The killing of five patrons at an LGBTQ bar in Colorado on November 19, 2022 is the latest mass shooting to make headlines in the US
Police said they have not yet determined the motive. But one thing that has emerged is that the suspect had a history of violent plans, having allegedly threatened to attack his mother with a homemade bomb more than a year before the Club Q attack.
It has led to questions about why that earlier alleged incident didn’t trigger Colorado’s “red flag” law, which may have prevented him from acquiring the AR-15-style semiautomatic weapon that police say was used in the Q Club attack. The conversation asked Alex McCourt, an expert on gun laws at Johns Hopkins University, to explain how the red flag laws are supposed to work and why they weren’t triggered in this case .
What are red flag laws?
Red flag laws, also known as extreme risk protection orders, allow judges to make a decision that results in the temporary removal of firearms from a person deemed to be at high risk of committing hurt herself or hurt others. They also prevent that person from buying guns for a certain period of time.
They are intended to protect against the actions of individuals who have made violent threats or may be going through some type of crisis.
The way it works is that specific people can apply to a court to issue an order when someone is deemed to be behaving dangerously or making violent threats.
The categories of individuals who can apply in this way vary from state to state. But all states that have enacted such laws, 19 plus the District of Columbia, include police officers among those who can petition the court to impose a red flag warrant.
Household and family members are also commonly listed. And in Maryland, Hawaii and the District of Columbia, health officials can petition the court if they are concerned about a patient’s behavior. In California, Hawaii and New York, teachers or school administrators are included on the list of people who can petition the court.
Typically, if the court finds there is sufficient evidence of a risk of violence, a judge will issue an ex parte (or temporary) order. These cover a very short period until a hearing can be held. At this subsequent hearing, the potential subject of the warrant may argue that they are not dangerous.
If the court decides there really is a risk, it will issue a longer-term order. In most cases it covers a period of up to one year. The subject of the weapons ban can request that the order be terminated early, if they can demonstrate, for example, that their moment of mental crisis has passed or that they have sought sufficient treatment. The petitioner may also seek renewal of the order at the end of the year.
Does research show that red flag laws work?
The first thing to note is that the laws are relatively new: most of them came in within the last decade. So researchers are still evaluating the data. But studies have shown they can be effective in preventing mass shootings and possibly suicides.
The 2019 investigation found that among a group of cases in which guns were taken from individuals who made threats of mass shootings in California, none of the individuals went on to carry out mass shootings. A 2022 study evaluated extreme risk protection orders in six states. It found that all of the states looked at issue warrants based on mass shooting threats: 20 percent of those cases involved threats to schools and 15 percent to intimate partners or family members.
Although these laws are relatively new, research looking at the legislation suggests that they can help prevent suicide.
So there is enough evidence to say that they can be used to prevent deaths. But these measures are so new that we need to know more about how well states are implementing them. To date, research suggests that public awareness of extreme risk protection orders is low, and that efforts to educate the public and make it easier to file petitions can help.
How well are red flag laws enforced in states?
Connecticut and Indiana had early versions of red flag laws, in effect in 1999 and 2006 respectively, but the policy really took off after the Sandy Hook shooting in 2012. Since that incident, in which 20 children and six adults were killed by a gunman. – 17 other states and Washington, DC, have added extreme risk protection orders to their statutes. Most have come in since the 2018 Parkland school shooting.
One area where more research is needed is the implementation of red flag laws. There seems to be a lot of variation, both state by state, but also within states that have laws in place.
Patchy implementation can be the result of a combination of factors. Because they are fairly new, there is a knowledge gap, meaning that would-be petitioners may not know that a red flag order is an option, or how to go about filing an order.
But it’s also true that there’s been a fair amount of pushback from certain counties and sheriffs who have said they won’t enforce these laws because of Second Amendment concerns. This seems to happen more in rural areas. But this has not been systematically studied so far.
Is there a possibility of a federal red flag law?
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There has been discussion among advocates about trying to pass federal legislation. But so far, the main actions taken at the federal level are to make it easier for individual states to adopt red flag laws. The Biden administration has pushed for its adoption, and the Justice Department has issued model legislation that states can use.
Meanwhile, the bipartisan Safer Communities Act passed in June 2022 allows funds to be distributed to states for crisis intervention programs, including the deployment of extreme risk protection orders.
What was in Colorado?
Colorado’s red flag law was enacted in 2019. It allows law enforcement and family or household members to file a petition in court. If approved, a court can order a person’s guns to be taken away for up to a year.
A 2021 study of Colorado’s first year of law enforcement found that in 85 percent of cases, law enforcement initiated proceedings, and in 15 percent of cases it was members of the household or relatives who applied.
There has been a slower uptake in Colorado than in some other states. But there have been some questions about whether the law has expired: It was implemented just before the COVID-19 pandemic began, so for much of the first year it’s been in place, people remained in home orders.
However, the study found that there were a significant number of sheriffs and counties who said they would not enforce the law. There is no real legal basis for them to do so; it is rather a symbolic or political position. But it has implications for red flag laws, as law enforcement officers may not have the training or inclination to follow red flag orders.
Why didn’t it trigger in this case?
Not too many details have been released about why a red flag order was not imposed on the Colorado shooter. Early reports suggest that he appears to be a classic example of someone who made a threat, in this case threatening his mother with a homemade bomb, and as such could be served with a warrant. But there is reportedly no public record indicating that law enforcement or any family members have acted on this threat and petitioned the court.
Experts can only speculate as to why this may be. But one point to note is that it occurred in a county where the sheriff has expressed opposition to Colorado’s law and has previously said his officers will not seek a warrant except in “exigent circumstances.”