Recent Shootings Call into Question Efficacy of Red Flag Laws

Extreme risk protection orders, also known as red flag laws, are designed to reduce gun violence by temporarily removing access to firearms from people courts rule are a potential danger to themselves or others. The weekend shooting at Club Q nightclub in Colorado Springs, Colorado, that killed five people and injured 25 others and the murder of three University of Virginia football players last week have rekindled debate on red flag laws since both U.S. states have measures on the books and both suspects may have been known to authorities for other incidents.

Colorado enacted its red flag law in 2019. The suspect in the Club Q shooting, Anderson Lee Aldrich, 22, may have had a previous interaction with law enforcement. The New York Times reported on an incident in June 2021 in which a person with the same name and age as the alleged shooter threatened his mother with a bomb last year.

Colorado Springs Mayor John Suthers urged “caution against an assumption that the circumstances of this case would lead to application of the red-flag law—we don’t know that,” according to a local Fox affiliate.

The Washington Post reported that the bomb threat occurred in El Paso County, Colorado. Count officials had previously responded to the state’s red flag law with an official resolution in opposition, declaring the county a Second Amendment sanctuary that would not “appropriate funds, resources, employees, or agencies to initiate unconstitutional seizures in unincorporated El Paso County.”

Measuring the effectiveness of red flag laws is difficult for reasons every security profession can appreciate: It is particularly hard to quantify preventive measures, which, if effective, stop a quantifiable event from occurring.

A September report from the Associated Press found that states that have red flag laws underutilize them. A total of 19 U.S. states and the District of Columbia have enacted such laws. In five of the states, only law enforcement officials may petition the courts to remove firearms access, a process known as an extreme risk protection order (ERPO). In others, family or household members may also petition the courts, and a few states broaden the petition circle to include medical professionals, school officials, or coworkers.

A mass shooting at a gay nightclub in Colorado Springs has raised questions about enforcement of "red flag" laws that seize weapons from people who threaten others. The AP’s look earlier this year at why use of such laws is low across the nation. https://t.co/RBQMMuG2Do

— The Associated Press (@AP) November 21, 2022

The AP report found that many states with the red flag laws have barely used them or invoke them unevenly. Florida, which like a few states enacted the laws after the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland,Florida, had the highest usage rate at 33.6 per 100,000 adults in the state. However, AP noted the Florida rate reflected “aggressive enforcement in a few counties.” Illinois, the sixth most populous state which has had a red flag for the entire timeframe of the AP study, had only issued 154 gun surrender orders under the law, a paltry 1.6 per 100,000 adult residents—and all 154 came from the same county in the Chicago suburbs.

“It’s too small a pebble to make a ripple,” said Duke University sociologist Jeffrey Swanson, who has studied red flag gun surrender orders across the nation, of the AP tally. “It’s as if the law doesn’t exist.”

One factor in the effectiveness debate is simply use of the laws. In addition to areas where authorities are actively hostile to the laws, such as El Paso County, several reports describe confusion, lack of infrastructure, or lack of knowledge as reasons for the low and uneven use of red flag laws.

“You pass the law and then nothing happens,” Duke University professor Jeffrey Swanson told The Pew Charitable Trusts. “There’s no real systematic efforts to invest in letting people know about it, educating the stakeholder groups who need to know about it, setting up the infrastructure and protocol to do it.”

Johns Hopkins Professor Shannon Frattaroli told Pew that red flag laws are exactly what law enforcement needs to prevent not only suicides (data shows a strong correlation between red flag laws firearms-related suicide prevention) but also mass shootings. She points out that post action reports show that most mass shooters signaled ahead of time they were planning violence.

Frattaroli said for red flag laws to be effective at preventing such incidents, law enforcement must be trained to use the laws. It “isn’t just automatic,” she explained. “We need to have the infrastructure in place in order for this to work.”

In addition to law enforcement initiating a petition, most states with red flag laws allow family members to petition the courts. An article published by the American Psychiatric Association details three obstacles citizens face regarding red flag laws:

1. A perceived lack of help connecting with social services. Participants reported that the primary motivation for pursuing an ERPO was to protect their family members and others from harm, as well as to connect their family members with mental health services. They expressed disappointment when they learned that their family members were not connected to services.
   
   
2. Ambiguities with the administrative and legal processes. Participants expressed a lack of clarity on the function of the ERPO, the proper steps for filing one, and how the ERPO would prevent a firearm sale. Additionally, some courthouse workers incorrectly told participants they could not file for an ERPO as a civilian.
   
   
3. Feelings of distress. Participants were hindered by the distress they felt, usually related to the initial circumstances that led to the ERPO filing. They also reported that the process felt like a conflict with the family member against whom they were filing the ERPO, and they also perceived that the officials involved in the process were biased against ERPOs.