Serious Concerns Emerge in Debate over “Red Flag Laws”

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Red flag laws or “Extreme Risk Protection Orders” have become an intensive topic of discussion and debate after the 2018 Parkland, Fla., shooting as well as the more recent shootings in Dayton, Ohio, and El Paso Texas. These laws have been described as setting up a process that allows family members or law enforcement to ask a judge for an order that allows temporary confiscation of firearms if a person is deemed to be a threat to themselves or others.

According to the website “Guns & America” — a collaborative effort of ten different public media outlets — there are currently 17 states and the District of Columbia that have some form of these types of laws on the books:

President Trump’s recent statements after the Ohio and Texas mass shootings about enacting some sort of red flag law on the federal level have understandably and predictably raised many concerns from pro-Second Amendment groups. For example, Gun Owners of America leaders are extremely concerned about the President’s support for this type of legislation:

In battleground states, leaders of these groups are now suggesting gun control could doom Trump in 2020. This includes Ohio Gun Owners’ president, Chris Dorr.

“He, more than anybody, should know how gun owners are going to react to a betrayal like that,” Dorr said in an interview with Guns & America.

But opposition to red flag laws does not only come from the right side of the political spectrum. The Rhode Island chapter of the American Civil Liberties Union raised many valid concerns about that state’s legislation as it was being considered:

  • The court order authorized by this legislation could be issued without any indication that the person poses an imminent threat to others.
  • The order could be issued without any evidence that the person ever committed, or has even threatened to commit, an act of violence with a firearm.
  • The court order would require the confiscation for at least a year of any firearms lawfully owned by the person and place the burden on him or her to prove by clear and convincing evidence that they should be returned after that time. If denied, the person would have to wait another year to petition for return of his or her property.
  • The person could be subjected to a coerced mental health evaluation, and the court decision on that and all these other matters would be made at a hearing where the person would not be entitled to appointed counsel.
  • With the issuance of an order, police would have broad authority to search the person’s property.
  • The standard for seeking and issuing an order is so broad it could routinely be used against people who engage in “overblown political rhetoric” on social media or against alleged gang members when police want to find a shortcut to seize lawfully-owned weapons from them.

Discussion of this type of legislation is occurring in the context of a 2016 study from the American Psychiatric Association showing that “mass shootings by people with serious mental illness represent less than 1% of all yearly gun-related homicides” and “the overall contribution of people with serious mental illness to violent crimes is only about 3%.”

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Additionally, psychiatric experts note that it is impossible to identify who of the mentally ill will become violent. For example, a highly trained psychiatrist who extensively studied the Sandy Hook shooter said after the Parkland massacre:

But unfortunately, it’s impossible for any of us to predict who is going to go from being troubled and isolated to actually harming others…Because we’ll misidentify some who aren’t bad guys, and we’ll fail to identify others who may become bad guys.

That last point in the ACLU memo above on invoking red flag laws for “overblown political rhetoric” — or, in essence, political thought — is another serious concern shared by commentators on the right like Glenn Beck. These free speech and freedom of conscience concerns have also been raised regarding the expansion of mental health screening and social emotional learning programs in schools.

Mental screening programs are problematic for several other reasons. One of the frequently used mental screening tools called TeenScreen has an absurdly high 84 percent false positive rate leading to much over-diagnosis and over treatment. Dr. Mark Olfson, TeenScreen’s scientific director and a big proponent of mental screening, testified last summer to the Federal School Safety Commission. Apparently not realizing or not admitting the connection between increased screening with these spurious assessments and over-treatment, he said, “the overall increase in youth psychotropic medication use [is] occurring among those with less severe or no impairment.” Many drugs used to prevent suicide and violence actually cause those very problems.

There is also little to no research on the effectiveness of red flag laws in actually preventing gun-related homicides and mass shootings. An article in Guns & America noted:

There hasn’t been a great deal of research on the effectiveness of these laws, mostly because they are relatively new.

And we don’t know yet how these laws can affect future violence or homicides.

While politicians of all stripes want to help and want to be seen, especially in an election year, to be “doing something,” there seems to be significant evidence and agreement that red flag laws are not the way to go. We must not give up our essential liberties for the false and elusive hope of security.


Karen R. Effrem, MD

Dr. Karen Effrem and her husband have three children. She is trained as a pediatrician and serves as national education issues chairman for Eagle Forum and president of Education Liberty Watch.