Red Flag Laws as a Solution to Mass Shootings

In the last week and a half, I’ve been doing many posts on public mass shootings, and crucially, what to do about them. Something I haven’t addressed fully yet, and would like to now, is something that seems popular not just among conservatives, but arguably engenders bipartisan support across the political spectrum: red flag laws.

Most prominently, this push on the conservative side that I’ve noticed comes from David French, a conservative columnist at The Dispatch. Another conservative columnist, Ross Douthat, with The New York Times, goes even further in a column titled, “The Simplest Response to School Shootings,” with his slightly different solution that seems like a red flag law in spirit, but not practice. His solution would be to strengthen “age-based impediments” to those would-be gun purchasers under the age of 25, in what he calls a more “substantial screening” before purchase to include a criminal background check like usual, but also “basic social or psychological screening, combining a mental health check, a social media audit and testimonials from two competent adults.” I already take grave issue with anyone thinking there are “simple” responses to school shootings.

I think what I discuss below regarding red flag laws will illustrate why I’m against what French and Douthat proposes (even though the latter is proposing something slightly different), but suffice it to say with respect to Douthat’s proposal: I find a “social media audit” to be a troubling phrase, and how would we define “competent” adults? And why 25? Perhaps because that’s the generally agreed upon thought for when the brain stops developing and maturing? So, fair enough on that score.

Douthat, like any reasonable moral person, is frustrated by the seeming futility and polarization preventing us from doing something about public mass shootings, which is why he thinks we just need to put more obstacles in place and “see what happens.” Again, as the below will illustrate, my concern with any law giving the government coercive power over its citizens, is precisely a concern over what would happen thereafter.

Red flag laws seem like similar concept to what I previously detailed as a solution from Mark Follman at Mother Jones, a collaboration between mental health experts and law enforcement officials known as “behavioral threat assessments.” However, arguably, the laws desired, and the laws in practice in places like California and Florida, have more teeth to them.

The concept seems reasonable enough on the surface: A red flag law authorizes police or family members to petition state courts to temporarily remove firearms from a person deemed to be a danger to themselves or others. That order is an Extreme Risk Protection Order. Such orders can also bar the person from purchasing guns. Red flag laws have gained traction in a relatively short amount of time. Before the Parkland shooting in 2018, only five states had such laws (and they go by various names). By 2020, 19 state and Washington D.C. enacted such laws.

CNN actually just did a story on the Florida law, and noted that since its creation, 8,000 times judges have acted to keep guns out of the hands of people “authorities deemed a risk to themselves or others.”

Can you spot where I’m going to get concerned? It’s in that sentence, which is the law itself. The word “authorities” followed by “deemed” makes me very nervous.

The primary reason, among others, such language codified into law concerns me is because of an additional law on Florida’s books called the Baker Act, passed in 1971, which allows for the “involuntary” commitment of persons to mental institutions for a mental health check.

It has not been uncommon in American history, or modern times, for people who are not obviously mentally ill, a risk to themselves, or others, to be involuntarily committed. One of the foundational Supreme Court cases on this question, 1975’s O’Connor v. Donaldson, dealt with a man, Kenneth Donaldson, who was diagnosed with paranoid schizophrenia and held in a psychiatric hospital against his will for 15 years, despite showing no signs of suicidality or intentions to harm others. The Supreme Court ordered him released.

I worry greatly about the stigmatization of mental illness and the association of it to would-be violent actors, particularly mass shooters. According to most studies, it is estimated that psychiatric disorders are responsible for 7 percent to 10 percent of murders.

However, I grant, that like everything, this is a difficult problem. If someone is severely mentally ill, and a danger to themselves or others, they are unlikely to seek help for themselves. Yet, I’m not sure I want to turn the clock back to the days of mass institutionalization and involuntary commitment, which even Trump pined for as president.

I should also note that the American Civil Liberties Union is against expanding involuntary confinement as an answer to gun violence.

