Written By: Humza Mohsin
Edited By: Janakiram Rajaraman
CNN
The Michigan State University community recently experienced one of the latest American mass shootings. On February 13th, 2023, a gunman killed three students and critically injured five using firearms obtained legally. Before the shooting, Michigan lawmakers were already pushing for a legislative package containing gun safety laws after the tragedy at a high school in Oxford, Michigan, where a student killed four classmates. In light of the MSU shooting, Democrats and some Republicans are reemphasizing their passion for passing legislation to curb gun violence.
The mass shooting epidemic facing this country is complex, and gun restrictions continue to divide the country. Some argue that strict gun laws are an obvious solution, while others say the laws only regulate those willing to comply with them, effectively failing to prevent unwanted shootings. Many gun owners value safety but censure gun safety legislation contending that they infringe upon an individual’s right to bear arms. But civil rights are not absolute, and the government can deny some of these rights in selected circumstances.
One particular set of gun safety laws, nicknamed “Red Flag” laws, has enraged gun rights activists. They claim the law is unconstitutional and fails to prevent gun violence.
“Red Flag” laws exist in less than half the states and Washington D.C. and vary between jurisdictions. However, the concept is essentially the same: Red Flag laws enable judges to issue an order to seize an individual’s firearms at a petitioner’s request without a crime ever having been committed. The catch is that the petitioner, usually a qualified peer like a law enforcement agent, teacher, coworker, family member, roommate, etc., must prove to the court that the high-risk individual, or the respondent, is likely to engage in behavior that is threatening to themselves or others.
Different states have unique characteristics that justify a seizure. In New Jersey, Red Flag laws allow judges to issue Extreme Risk Protection Orders (ERPOs) that have up to 15 “petitioner’s flags” for a judge to consider before issuance; some notable New Jersey “flags” include a history of mental health issues, criminal convictions, a history of violence, or a history of threats. But the question largely remains whether these laws contribute to lower shooting rates. Are Red Flag laws working as intended?
Red Flag laws are conceptually sensible. Designers of the first Red Flag law wanted to create a legal mechanism that allowed people to prevent gun violence. But some pragmatic critics present strong points that illustrate potential failures of Red Flag legislation, among other gun laws, in preventing mass shootings.
TIME Magazine
A study by researchers at Duke University School of Law claims that Red Flag laws have been responsible for preventing some suicides by firearm. Despite this statistic, there are several other ways to commit suicide. While Red Flag laws can prevent immediate self-harm from a gun, they cannot stop an individual from experiencing suicidal ideations or employing alternative suicide methods.
This does not imply officials should strike the laws— 90% of survivors of suicide do not attempt suicide again —and advocates for the law claim it should stand as it gives high-risk individuals a second chance at life. But Red Flag laws were not aimed at preventing suicides. Despite the excellent characteristics that the law developed, in its minimal but actual ability to reduce firearm-enabled suicides, many argue that the laws chip away at gun rights while offering little functionality in preventing mass shootings.
First, gun legislation disproportionately affects wholesome and legal gun owners. People willing to attempt mass shootings are usually indifferent to legal deterrence, and law-abiding citizens usually comply when lawmakers impose strict gun laws. But as the rules become more rigid, the ability of law-abiding gun owners to defend themselves is further reduced. If mass shooters are undeterred by strict gun laws, their access to guns is restricted further under the statutes. This means that strict gun policies might not discourage would-be shooters, but they increase the difficulty for a would-be shooter to legally acquire a gun, which can potentially reduce mass shootings.
Red flag laws frighten opponents of the law because of the power given to the government to seize firearms in the absence of a criminal offense. Opponents also argue the redundancy of the law, considering that 80% of mass shooters announce their intentions to carry out acts of violence (like making threats), which is already illegal in many jurisdictions. But what are the other proactive strategies that prevent violent acts with firearms? What if the shooter’s intentions go unarticulated?
A case analysis of the MSU shooting illustrates an alternative set of events that might have prevented a shooting, assuming the government passed Red Flag legislation beforehand: First, Red flag laws dictate who can petition a risk protection order. Many jurisdictions qualify parents as acceptable petitioners, and the MSU shooter lived with his father for several years. Next, a petitioner must convince a court to issue a risk protection order after observing government-defined prerequisite characteristics in the respondent, like a history of mental health challenges, violence, or a criminal record. The MSU shooter fit several descriptions, and his father knew about his son’s troubles.
The MSU shooter pleaded guilty to a misdemeanor charge in 2019 after county prosecutors facilitated a plea agreement that included a clause that dropped the shooter’s initial charge: a concealed carry weapon felony. By the way, if county prosecutors had successfully convicted him of the felony charge, he would not have been able to obtain the firearms used in the MSU shooting legally. The shooter was also mentally ill. In this case analysis, a court would observe that the shooter had a history of mental illness in conjunction with a firearm-related offense in 2019.
Next, a court would rule on the decision to seize the would-be shooter’s firearms. Here, direct threats or notes are helpful for judges to consider, but it is still unclear whether the father knew about his son’s ambitions. Without this crucial fact, the shooter’s father may fail to convince a judge to seize his son’s firearms.
Before the shooting, the shooter’s father encouraged his son to remove his firearms. His father was aware of his son’s preexisting mental health problems, which were further exacerbated after the death of his mother. The shooter’s father knew that his son used the backyard of their Lansing residence as a venue for target practice. Overall, the father knew about his son’s troublesome behavior. One cannot help but wonder how the events would have unfolded if the father had convinced a court to remove the firearms from his son’s problematic hands. Maybe Red Flag laws would not have deterred the shooter’s predisposition to violence, but perhaps they would have prevented the shooting from ever happening.
As the country struggles to find a viable solution to mass shootings, individuals should have their emergency response plan. If anything, people should draw attention to possible red flags regardless of a state’s Red Flag law status. They can tell a law enforcement official if they have evidence that someone intends to do something dangerous to themselves or others. A judge might not have the power to issue a firearm seizure, but it could let law enforcement take some practical action to prevent a catastrophe.
[The views expressed in this article are those of the author and the author alone; they do not necessarily represent the views of all members of the RULR Editorial Board and Rutgers University]
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