Media, anti-2A cite non-existent "gap" in law to push for Extreme Risk Protection Orders

Media, anti-2A cite non-existent "gap" in law to push for Extreme Risk Protection Orders
AP Photo/Lisa Marie Pane

On January 31st, a 32-year old man walked into a Target store in Omaha, Nebraska carrying a semi-automatic rifle and fired off several rounds. Thankfully no one was injured, except for the shooter himself, who was shot and killed by responding police. While police haven’t said what the man’s motivation was, it sounds like it may very well have been a case of “suicide by cop”, and there’s no doubt that Joseph Jones had been experiencing severe mental troubles for years before his death.


In the last three years of his life, Joseph Jones was repeatedly sent to psychiatric hospitals because of his schizophrenia and delusions that a drug cartel was after him. The Nebraska man once lay down on a highway in Kansas because he wanted to be run over by a truck, but officers tackled him as he ran in front of vehicles. Time and time again, his family and the police took away his guns.

But Jones was able to keep legally buying firearms and law enforcement could do little. Once a deputy returned a Glock pistol to him, while another time a sheriff’s department confiscated his gun, although keeping it raised questions. Last month, Jones opened fire in an Omaha Target store using a legally purchased AR-15 rifle. No one was hit by Jones’ gunfire, but police shot and killed the 32-year-old as shoppers fled in panic.

In the Associated Press’s view, the incident “demonstrates how gun laws fail to keep firearms out of the hands of deeply troubled people, despite a national effort to pass red-flag laws in recent years.” According to that narrative, if Nebraska (or maybe Congress) had passed a “red-flag” law, then Joseph could have been legally disarmed.

Nebraska isn’t among the 19 states with a red-flag law. Also known as extreme risk protection orders, they’re intended to restrict the purchase of guns or temporarily remove them from people who may hurt themselves or someone else.

A red-flag law has been proposed for Nebraska this year, but it hasn’t received a legislative hearing yet.
“This is a kind of example screaming out for an extreme risk protection order,” said Kris Brown, the president of the Brady Center to Prevent Gun Violence. “It actually breaks my heart that that did not happen here.”
As the AP ultimately admits, however, there was another tool already available that Jones’ family could have used to bar him from lawfully purchasing or possessing a firearm, but it’s a step his family never took.

Federal law has banned some mentally ill people from buying guns since 1968, including those deemed a danger to themselves or others, who have been involuntarily committed, or judged not guilty by reason of insanity or incompetent to stand trial.

But it sets what Bureau of Alcohol, Tobacco, Firearms and Explosives spokesman John Ham described as a “very high bar.” In order for someone’s name to be submitted to the FBI for inclusion in the National Instant Criminal Background Check System, they must undergo a hearing in which they are deemed unable to take care of their personal business because of mental illness.

The law describes it as being “adjudicated as a mental defective.” Every state has a different process, but the multiple three-day involuntary commitments that Jones’ family and law enforcement records described didn’t trigger such a hearing.

A couple of years ago, Jones’ family was so desperate that they considered going through the process. They are familiar with some of the court processes because Jones’ mother also has schizophrenia, is low functioning and had to be committed to a group home.

But they decided not to pursue that because they were able to persuade law enforcement to intervene and get Jones into a mental hospital.


So why didn’t they pursue a formal adjudication after Jones was released? According to the AP, Jones was “repeatedly” in and out of mental institutions over the past three years, which means that there were multiple opportunities for the family to go through the process.

There is no “gap” in Nebraska law, despite the AP’s claims. There is a process by which someone can be adjudicated as a mental defective, and that formal adjudication would have barred Joseph Jones from lawfully owning a gun. The fact that the family didn’t pursue that adjudication isn’t an indication that a “red flag” law would be an improvement over the existing process. Frankly, it sounds to me like Jones needed more intensive mental health care than what he received, but “red flag” laws don’t typically have any mental health component to them at all. Once any lawfully-owned firearms are removed from the subject of a “red flag” order, the system considers the issue to be closed… at least until the order expires or prosecutors attempt to renew it.

This is a sad story all around, and that includes gun control groups like Brady exploiting the incident to push for a “red flag” law. Like most other states, Nebraska’s mental health system is in a crisis all its own, and if lawmakers want to “do something” in response to Jones’ actions they should work to repair that broken system instead of adding more gun laws to the books.


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