Texas Bans Red-Flag Laws
Texas lawmakers passed a bill preemptively barring the U.S. state from enforcing or adopting most kinds of extreme risk protective orders (ERPOs), just one in a flurry of new legislation signed by Texas Governor Greg Abbott this past weekend.
ERPOs enable judges or magistrates to temporarily restrict a person’s access to firearms—ones they already possess or plan to buy—during a crisis when the individual is exhibiting concerning behavior or warning signs of violence or self-harm, often called red flags. Civil judges typically issue protection orders after due process hearings find that an individual is an immediate danger to others or themselves. The orders are individualized, risk-based, and time-limited.
Under S.B. 1362, or the Anti-Red Flag Act, Texas judges are prohibited from using a red-flag order in civil cases to confiscate a person’s firearms, The Washington Post reported. Judges could face jail time or other penalties if they try to enforce such an order—the law makes any such action a felony.
ERPOs can still be issued for criminal cases and existing domestic violence protection orders.
The law aims to undercut any future federal red-flag laws with an article stating: “A federal statute, order, rule, or regulation purporting to implement or enforce an extreme risk protective order against a person in this state that infringes on the person’s right of due process, keeping and bearing arms, or free speech protected by the United States Constitution or the Texas Constitution is unenforceable as against the public policy of this state and shall have no effect.”
In addition, the law prevents Texas entities from accepting federal funds to help implement or enforce an ERPO.
Red-flag laws have existed in different U.S. states since 1999, and 21 states have statutes permitting the protection orders. In most of those states, only law enforcement or state attorneys can petition for an ERPO. But in others, family members, medical professionals, and certain educators can request an ERPO action.
Opponents of these laws have said they could be abused by people levying false accusations or “‘rogue’” judges,” according to the Texas Tribune. But there are very few documented cases of those scenarios. Most red-flag laws across the country are constructed with due process and constitutional protections in mind, advocates say.
ERPOs have proven particularly effective in cases of self-harm. A multistate study published in The Journal of the American Academy of Psychiatry and the Law found that one suicide was averted for every 17 ERPOs issued.
“From a public health perspective, then, although it is a difficult long-term challenge to mitigate the deleterious causal factors, both distal and proximal, that incline people to self-injurious behavior, a more immediate and effective way to stop so many people from dying is to limit access to firearms for people at manifest risk of harm to self, whatever their motivation,” the study said. “Research suggests that only a small minority of individuals who are prevented from suicide through denial of access to a firearm will substitute an alternative method and eventually die from suicide.”