In a 2010 article for the peer-reviewed medical journal, Psychiatry, authors Megan Testa and Sara West review the history of civil commitment in the United States, particularly involuntary psychiatric hospitalization. As they note, an obvious ethical conflict comes into play immediately with this issue: Physicians’ first principle is the Hippocratic oath to “do no harm,” which one of the way of avoiding harm to patients is “by showing respect for their autonomy (i.e., by allowing patients to make their own decisions regarding whether to accept or reject recommended medical care).” But obviously, again, we can imagine scenarios where someone is no longer capable of making such decisions, and therefore, it would be incumbent upon the physician, per the Hippocratic oath, to treat the patient for their benefit.

But then there are thornier cases that present a “difficult task,” Testa and West said, for weighing ethical obligations: those with eating disorders, substance abuse disorders, and even personality disorders, which do not necessarily “grossly impact individuals’ reality testing.” Alongside those, I think we have to include trying to “predict” or objectively assess red flags of someone who could be a danger to themselves or others.

The latter is particularly interesting, too, because we already struggle to notice red flags among those who would do harm to themselves, much less do harm to others. The red flags, particularly for the latter, only seem obvious in hindsight, even though the public mass shooter fits a broad type of a kind: male, young, socially awkward, and often with a history of domestic violence. Aside from that last piece, I mean. That’s millions of people. But maybe there is room within that last piece to do something? Strengthening laws around domestic violence, i.e., keeping guns out of the hands of those convicted for domestic violence, could be a worthwhile pursuit. Everytown has more detail on what that would like look here.

I’m a bit confused about the ACLU’s position on red flags. They seem to be in favor of red flag laws, provided they have “clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by the court.” But in other areas, the ACLU has opposed red flag laws, like Rhode Island’s. In other words, in practice, state lawmakers aren’t being as clear and nondiscriminatory as the ACLU would like, or as I’m sure, French would like. Which is the fatal flaw in arguments for red flag laws.

The ACLU states in its concern about Rhode Island’s red flaw law:

While recognizing the bill’s laudable goal, the ACLU’s analysis expressed concern about “the breadth of this legislation, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”

In addition, we have to remember that people abuse these sorts of broad laws, including the police, and my concern, as well as the ACLU’s, is that the police would use such laws to go after persons that have nothing to do with this tight focus on those severely mentally ill, a dangerous to themselves or others, and preventing public mass shootings. As the ACLU notes about the Rhode Island law, “The standard for seeking and issuing an order is so broad it could routinely be used against people who engage in “overblown political rhetoric” on social media or against alleged gang members when police want to find a shortcut to seize lawfully-owned weapons from them.”

Even aside from my many ethical concerns about red flag laws, are they effective? I’ve also been writing this past week about effectiveness, and I’m not sure these red flag laws are even effective. As I mentioned, red flags seem apparent often only with hindsight, and more pointedly, trying to predict a would-be mass shooter is a daunting task.

And of course, there is the point that states, like California, have such laws in place and they haven’t stopped mass shootings, like the 2021 San Jose shooting at the Santa Clara Valley Transportation Authority rail yard, where a gunman killed nine people and then himself. The state’s version of a red flag law was passed in 2014 after a different public mass shooting, with the desired goal of preventing them.

Finally, as I’ve also previously mentioned, given how rare public mass shootings are relative to other forms of gun violence, trying to draw inferences from broad red flag laws on stopping those types of crimes also presents a daunting task.

We have to remember that lawmakers and police are the mechanism for our legal idealism. That’s why French, or the ALCU, outline all the concerns I do, but suggest, if only we narrowed the law, then those concerns would be mitigated. But I’m not as confident as French and the ACLU seem to be that people with their careful consideration would be the ones writing the laws or enforcing them.

I encourage you to read the previously linked columns by Douthat and French, and see if you find them compelling or not as solutions to public mass shootings. I do not.