Rep. Dan Crenshaw, the Texas Republican who’s developed a large following on the Right since he was elected in 2018, floated a trial balloon about “red flag” firearms laws on Twitter Sunday evening.
The solutions aren’t obvious, even if we pretend they are. But we must try. Let’s start with the TAPS Act. Maybe also implement state “red flag” laws, or gun violence restraining orders. Stop them before they can hurt someone.https://t.co/2G2pZSWaF1
— Rep. Dan Crenshaw (@RepDanCrenshaw) August 4, 2019
The TAPS Act that Crenshaw refers to is H.R. 838, the Threat Assessment, Prevention, and Safety Act sponsored by his fellow Texas Republican Brian Babin. According to the sponsor, the legislation is designed to identify threats to the community.
• Will standardize and provide a behavioral threat assessment and management process across the Federal government
• Will provide States the training, resources, and support needed to stand up community-based, multidisciplinary behavioral threat assessment and management units
• Recognizes that behavioral threat assessment and management processes must become part of the culture and fabric of contemporary law enforcement
• Urges that this is a matter of national security – if we act now and work together, we can save lives
Recognizing threats is something we need to be able to do effectively. But what comes after someone’s been deemed to be a threat? That’s what the “red flag” law Crenshaw offered tentative support for is supposed to deal with.
These laws, also called “extreme risk protection orders,” or ERPOs, allow for certain individuals to petition a court to have their guns taken from them for a period of time if they’re deemed by the court in a hearing to be a threat to themselves or others. The biggest problem that we’ve seen in the red flag laws proposed so far is that they lack due process. Hearings can be held without the gun owner being present, and weeks can go by before the gun owner can appeal and be heard by the court. Some states have written in provisions that penalizing filing a false report. Others, however, have not. And as Sheriff Tony Mace of Cibola County, New Mexico told me last week, he doesn’t believe that he has the power under New Mexico’s red flag law to enter the gun owner’s home without a warrant in order to take their firearms. If they want to voluntarily hand them over, he can take them, but he doesn’t believe he has the legal authority to enter the home to take possession of the firearms.
The other concern is that these laws deal with an inanimate object owned by someone deemed to be a threat to themselves or others, but doesn’t deal with the individual at all. These are gun control bills, not mental health bills. Someone subjected to a red flag order is told they’re too dangerous to own guns, and then they’re left alone. With their car keys. With matches and gasoline. With sharp knives. With whatever pills they may have in their medicine cabinet. What they’re not left with is any sort of resource to deal with what’s making them a threat to themselves or others.
Most states already have laws on the books that allow for law enforcement to take someone into custody for an involuntary mental hold of up to 72 hours, if necessary, in order for doctors to make an evaluation. But mental health facilities are overcrowded, and red flag hearings can be done in just a few hours, not a few days. It’s more efficient, even if it’s much less effective, to pursue an ERPO.
Red flag laws are a gun control solution to a mental health problem. They take the guns and leave the mental health issues unaddressed. Even if the due process concerns are addressed, the focus on guns and not the person makes any bill I’ve seen so far not worth supporting. Ultimately they don’t touch the real issues that need to be dealt with, and I urge Rep. Crenshaw and others to continue to research these laws and what they do and what they don’t do as this issue’s debated in Congress.