The gun control lobby loves to pretend that "red flag" laws aren't about gun control at all. Instead, they're routinely described as a way to prevent dangerous people from harming themselves or others. Some states even explicitly tie Extreme Risk Protection Orders to mental health.
In truth, though, ERPO laws have nothing to do with mental health, at least when it comes to addressing the supposed dangerousness of a person. "Red flag" laws require judges, not mental health professionals, to determine if someone likely poses a danger to themselves or others, and in ex parte hearings the subject of a petition isn't even on hand to provide a rebuttal or give the judge a firsthand look at their behavior. And if a "red flag" petition is approved, the person that's supposedly too dangerous to own a gun isn't ordered into or offered any kind of mental health treatment whatsoever.
It's my belief that one of the reasons so many politicians like "red flag" laws is that it allows them to claim they're "doing something" about mental health without addressing the acute shortage of providers and beds for those in the midst of a crisis. Adding more mental health resources costs money, but "red flag" laws are cheap to implement in comparison.
In a new piece at The Hill, anti-gun researchers including Dr. Garen Wintemute from UC-Davis, make it abundantly clear that they don't want to see a mental health component added to "red flag" laws. Wintemute and his colleagues write in praise of Maine's recent adoption of a "red flag" law approved by voters, contrasting it with the "yellow flag" law put in place several years ago.
Maine recently became the 22nd state to adopt a red flag law. They were close in 2019, but the “yellow flag law” they chose instead had a fatal flaw: it required the at-risk person have a mental health evaluation before the order could be approved.
It's a fatal flaw to have a mental health professional provide an actual diagnosis before a judge declares someone to be a danger to themselves or others?
Wintemute and his colleagues claim that a mental health evaluation "slows down firearm removal in an emergency where every minute counts," but that ignores the fact that while that mental health evaluation is taking place the subject is in a mental health facility and unable to access their firearms or anything else they might use a weapon to harm themselves or others.
It is also fundamentally misguided: not all violence stems from mental health disorders. Maybe someone threatening a mass shooting has depression or post-traumatic stress disorder; maybe they just want their boss and their co-workers dead. The important thing is that they’re threatening to kill people and shouldn’t have guns.
If someone is threatening to kill others, they can be charged with a variety of crimes, and that too can lead to the loss of their ability to legally possess a firearm.
It's also worth pointing out that in a "red flag" hearing, petitioners don't have to prove beyond a reasonable doubt that a threat was made. An allegation, even unsubstantiated, may provide a judge with enough cause to issue a gun confiscation order.
Wintemute, et all claim that "red flag laws are aimed at specific individuals who have made threats or exhibited concerning behaviors", people like the Lewiston shooter. The gun control advocates claim that these laws are useful "because they provide a targeted tool to quickly remove a dangerous person’s guns."
Maine's "yellow flag" law provided a targeted tool as well, but it was never even used against the Lewiston shooter. Nor was the shooter charged with battery for an assault several months prior to the shooting, which would have been another avenue to ensure he didn't have access to anything he could have used as a weapon.
The failure of law enforcement to invoke Maine's "yellow flag" law is not proof of its worthlessness any more than the number of "red flag" petitions that are granted are proof of the value of Extreme Risk Protection Orders. I'm not a huge fan of Maine's "yellow flag" law either, to be honest, but it at least contains some real due process protections that are nowhere to be found in "red flag" laws... protections that these anti-gun researchers believe are fatal to the utility of an Extreme Risk Protection Order.
Editor's Note: Christmas is coming a little early here at Bearing Arms!
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