Supporters of a bill that would allow judges to order the temporary removal of someone’s firearms were stumping for the measure at the state capitol in Kentucky on Wednesday, but those in attendance didn’t hear any talk about a “red flag” gun bill, even though that’s in essence what is being proposed.
Instead, the bill’s backers are calling it a Crisis Aversion and Rights Retention measure. Is that really just a distinction without a difference? While we don’t have the actual legislative language to look at, based on descriptions from the media and supporters it does largely look that way.
The bill is meant to help prevent those who are a danger to themselves or others from having a gun in their possession in an effort to reduce “the alarming rate of suicide” across Kentucky.
Taking the gun away would be temporary and given to “a trusted person” outside of the person’s home. Lawmakers said the transfer can only happen “after an individual is found to be an immediate threat” to themselves or others. It could later be returned through a judicial process.
The bill is being pushed by Whitney Austin, who started the organization Whitney Strong after she was shot 12 times during an active shooter incident in Cincinnati in 2018. To her credit, the measure that she’s crafted is a definite improvement over most “red flag laws,” but I still don’t think it’s ready for prime time.
Here’s how the Whitney Strong website describes the CARR process.
Law enforcement officer files temporary transfer petition.
Judge to approve or deny the temporary transfer petition following strict, independent judicial review.
If order is granted, individual’s firearm(s) are temporarily transferred to law enforcement or to a trusted person outside of the household.
Hearing held so that individual and judge can determine best next steps, including identifying opportunities for much-needed support services.
Firearm(s) returned when the individual is no longer in crisis.
The fact that guns may be transferred to an individual outside of the household rather than seized by police is a positive, as is the potential for mental health treatment if an individual is determined to be dangerous. But both of those things are only possible outcomes of a CARR proceeding, and there are still several underlying issues that make the bill a non-starter for me.
It sounds like under CARR, the subject of an order is not present at the initial “strict, independent review,” which means that guns can be taken from them before they have a chance to respond to the petition. Only after an order is granted is the individual gun owner given a chance to speak, and based on the description provided by Whitney Strong, it seems like even then they’re only able to talk about “next steps” and not appeal the judge’s decision or present evidence for the dismissal or rejection of the petition.
It’s also unclear whether the subject of a petition is entitled to legal representation, which is not the case with “red flag” laws around the country. Despite the fact that it’s generally a prosecutor or district attorney’s office that presents these cases to a judge, these are considered civil matters and those subject to a petition are not entitled to court-appointed attorneys.
How does a judge determine that an individual is no longer in crisis? How often can the subject of a petition seek relief, and what does that process look like? There are a lot of basic questions that aren’t addressed on the Whitney Strong website, so we’ll have to see what the actual bill looks like in order to know what other devils may be lurking in the details.
I don’t think that Whitney Austin is trying to ban all the guns in the United States. In fact, I’ll take her at her word that she’s looking to find a way to prevent acts of violence (including suicide) without trying to ban guns or magazines. Beyond my issues with the specific language, however, I’m of the firm belief that whether you call them “red flag” laws, Extreme Risk Protection Orders, or Crisis Aversion and Rights Retention measures, they’re a way for politicians to avoid addressing the fundamental problems within our mental health system.
Implementing a CARR law is awfully cheap compared to ensuring that those who need acute mental health treatment can get it, and right now Kentucky is failing miserably (along with most other states). Rather than pass a well-intentioned but fundamentally flawed bill like CARR, Kentucky’s lawmakers should be working on a bipartisan basis to address the mental health crisis and the lack of services for those in need.