Why Illinois' "red flag" law is a red herring in Highland Park attack

AP Photo/Charles Rex Arbogast

I’ve seen a lot of pieces on Illinois’ red flag law and whether it could have been used to prevent the attack on Highland Park’s Fourth of July parade, and none of them seem to be able to draw any firm conclusions. The consensus seems to be “maybe, if it had been used at all.”

Even if the suspect in the targeted attack on the parade had been prohibited from owning firearms, it likely wouldn’t have been difficult for him to get ahold of one illegally. Firearm Restraining Orders restrain someone from lawfully purchasing or possessing a gun, but they’re completely irrelevant when it comes to the illicit market.

Gun control laws are no impediment to those who are truly committed to carrying out a deadly plan, as we just witnessed in nearly gun-free Japan. A guy built a homemade gun and used it to assassinate the former prime minister, for crying out loud. So no, there’s no guarantee that Illinois’ Firearms Restraining Order would have prevented the Highland Park massacre even if it had been used.

But even if you want to argue that the suspect wouldn’t have easily been able a get a gun, or that his parents would have been paying closer attention to his mental health after he’d been “red flagged,” I’m still not convinced that the law would have made a difference. The FRO expires after six months, so if a petition had been filed in either April of 2019 (when police responded to the home because the suspect was allegedly threatening suicide) or September of 2019 (when police came out after a family member reported the suspect had threatened to “kill everyone”), it would have expired no later than March of 2020. It might have delayed his FOID card application for three months, but unless there was some sort of new behavior to justify extending it another six months it wouldn’t have prevented him from obtaining a FOID card afterwards.

That’s important to remember. Being subject to a FRO in Illinois is not a prohibiting factor in obtaining a FOID card after it’s no longer in effect. How could it be?  These are explicitly billed as temporary measures, not a permanent prohibition, so the inability to legally purchase a firearm can only so long as the FRO is in place, and would have been no barrier to him obtaining a FOID card had he applied after an FRO expired.

Another quirk in Illinois law is that only certain family members can file for a Firearms Restraining Order, which means police had no option to file one even if they’d wanted to. As for the family, it seems like they have a bit of a history of calling police out to the home but refusing to press charges or to get the state formally involved in their disputes or incidents. They don’t seem like the type to use a red flag law, if they were even aware that it existed.

So the answer must be to expand the categories of people who can initiate a “red flag” petition, right? His former classmate. His neighbor who was weirded out by the painting on the side of the home. Someone who was troubled by one of his videos or songs on Spotify.

Over at The Atlantic, David Graham makes some good points (albeit and oddly enough from a pro-gun control and pro “red flag” law point of view), about the unintended consequences of “tightening up” these laws by loosening the reporting criteria or even limiting it to law enforcement.

Maybe, then, police should have more leeway to deny permits or, as in the case of [the suspect’s] threats, arrest a suspect—but any system that gives police greater discretion risks abuse and replicating existing inequities in the system. A white young man from a prominent local family ([The suspect’s] father was a candidate for mayor not long ago) might end up getting a pass, while a less fortunate young man of color would be blocked. (I have previously written about how Black Americans do not, in practice, enjoy the same Second Amendment rights as white Americans.)

Eschewing discretion and mandating that police act more strictly might produce more equitable results, but would risk violating due-process rights and protections against unreasonable searches and seizures. Writing such a law in a way that would pass muster with a judiciary as hostile to gun control as the current one is unlikely.

You say “hostile to gun control”, I say “cognizant of the fundamental nature of the right to keep and bear arms in self-defense.” Regardless, he’s right that the more restrictive a red flag law is, the less likely it’s going to pass constitutional muster.

There are many reasons why Illinois’ Firearms Restraining Order wouldn’t have made a difference, but the most important one (beyond the constitutional considerations), is that, like all other “red flag” laws in place across the country, it’s about controlling the firearms of a person deemed to be dangerous, rather than doing anything about the dangerousness of the individual themselves.

Illinois, like every other state in the union, however, has a civil commitment law in place that both allows law enforcement to play a role and deals with the dangerousness of an individual and not just any guns they might own:

In a true emergency situation, an individual may be admitted to a mental health facility against his or her will; however, if the person with mental illness proposes immediate harm to himself or herself or others, a court order is not necessary. If local authorities are contacted first due to immediate danger, they can escort the respondent to a mental health facility for treatment. Once the patient is out of immediate danger, the police can take it upon themselves to initiate the petition filing process with a quick certification.

The real question for me is why didn’t police take him in for a mental evaluation when he was proposing immediate harm to himself in April of 2019 or in September of 2019 when he was threatening to kill his family? Both cases clearly meet the criteria, and in the second case you have an escalation from suicidal ideation to homicidal ideation. I understand that doctors could very well have determined that the suspect wasn’t really a danger to himself or others, but there’s also the very real possibility that he would have been committed, and if that had happened he also wouldn’t have been able to purchase firearm once he’d been released.

I have no idea why police didn’t use the civil commitment law on either occasion, but I do know that Illinois has a real shortage of inpatient treatment options. In the course of researching this post I ran across this nugget in a 2020 legislative report from the Illinois Psychiatric Society:

House Bills 4841 & 5113/Senate Bill 3760.  These bills are intended to respond to the reduction in the number of state-operated inpatient psychiatric beds from 33,000 to 1,150 over the past decades and the need to insure that the remaining beds are used for those most at risk.  It would require the Department of Mental Health to create policies to reduce the number of non-dangerous forensic patients in order to create capacity for non-forensic patients regularly denied admission to inpatient care despite serious, untreated illnesses.

That’s quite a drop, and while some of those beds have been replaced by privately-run hospitals, the state also has the second-largest shortage of mental health care workers, according to Illinois Association for Behavioral Health. It also appears that there’s an issue with ensuring that those who are highest risk are actually getting the treatment they need. In short, the state’s mental health system is in major need of reform and attention.

Those bills, by the way, never made it out of their respective committees in the Democratic-controlled legislature in 2020. That’s yet another problem with “red flag” laws; they allow lawmakers to say they’re “doing something” without addressing the bigger issues with our mental health systems that result in guys like the Highland Park suspect “falling through the cracks.” And that, sadly, is why we’re far more likely to see Illinois lawmakers engage in empty exercises to  “fix” the fundamentally flawed Firearms Restraining Orders instead of finally addressing the crumbling state of its mental health system.