To start, know that Red Flag Law is also referred to as gun violence restraining orders or in the case of our bill, SB 244 Extreme Risk Protection Orders (ERPOs).
Fourteen states have red flag (each a little different due to each state’s unique needs) and of those 14, a majority passed in 2018 in the wake of Parkland. Because the law is hot, it has become a magnet for media-attention and I’ve seen a multitude of articles and interviews filled with misinformation. Let me try to cut through some of that for you.
Whitney/Strong will only champion gun violence prevention solutions if they meet two requirements: 1) they are supported by the majority and 2) data exists that proves the solution will be impactful.
Red flag fits both requirements and as such, it is the first solution we are ready to aggressively champion!
1) In response to Parkland, President Trump called on all states to adopt ERPOs and directed the Department of Justice to provide technical assistance to states that want to implement the orders. The President reiterated this stance on the one-year anniversary of Parkland (February 14, 2019).
2) On January 3, 2019, U.S. Senators Marco Rubio (R-FL), Jack Reed (D-RI), Angus King (I-ME), and Susan Collins (R-ME) re-introduced the bipartisan ERPO and Violence Prevention Act, which will dedicate Department of Justice funds to incentivize states to give law enforcement the authority to prevent individuals who pose a threat to themselves or others the ability to purchase or possess firearms, while still providing due process protections.
3) Per a 2018 New England Journal of Medicine article, 78.9% of Americans support ERPOs, with differences between firearm owners and non-owners of just 5.3 percentage points.
4) The Federal Commission for School Safety Final Report (a group orchestrated by President Trump after Parkland) recommended ERPOs in December 2018. The report cites ERPO as a stop gap for reporting individuals who show warning signs of potential violence. To read the full recommendation, read pages 91-96 here: School Safety Report.
1) Suicide Prevention – Per the School Safety Final Report, a recent study looked at both the Connecticut and Indiana laws. It found that Indiana’s law was associated with a 7.5 percent decrease in firearm suicides during the 10 years following its enactment. Connecticut’s law was associated with a 13.7 percent decrease between 2007 and 2015.
2) On April 12, 2018 the day after Vermont enacted this lifesaving policy, Vermont law enforcement obtained a gun violence restraining order against an 18-year old who had planned a mass shooting at a high school. The would-be murderer kept a diary called “Journal of an Active Shooter,” in which he detailed his plans to cause more casualties than any previous school shooting.
3) Per U.S. News and World Report, Montgomery County Sheriff Darren Popkin out of Maryland, said of more than 300 protective orders in the first three months since the law took effect, five of them were school-related threats and four of those were “significant threats.”
Back to the misinformation... let me give you facts to help combat it.
What is the problem?
Whether through acquiring illegally or legally, dangerous individuals gain access to firearms. Furthermore, dangerous individuals use those firearms to commit violent acts on themselves or others. Red flag laws allow family or household members, in addition to law-enforcement officers, to petition the court to keep firearms away from a dangerous person in the throes of a crisis.
How does it work?
While the law varies amongst the 14 states with Red Flag in place, in Kentucky we propose the family or household member (or law enforcement or qualified mental health professional) present evidence to a judge supporting his/her claims regarding the dangerous person. If the evidence is convincing and the risk is great, the firearm(s) must be surrendered temporarily and in a timely manner. The respondent, the individual who has surrendered his/her firearm, is then provided within 14 days due process protections via a hearing with a judge (jury may be requested). The respondent may provide evidence in favor of retaining access to his/her firearm.
The final decision is made by a judge (or jury upon request). If the judge or jury determines the respondent is unable to retain his/her firearm, the firearm is stored securely for a period of time (current KY bill is considering one year).
Due Process Concerns Addressed
1. Petitioner Scope should be limited. Done – Only law enforcement, qualified medical health professionals, and family or household members can petition a court for removal of a firearm. Those closest to the dangerous individual should only be allowed to petition.
2. Criminal penalties for those who bring false or frivolous charges. Done – In our proposed bill, this individual is guilty of a Class A misdemeanor.
3. High Burden of Proof. Done – Clear and Convincing Evidence is required at the evidentiary hearing on day 14 to continue to retain the firearm for a period of one year.
4. A jury would provide the opportunity to eliminate judge bias. Done – a respondent can request a jury for determining the outcome of the evidentiary hearing.
See, it is possible to simultaneously protect citizens from gun violence and respect their second amendment and due process rights.
I’d like to personally thank Morgan McGarvey, my State Senator, for submitting SB 244. Morgan and I have worked closely to gather feedback and tweak this bill to address concerns from both sides of the aisle.
We have an uphill battle with this law and we need your help!
Step One: Please find your Legislators by clicking here.
Step Two: Call your Legislators and say, “I’m with Whitney/Strong and I support SB 244.”
There is no time to wait! Thank you for your caring about gun violence reduction.