And technically, I suppose they’re right. After all, “red flag” laws aren’t the formal name for statutes on the books in more than a dozen states that allow for the “temporary” removal of firearms from someone deemed by a judge to be a danger to themselves or others. Most states refer to these policies as Extreme Risk Protection Orders, and while Kentucky lawmakers have decided to go with the moniker “Crisis Aversion and Rights Retention”, the concept behind the new bill is still broadly the same as most “red flag” laws out there.
[Whitney] Austin said CARR is different from the former laws because it focuses on gun owners.
“There are many reasons gun owners could be facing a crisis moment, and a huge focus of CARR is once a firearm would be temporarily transferred, we’d give them a list of support services and help them move to a path of safe gun ownership,” Austin said. “It’s focused on doing everything we can to help them and get them back to a place where gun ownership is safe.”
CARR creates a legal pathway to temporarily separate an individual in crisis from firearms, giving the person whose guns may be temporarily removed to be involved in a judicial hearing.
“But it is a very, very narrow path,” Austin said. “No one is allowed to go to the judge and request the order unless you’re law enforcement.”
Gun control groups won’t like that very much, because they prefer “red flag” laws that allow almost anyone to file a petition with the courts, but they’ll probably be willing to go along with the restriction for now. After all, once the legislation has the effect of law they can always demand changes that weaken what little due process protections are a part of the current proposal, as we’ve seen in Maine with anti-gunners complaining that the “yellow flag” law approved several years ago is too weak for their liking.
The new framework allows for family or friends to report evidence of a crisis to law enforcement. From there, a law enforcement official will determine the need to file a petition in district court for a temporary CARR order. Petitions can be filed with the court 24 hours a day, like a warrant or a protective order.
The district court would then need to find “probable cause” that a person poses “an immediate danger of causing serious physical injury to self or others,” according to Austin. Then a court can issue a temporary CARR order, which would temporarily transfer all firearms a person in crisis owns to law enforcement or a designated “responsible third party” at the request of those in crisis.
“The main thing is what can we do to take care of gun owners,” Austin said, “because that’s who’s impacted by all of this, whether it’s suicide or being used on others.”
Probable cause is a higher standard than what’s found in most “red flag” laws, but that doesn’t resolve the biggest issue with the legislation: its focus on gun owners specifically. If the purpose of this proposal is to prevent dangerous people from harming themselves or others, any legislation that focuses exclusively on one item that can be used to harm others without addressing the dangerousness of the individual is the wrong approach.
A more substantive effort would seek to repair the state’s crumbling mental health system, ensuring that truly dangerous people have access to care in an institutional setting if necessary. At the moment almost every one of Kentucky’s counties is classified as a Mental Health Professional Shortage Area, and there’s not just a shortage of front-line mental health workers in clinics and outpatient settings. There’s a lack of inpatient beds available for those in an acute crisis as well.
Fixing this problem would definitely cost more money than establishing a “red flag” law or whatever lawmakers choose to call it, but it would go much further in addressing the underlying issue than removing someone’s guns and considering the problem solved. I can appreciate that the lawmakers behind this proposal have taken a few minor steps that are an improvement over most “red flag” laws that are already in place, but that doesn’t mean they’ve come up with something that’s worth supporting.