How ‘Red Flag Laws’ Could Stop Shootings Before They Happen

December 10, 2021

By a Biometrica staffer

Earlier this year, in April, eight people were killed by a 19-year-old at a FedEx facility in Indiana. The shooter’s mother had reported to police over a year earlier, in March 2020, that her son had confided to her that he would attempt “suicide by cop.” As a result, CNN reported at the time of the shooting, a shotgun found at his home was seized, but the eventual shooter was still allowed to legally purchase the assault rifles he would use to carry out his rampage only four months later.

When this detail emerged, it raised questions about whether background checks were completed and how the shooter had accessed those firearms.

One of the most crucial background checks that are run in the U.S. on a daily basis is the kind conducted when someone applies to buy a firearm from a licensed salespoint. Under current law, however, such a background check would only throw up a warning if the person has a relevant criminal record. The system would not catch anyone who has made threats of harming themselves or others, if not for red flag laws.

Extreme risk laws, also known colloquially as “red flag laws,” allow state-level courts to prohibit gun sales or ownership to those who are deemed to be a danger to themselves or to society. According to Everytown for Gun Safety, the gun control group, red flag laws close a “gap” in the current system, which only restricts a person from accessing a firearm if they have been convicted of certain crimes, deemed mentally ill, or subjected to a final domestic violence restraining order.

They work in similar ways to search and arrest warrants, in that police or family members have to present sufficient and relevant evidence to a judge that the individual poses an immediate risk, after which the judge will make a decision. As long as the order is in effect, the person cannot buy or possess firearms, and any that they already own will be confiscated temporarily by law enforcement during the order period.

But why are they so important?

It is because shooters — those who target schools in particular —  tend to telegraph their actions before carrying out a mass casualty attack, as we wrote last month. For instance, reporting since the Nov. 30 shooting at Oxford High School in Michigan has revealed that there were warning signs that may have been missed by teachers and the alleged shooter’s parents in the lead-up to the massacre. 

Connecticut was the first state in the U.S. to enact a red flag law, over two decades ago. Michael Lawlor, the man who helped write that law, told CNN that these laws can be effective tools to get guns out of the hands of risky people in an urgent situation, but rarely have provisions that make it difficult for the individual to buy a gun at a later date. He added that officers in the Indiana FedEx case should have filed a petition with a court to designate the person as “having a violent propensity or mental instability.” This likely would have prevented the shooter from going out and buying those assault rifles later. In Lawler’s opinion, local law enforcement are often not sure how best to use red flag laws. Not only do police have to be trained, those within the legal system, like prosecutors and judges, too have to become intimately familiar with the law.

Currently, 19 states and the District of Columbia have red flag laws in place, most of which were enacted after the 2018 Marjory Stoneman Douglas High School shooting in Parkland, Florida. Recently, the FBI reached a settlement (reportedly worth $127.5 million) with the families of victims and survivors of that attack.

According to the suit, the FBI received a tip that Nikolas Cruz — the man who would eventually plead guilty to the shooting — had bought guns and planned to carry out a school shooting. That information was lost in the system and was never forwarded to the Miami field office. If it had been, agents might have discovered that Cruz “had been expelled a year earlier and had a long history of emotional and behavioral problems.” 

The states that currently have red flag laws are:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Indiana
  • Maryland
  • Massachusetts
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Virginia
  • Washington

One of the key difficulties in assessing the efficacy of red flag laws is that we have no way of quantifying how many shootings were actually thwarted because of them. They are also not infallible. As the New York Times pointed out, a gunman was still able to access guns and carry out the shooting at Sandy Hook Elementary School in December 2012 in Connecticut, despite the fact that some said he had shown warning signs beforehand.

Where they are effective is in helping reduce suicides, most of which include firearms and which are the most common ways that guns kill Americans. Research has repeatedly shown that having access to a gun increases suicide risks and that just removing a gun temporarily from a person who is suicidal can cut that risk significantly. Red flag laws are more likely to help such people and their loved ones than to prevent mass casualty shootings.