "Something like Sandy Hook has a terrible impact on the victims and their families,. It also has a negative impact on society at large" especially when you have a movement of deranged people, Republican politicians and right wing media who say it never happened and it was a phony story put out there by people who want to regulate guns.

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        Rjosephpaquette

        I didn't say it's either/or. I was arguing that red flag laws are the wrong focus.
        (That was the last sentence of my post--I've moved to be first. You were not the only person to misapprehend my point.).

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          Magpie

          "Instead of" definitely sounds like either/or. But it's true that you soften that stance a little.

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    3. Midge

      "The NNT would be much lower, if our goal was simply getting the mentally ill into treatment--rather than trying to pick out among all the mentally ill which are at risk to commit a mass shooting."

      Suicide among the mentally-ill is much higher-incidence, though, and guns make successful suicide much easier. Moreover, mental health care in this country is already stretched so thin and has such poor continuity of care from "emergency" treatment to maintenance treatment that it's not like people who are, say, suicidal can rely on access to mental health care.

      https://lorienpsych.com/2021/03/30/guide-to-navigating-psychiatric-inpatient-care/

      In a just world, I believe psychiatric advance directives would be more common, and honored, for the mentally ill, to preserve some of the agency of their lucid selves during crises when they aren't lucid. If a mentally-ill person expressed the wish to have dangerous objects like guns confiscated during crisis periods, then that wish could be honored for as long as the advance directive lasts, instead of requiring renewal of short-acting orders.

      But I've heard the reality is that even ordinary advance directives are commonly not honored — there's just no easy way to honor them in our system during relevant crises. And if ordinary advance directives are commonly overlooked, I imagine the problem would be even worse for psychiatric advance directives.

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    Bill B

    In other words 2nd Amendment absolutists, in regards to Red Flag laws, will have another "it wouldn't have stopped x" so we shouldn't pass a Red Flag law. I love that two-step, well if we followed the law and these people were reported we wouldn't have to restrict firearms and then lobby on to weaken any existing gun laws and cry "infringement" whenever someone's firearms are actually taken.

    If nothing works then how does this get resolved? OK Corral style?

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      Rjosephpaquette

      I support red flag laws, I have absolutely no problem someone losing constitutional rights through due process. We do it with many rights already.

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        Bill B

        Didn't you just post "I think red flags are the wrong focus and preventive measure to address."?

        You indicated you want to rely on mental health laws which to be effective would require a national effort to psychoanalyze every adult in the country because, let's face it, you really don't know who's nuts until they advertise it.

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          Bill Nelson

          “… you really don't know who's nuts until they advertise it.”
          I have a list.

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            Bill B

            LOL I think we all have a list.

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          Rjosephpaquette

          From my post, sorry if you missed it.
          "Red Flag laws have a place, but should not become the focus in our effort to reduce mass shootings"

          I support the use of Red flag laws, and have no issue with a court suspending a right with due process. Courts suspend your right to freedom with due process. Suspend your right to privacy with due process. Suspend your right to vote with due process. Suspending your right to firearms isn't a stretch at all.

          That said, I don't think it should be our focus--as it's yield in success will be quite low. Based on the data in the above article, the 'number needed to treat' could be over a million.

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            Bill B

            Thanks for the clarification.

            I'd still contend that the "number needed to treat" would be vastly underestimated and that opposition to the law would arise fairly quickly from the usual corners. We do seem to be producing crazy people faster than we can count them.

            Additionally, only recently, it was discovered that most psychological research couldn't be replicated I'd have a fairly low estimation of just how effective diagnosis and treatment would be given the state of the field.

            https://www.vox.com/science-and-health/22360363/replication-crisis-psychological-science-accelerator

            This is all in the way of pointing out the never-ending gymnastics we have to go through in this country to establish a sane regulatory regime on firearm ownership ever since some folks discovered they could "weaponize"(pardon the pun) the issue for the culture wars to energize paranoid voters.

            We've reached a firearms saturation point in this country where we might as well just hand them out with birth certificates or just leaving them lying around for convenience sake. When you have more guns than people no law is going to prevent the mayhem.

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    Philbnichols

    Love hearing that nothing's conclusive when nothing is conclusive. Gives me more confidence in the source.

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