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How red flag laws work — and why sometimes they don’t: Yahoo News Explains

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Gun control is as divisive an issue as it’s ever been, but there is one strategy to curb firearm-related deaths that a majority of Americans, including a majority of gun owners, agree on: red flag laws. Nineteen states already have some form of these laws on the books, which allow authorities to issue “extreme risk protection orders” or “gun violence restraining orders” to temporarily restrict an individual’s access to guns when they have been identified as being at high risk of causing harm to themselves or others. Yahoo News explains how red flag laws work and why, despite best efforts, they can fail to prevent violence.

Video Transcript

SAM MATTHEWS: If you want to start an argument in the United States, mention gun control.

LAUREN BOBERT: The Second Amendment has been under assault for a very long time.

KAMALA HARRIS: This is not about getting rid of the Second Amendment. It's simply about saying we need reasonable gun safety laws.

MADISON CAWTHORN: You want my guns. I know it.

BETO O'ROURKE: Hell, yes, we're going to take your AR-15.

- I almost feel like we're all being punished for having firearms.

SAM MATTHEWS: However, there is one form of gun control that a majority of Americans, including gun owners, agree on. It's what's known as an extreme risk protection order, or a gun violence restraining order.

But you may have heard these laws referred to by a different name--

MICHAEL WILLIAMS: Red flag law.

ANDREA CANNING: Red flag laws.

DONALD TRUMP: I have called for red flag laws.

LINDSEY GRAHAM: Red flag laws. I think these protective orders have a lot of hope to solve some of these cases.

SAM MATTHEWS: 19 states already have red flag laws in place. And the core idea is to give authorities a way to limit access to guns for people who are believed to be at high risk of harming themselves or others.

RICK SCOTT: If you're threatening to harm yourself or somebody else, you shouldn't have access to any weapon.

SAM MATTHEWS: When the system works, once a protection order is placed, the individual at risk won't be able to purchase any new firearms. And if they already own one or more guns, those may be temporarily confiscated.

And that's an important distinction to make here. Red flag laws aren't permanent bans on purchasing or owning guns. After an initial period, there needs to be a hearing, typically in court, to extend it. And the burden is on the state to prove a need for that extension.

It's hard to quantify what effect these laws have had so far, but there are some promising signs. More than half of all gun deaths each year are self-inflicted. And in Connecticut and Indiana, there is evidence suggesting a link between the number of guns confiscated and a 5% to 10% reduction in the expected suicide rate.

That said, both of those states have also shown the weakness of red flag laws in preventing mass shootings. Following the shooting deaths of 20 young children and 6 adults at Sandy Hook Elementary in Newtown, Connecticut, multiple sources reported that the gunman had shown troubling signs. But no action was taken to restrict his access to guns.

And more recently, a gunman who took the lives of eight people at a FedEx facility in Indiana was referred to law enforcement, interviewed by the FBI, and had a firearm confiscated back in March, 2020. But law enforcement did not pursue the red flag laws beyond the initial hold. So the gunman was able to legally purchase new weapons just a few months later, which he used in the attack in April.

RYAN MEARS: This case does illustrate some of the shortcomings that exist with this red flag law. As you can tell from the tight timeline that we are under and operate under when we try to make a determination, we have 14 days under the statute. And because we have 14 days, our ability to have access to meaningful medical history, meaningful mental health records, is severely limited.

SAM MATTHEWS: So what do we do now? Clearly, the answer has to be something. President Biden has issued a number of executive orders aimed at gun control, including directing the Justice Department to create templates and guidelines for states to implement red flag laws if they don't have them already.

There's also discussion in Congress over how to strengthen these protection order. However, it's incredibly unlikely that will come in the form of a federal red flag law. What's more likely is that Congress will incentivize states to create their own laws following some kind of national standard.

Meanwhile, in states that already have these laws, there's a lot more to be done to make sure they actually work.