Rhode Island’s “red flag” law went into effect in June of 2018, and since then the law has been used by police more than 30 times to obtain an Extreme Risk Protection Order from a judge allowing them to confiscate any legally owned firearms from individuals deemed a danger to themselves or others. The Providence Journal reports that many police chiefs are praising the law, while some Second Amendment advocates are still not on board.
Cranston Police Chief Michael Winquest is one supporter, and says he believes the law has saved lives.
“Although the impact of the law is difficult to measure since it is preventative in nature, I believe that the removal of firearms and prevention of future purchases of firearms from individuals in Cranston, where extreme risk protection orders were granted by the court, likely averted potential tragedies,” Winquist told The Journal.
The Providence Journal notes that the law hasn’t stopped some high profile incidents, including a recent suicide in Westerly, Rhode Island.
The sometimes fatal mix of mental illness and firearms came to the forefront on Dec. 19, when a man with a history of making homicidal and suicidal threats opened fire in the lobby of his Westerly affordable housing complex, killing one and injuring two before turning the gun on himself.
“The red flags that went up prior to the Westerly shooting are very alarming, and I look forward to seeing better implementation of Rhode Island’s new red flag law,” said Jennifer Boylan, a volunteer with the Rhode Island chapter of Moms Demand Action for Gun Sense in America. “As such, Moms Demand Action volunteers are launching a Red Flag Awareness campaign in 2020.”
In that case police say the suspect wasn’t on anybody’s radar, but Westerly’s police chief says if law enforcement had been made aware of the fact that the individual purchased a gun, local cops could have stepped in.
“If we were aware he was getting a gun, and we went through our history of him, would it have triggered something to potentially look at the red flag law to look to see if we wanted to take the gun? Yes,” said Westerly Police Chief Shawn Lacey.
Lacey described himself as a “big proponent” of the red flag law, which the department used once, successfully.
Rhode Island’s “red flag” law is fairly limited compared to some other states. Only law enforcement are allowed to petition a judge for an Extreme Risk Protection Order, and providing police with false information that leads to them seeking an order against someone can result in jail time or a fine.
Unfortunately, the state’s law suffers from the same problem that plagues virtually every “red flag” law on the books; a violation of the due process rights of the subjects of the orders.
At the initial hearing — usually the same day as the petition, without the targeted individual being present — a judge decides if there is probable cause to think someone is a risk. If so, the judge can issue a 14-day order that allows police to search the individual’s home and confiscate any firearms.
A second hearing, with the individual present and able to argue on his or her own behalf, is required within 14 days to determine if a one-year ban on buying or possessing firearms is warranted.
As the Providence Journal reports, it looks like only one Extreme Risk Protection Order application has been denied since the law took effect in 2018, which may indicate that judges are simply rubber-stamping the requests that they receive from police. One Second Amendment advocate says there are other issues with the law as well.
In an interview law week, Frank Saccoccio, the president and chief lobbyist for the Rhode Island Second Amendment Coalition, said judges encourage people to voluntarily agree to have the court enter a “mutual restraining order with no findings of fact, and the court does that very often.”
“So what happens is …‘I’ never get a chance at that point to put any witnesses on, to question anybody. … At that point, ‘I’ have a clean record. There is no finding by a judge that ‘I’ did anything wrong, but my rights are gone. You don’t see that as wrong? I see that as absolutely a violation of due process.”
“There is another problem,” Saccoccio added.
“Most police departments will say, when you petition to get your firearms back, ’I have an affidavit where this person said this, this, this and this. Because of that, I don’t want to give you your firearms back, and now you have to file suit to get them back. … Now, none of those allegations were [ever] substantiated or contradicted. But the police department gets to take them as gospel.”
One other issue with the red flag law in Rhode Island is that, even after a judge determines that someone poses a danger to themselves or others, after their guns are seized and they’re blocked from legally purchasing any more the State takes no more interest in these individuals. There’s no mental health treatment offered, which makes the state’s red flag law a gun control law that’s masquerading as a mental health provision.
As a Rhode Island state Senate report made clear in 2017, the state’s mental health system is in drastic need of reform, but passing a red flag law is a lot cheaper than actually making the needed investments to address the shortfalls in treatment in the state.
Rhode Island has fewer behavioral health and substance abuse counselors per capita than other New England states. The lack of substance abuse human resource capacity is significant given clients with persistent high service needs i.e. those that use acute inpatient care. Rhode Island has no mental health programs offering specialized services for traumatic brain injury (TBI), and had the lowest % of mental health facilities offering programs specifically designed for Veterans or for individuals with Alzheimer’s disease or Dementia. Recently, Rhode Island closed a number of residential treatment beds, with adolescent substance use disorder residential treatment being hit the hardest.
If Rhode Island really wants to get serious about addressing those in a mental crisis, they need to focus on actually getting those individuals help, not empowering judges to strip individuals of their constitutional rights before they’ve ever had a day in court or a chance to defend themselves.