No, "red flag" laws aren't about addressing mental health

No, "red flag" laws aren't about addressing mental health
AP Photo/Rick Bowmer

With Democrats in complete control of Colorado government, any legislative response to the mass murder at the Q nightclub in Colorado Springs is likely to feature a heaping helping of new restrictions on gun owners as well as revisions and expansions to some of the existing gun laws already on the books in the state.

One statute certain to draw lawmakers’ attentions is Colorado’s Extreme Risk Protection Order, otherwise known as a “red flag” law. We’ve already seen a number of press outlets pushing the idea that the suspect in the shooting (whose name will not be used by Bearing Arms) somehow “evaded” the state’s ERPO law, though in reality neither law enforcement nor the suspect’s family ever filed a red flag petition. Much less talked about is the fact that the suspect also managed to avoid prosecution on felony charges of kidnapping; charges which were dropped by prosecutors after the suspect had been arrested, charged, and had his bond set at $1,000,000.

A “red flag” petition might have led to the suspect’s guns being confiscated if one had been filed, but a felony conviction would have guaranteed it, and probably would have involved at least some time behind bars. It’s doubtful, however, that Democratic legislators are going to spend much time trying to fix the many issues plaguing Colorado’s criminal justice system next session, especially when they can slap another gun law on the books or modify existing regulations and proclaim to constituents that they did “something.” As it is, one of the leading champions of gun control in the state legislature is misleading the public about the scope of the state’s “red flag” law.

Rep. Meg Froelich, a Democrat from Greenwood Village serving as a co-chair of the legislature’s new Gun Violence Prevention Caucus, said waking up to the news of another mass shooting is the unfortunate new way of life. On Wednesday in Virginia, a second mass shooting took place in as many weeks.

As the caucus and the state’s Office of Gun Violence Prevention continue their work, Froelich said the first areas of focus will be to look at what’s already been done and if it’s being properly implemented and enforced — not just for the red flag law, but for all policies relating to gun safety.

“Do we need to go back into the law and work on the law? Do we need to work on specifically enforcement and implementation? Do we need to work on education in order to increase implementation and enforcement?” Froelich said.

In addition to the Club Q shooting, Froelich noted other cases, such as the Sol Tribe tattoo shop shooting last year, where red flag laws may have been able to prevent an atrocity.

There isn’t one fix-all solution to gun violence, Froelich said, but ERPOs are one tool that can help save a life. She said that while a common response to a shooting like at Club Q is to emphasize the need for more mental health resources, extreme risk protection orders are designed as just that. She said

“It’s disappointing to see the call for more resources to go to mental health when we firmly placed ERPO in the realm of resources for mental health,” Froelich said. “The whole point is someone who is identified in crisis, weapons are removed for a period of time — it’s not a seizure, it’s a pause button — and through the process of petitioning to get those weapons back, you are proving that you’ve … addressed those mental health issues.

Let’s drill down a bit on Froelich’s claims. She says that the state’s “red flag” law is itself a mental health resource; an absolutely laughable claim to anyone who’s ever actually looked at how ERPOs work in Colorado. The truth is that there’s no mental health component to an ERPO at all. Once a judge has determined that a preponderance of the (one-sided) evidence presented to them demonstrates the likelihood that someone is a danger to themselves or others, their firearms can be removed from their possession for up to a year (though the order can also be extended). Interestingly, while the state only has the burden of a preponderance of the evidence for a petition to be granted, the subject of the petition has to provide “clear and convincing evidence” that they’re no longer a danger before their firearms can be returned to them.

At no point in the ERPO proceedings, however, is the supposedly dangerous individual given any access to mental health treatment by the state. Absurdly, after a judge has decided someone poses a threat to themselves or others, the state takes their guns away but leaves the dangerous individual with access to pills, knives, rope, gasoline and matches, hammers, and anything else they might use as a weapon. And since these supposedly dangerous people aren’t being monitored in any way, they can still acquire a gun on the black market with just a little time and effort.

So why is Froelich so intent on convincing Coloradans that the state’s “red flag” law is all about mental health? Well, my guess is that she and her fellow Democrats would much rather pretend to do something substantive than address the current crisis in Colorado’s mental health system. Earlier this year lawmakers approved a bill that will eventually add about 140 beds, though the vast majority of them won’t be in inpatient mental health facilities. And even supporters of the legislation say its a good start, but doesn’t come close to addressing the scope of the problem, given the fact that there were about 50,000 involuntary mental health holds issued in Colorado in 2019.

The reason why Colorado’s “red flag” law has no mental health component is ultimately pretty simple; to do so would stretch an already burdened mental health system even further. Instead of actually treating those in crisis, Colorado Democrats have decided the better solution is to take away any legally-owned guns someone might have and declare the problem solved. Even worse, they’re misleading the public by declaring that the “red flag” law in place is, at its heart, about mental health when it has nothing to do with diagnosis or treatment whatsoever.