Federal red flag law appears unlikely, but Washington and other states are covered
How do you prevent a mass shooting? Depending on who you ask, you’ll get a buffet of answers ranging from tough new gun laws to fixing a broken mental health system.
One idea getting renewed attention in the wake of back-to-back shootings in El Paso and Dayton this month is red flag laws. Red flag laws allow courts to temporarily take guns from people believed to pose a risk to themselves or others.
When Washington passed its version – Extreme Risk Protection Orders – in 2016, it was the fourth state to do so following Connecticut, Indiana, and California. Oregon was next in 2017.
Now, 17 states and the District of Columbia have passed some version of red flag laws. Most allow police or family or household members to petition the court to remove a person’s guns, but some go even further.
Last weekend, New York’s new law took effect. It was among the first to allow school officials to file petitions. Hawaii’s law, which takes effect in January, will add co-workers to the list of those who can go to the court. It’s also one of a handful of states where mental health or other medical professionals are allowed to initiate the process.
In Washington state, only police officers, family, or people living in the same home can petition the court. But Kim Wyatt with King County’s Regional Domestic Violence Firearms Unit says many across the state still don’t know it’s an option more than two years after the law was passed.
“I still think our biggest challenge to date is the education part,” Wyatt said.
“It’s great if you have laws on the books, but we need the public to be aware of them, certainly law enforcement and people to be aware and to understand that they have this resource to intervene,” Wyatt said. “We’ve been trying to increase training and spread the word, but we definitely need more assistance in raising the attention to it.”
That’s why their unit – the only unit in the state specializing in ERPOs – has been trying to help get other departments and communities up to speed.
“We’ve participated in three different gun summits where we brought law enforcement, advocates, and community members together to try to – in one setting one day – to educate them on our unit and also on extreme risk protection orders,” Wyatt said. “We’ve don’t that in Seattle, we went to Spokane and did that in Eastern Washington, and then also several months ago down in Pierce County.”
Wyatt says they will likely continue doing that in other parts of the state to raise awareness and educate people.
The court can take a person’s guns if cops or family can show the person is a threat. To get there, the court can consider whether the person is in a behavioral health crisis fueled by drug or mental health issues, has made threats to themselves or others, attempted suicide and more along with a variety of other factors.
“Law enforcement has also asked the court … and said things like they could have access to explosives or bomb making materials and other things that we think is important information the court should know, and so there is the ability for the petitioner to indicate that,” Wyatt said. “We have done that on one case whether there were concerns about somebody making references to mass shootings, specifically referencing the Las Vegas shooting … wanting to basically out-do that event.”
For 2018, the unit assisted on a total of 71 ERPOs that were ultimately granted – only two of those were initiated by family members, though, highlighting the need to educate the public about the fact that they can ask the court for assistance.
Of the 71, Wyatt says 45 percent involved people threatening to hurt themselves, while 33 percent involved threats against others. The remainder was a mixture of the two.
Wyatt says most of the threats against others were domestic violence related.
A judge first grants ERPOs for 14 days, while the person prepares for the main hearing where a judge can remove their guns for a year. The order can be renewed if a judge finds the person is still a risk.
Gun rights advocates have raised concerns about what they feel is a lack of due process. Among other things, they would prefer the main hearings happen in 48 hours rather than 14 days. Some in the gun rights community have also raised concerns about people lying when they file these petitions against someone. But most states have laws against that, including in Washington, where anyone lying on an ERPO petition can face anything from a gross misdemeanor to perjury charges.
In 2018, 71 ERPO petitions were filed in King County. This is a small number of cases given the estimated population of the county is 2.2 million residents.
Wyatt would like to see a federal red flag law, which she made clear when she testified before Congress earlier this year in support of a bill that would grant money to states to fund a red flag law, She says it’s critically important.
“I also think that you have to have a mechanism for federal agencies to be able to share information with local authorities or allow federal agencies to be able to petition [for an ERPO]. We’ve had issues come up with that where other agencies have sensitive information but don’t have the ability to share it – to the point where federal agencies if they were to petition – could be told they were acting outside the scope of their employment,” Wyatt explained.
Exactly how many ERPOS have been requested and granted in Washington remains unclear. Researchers at Harborview Medicacl Center will use part of the funding it can from the state this year for gun violence research to also scour records from King County and other courts across the state to evaluate the state’s extreme risk protection order law.
While some critics argue red flag won’t do anything to stop mass shootings, supporters say it’s impossible to tell because you’ll likely never know what a person whose guns were taken away had planned.