In the post-Parkland era, gun control continues to resurface in the news cycle as an issue of importance. While nearly seven out of 10 Americans want serious change in gun policy, national legislation hasn’t reflected this opinion. But one innovative proposal at the state level may change the terms of the debate.
A policy called Extreme Risk Protection Order, also known as a Gun Violence Restraining Order or sometimes a “red flag law,” has garnered significant bipartisan support. ERPOs are currently in place in 16 states and are up for a vote in seven more.
In simple terms, an ERPO sets up a process for reporting to authorities a fellow citizen who displays distressing behavior.
After a legal hearing where the so-called respondent is often not present, some combination of a judge, law enforcement, and a medical professional decide if there is enough evidence to confiscate the respondent’s firearm.
After a set period of time, the person subject to the order can have his firearm returned. This “cooling off” period can make all the difference, according to Dr. Garen Wintemute, a professor at University of California, Davis. “A temporary reduction in risk achieved by firearm recovery and purchase prohibition also allows an opportunity to reduce risk by other means, including medical or mental health treatment or social service intervention,” said Wintemute, who is director of UC-Davis’ Violence Prevention Research Program.
It’s an approach being tried across the country. Maryland alone issued 258 ERPOs from October 2018 through March of this year. According to analyses by Everytown Research, Indiana’s suicide rate fell by 7.5% in the 10 years subsequent to its ERPO law taking effect, and in Connecticut one suicide was averted for every 11 guns removed.
A study by Everytown also found that 51% of mass shooters from 2009 to 2017 displayed actionable warning signs before they committed violence. This has caught the attention of Republicans and Democrats alike: Sens. Lindsey Graham, Dianne Feinstein and Marco Rubio have since initiated ERPO-related bills.
Early polling suggests that this approach is a popular middle ground between protecting the rights of gun owners and keeping firearms out of the hands of the mentally unstable. A Hart Research poll of 1,200 likely voters found 89% support for ERPOs on a federal level, including 86% of Republicans and 84% of gun owners.
The policy is not without its critics. Colorado-based libertarian Jay Stooksberry has written about complaints that emerged — both practical and constitutional — when a red flag law took effect in his home state.
“There’s a variety of objections to this,” Stooksberry told RealClearPolitics. “I live in a community that’s very enthusiastic about their firearms and they take them very seriously and they have quite the arsenals. That means overloading the existing sheriff department’s evidence lockers.”
There are other practical problems, too, he said. Due to a Colorado policy that hearings for ERPOs must be held within 14 days of their filing, courts without enough judges suffer severe backlog.
Rally for Our Rights founder Lesley Hollywood and other gun rights activists raise the question of whether expedited legal processes give those cited adequate time to prepare for a hearing. “How do you even get an attorney?” she told RCP. “How do you build a defense, how do you do a mental health evaluation within 14 days?”
The ex parte nature of these hearings creates Sixth Amendment concerns. Alex Yablon, a journalist for The Trace, an online outlet covering gun violence, noted that because the initial hearing often happens without the respondent present, “some people have said that’s an abuse of people’s civil rights, and you shouldn’t lose this right to own a gun without being present.”
Enthusiasm for enforcing red flag laws differs among law enforcement agencies, often depending on attitudes about guns within their jurisdictions. Sheriff Steve Reams of rural Colorado’s Weld County, once proclaimed that he would go to jail rather than serve an ERPO. “It’s a matter doing what’s right,” he told CNN in March.
The National Rifle Association also levied its own constitutional criticisms, issuing this official statement to RCP: “The NRA supports risk protection orders that respect due process rights and ensure those who are found dangerous receive the mental health treatment they so dearly need. Unfortunately, none of the bills signed into law include such safeguards and therefore lack our support.”
Despite these criticisms, the bulk of evidence points to ERPOs as an effective policy option, Yablon told RCP. “Even the NRA’s opposition to this is more measured than it is for a lot of other things, like universal background checks,” he said. “They do say they could conceive of some way in which they could support an ERPO bill rather than opposing the very idea of it. I would expect this to be a continuing part of the gun discourse.”
He added that he has yet to see a credible account of someone’s civil rights being abused by these laws. “Due process is built into these bills,” he said. “I understand why people are concerned about that and it makes sense for civil libertarians to be skeptical of things like this. But I think that those might not bear out when you look at the details of this.”
In practice, this seems to be the case: Maryland turned down slightly less than half of the ERPO petitions sought as of March 2019, as they did not meet the evidence standards needed for firearm seizure. “Orders are not only being issued appropriately,” Montgomery County Sheriff Darren Popkin told the Capital Gazette, “but saving lives.”