“Nineteen states and Washington, DC, currently have red flag laws, otherwise known as extreme risk protection laws. It’s a form of gun control that even Republicans have endorsed, including some red-state governors, former President Donald Trump, and South Carolina Sen. Lindsey Graham. Connecticut was the first to enact such a law two decades ago, but the rest were passed in the last six years.
The more modern laws follow a similar formula, modeled after domestic violence protection orders. Certain people can petition for an extreme risk protection order from a court — a civil, not criminal mechanism that would prevent an individual from legally possessing or purchasing a gun for up to one year and allow police to seize their firearms for that period.
In most cases, it’s the police who initiate the petition against individuals who have a criminal history, who have made threats of violence, or who present other behavioral risk factors. But in some states, family members of the individual, health professionals, and school administrators can also do so. Should the individual continue to present an immediate danger to themselves or others, the petitioner can go back to the court after the year is up and seek another order.
The intention of these laws isn’t to criminalize people; it’s to stop guns from falling into the hands of those who have exhibited heightened risk of violent behavior and who don’t otherwise meet the threshold to be charged with a crime or involuntarily committed.”
“There have been some jurisdictions — including in San Diego; King County, Washington; and Broward County, Florida — that have put resources toward creating dedicated law enforcement units that petition for such orders, but they are the exceptions. King County, for example, used a protection order to seize firearms from the alleged leader of a neo-Nazi group in 2019.
“What we’re seeing is that where you have that robust training, you have people who are dedicated to this, this is their job or a good part of their job, we see better success,” Horwitz said. “The laws don’t self-execute. These are very new laws. We need to make sure that we support them.””
“During the summer of 2020, the federal government seemed poised to offer some sort of reform to qualified immunity, the legal doctrine that shields local and state government actors—not just police—from facing federal civil suits when they violate someone’s constitutional rights, so long as the way they infringe on the Constitution has not been “clearly established” in prior case law. That explains, for example, why two cops who allegedly stole $225,000 while executing a search warrant could not be sued for that act: While we would expect most people to know that was wrong, there was no court precedent that said theft under such circumstances was a constitutional violation.
It’s an exacting standard that can defy parody in the ways in which it prevents victims of government abuse from seeking damages in response to government misconduct. In the case of Tyre Nichols, for example, it’s quite plausible that the officers who killed him could be convicted of murder and still receive qualified immunity—a testament to how disjointed and unforgiving the doctrine can be.”
“Those skeptical of qualified immunity reform typically cite an uneasiness about bankrupting officers. They can take heart that cities indemnify their employees against such claims, meaning the government pays any settlement. It’s certainly an imperfect solution in terms of holding individual bad actors accountable, but it gives victims of state abuse an outlet to achieve some semblance of reparation. Make it so any settlements come out of a police pension fund, and you’ve created a major incentive for departments to excise its consistently problematic actors.”
“Gun controls that look sensible in theory frequently fail in practice, either because they are ill-suited to prevent mass shootings, do not apply, or were not enforced. That does not mean such laws have no effect on violent crime. But it does mean that Americans should be skeptical when politicians tout the lifesaving potential of a particular policy, especially when it also has the potential to deprive innocent people of their constitutional rights.
The New York Times notes that the 21-year-old man who prosecutors say admitted to murdering seven people and injuring dozens of others in Highland Park on Monday “was known to police” because of two incidents in 2019. In April 2019, Reuters reports, police visited his Highland Park home in response to a 911 caller who said he “had attempted suicide.” That September, police returned in response to “alleged threats ‘to kill everyone’ that he had directed at family members.”
During the second visit, police asked the young man if he was suicidal, which he denied. They “seized a collection of 16 knives, a dagger and a sword” that belonged to the 18-year-old’s father, which they later returned to him.
Police did not arrest the son because they lacked probable cause to believe he had committed a crime. “There were no complaints that were signed by any of the victims,” Chris Covelli, a sergeant with the Lake County Sheriff’s Office, told reporters yesterday. But Highland Park police reported the incident to the Illinois State Police, which took no action.
State police offered two explanations for that. First, the future mass murderer at that point did not have a firearm owners identification card (FOID), which is required to legally buy or own guns in Illinois, and had not applied for one. Second, Reuters reports, state police “said no relative or anyone else was willing ‘to move forward with a formal complaint’ or to provide ‘information on threats or mental health that would have allowed law enforcement to take additional action.'”
The state’s red flag law, which took effect at the beginning of 2019, authorizes police as well as family members to seek a “firearms restraining order” that bars the respondent from purchasing or possessing guns. But if the future killer’s relatives were uncooperative, collecting evidence to support a petition would have been difficult, since the case hinged on their account of his words and actions.
Like the other states with red flag laws, Illinois gives people who are concerned that someone poses a danger two options. They can obtain an “emergency” order, which is issued without a hearing or notice, if a judge decides there is “probable cause to believe that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another.” Such ex parte orders last up to two weeks, at which point the respondent actually gets a chance to respond.
Alternatively, or when an ex parte order is about to expire, a petitioner can seek a six-month order, which requires a hearing. The standard at that point is “clear and convincing evidence” that the respondent poses “a significant danger…in the near future.” If an order is issued, it can be renewed for another six months based on a showing that the respondent continues to pose a significant danger.
The evidence that a judge is required to consider includes “threats of violence or acts of violence by the respondent directed toward himself, herself, or another.” That certainly seems relevant in this case. But again, police would have had a hard time presenting such evidence without the family’s cooperation.
Three months after his second encounter with police, the alleged killer, then 19, obtained an FOID. Because he was younger than 21, he needed the written consent of a parent or guardian, which his father supplied. A lawyer representing the father told the Times “his client did not believe there was an issue” and “might not have understood what happened with the knife seizure because it did not happen in his house.”
If the father had recognized the threat his son posed, he presumably would not have supported the FOID application, which would have prevented the killer from legally buying guns until he turned 21—i.e., last September. But in that case, the father probably would have been willing to file or support a red flag petition.
The other requirements for an FOID largely track federal restrictions on gun ownership, which among other things disqualify people with certain kinds of criminal or psychiatric records. None of those disqualifications applied.
For the same reason, the alleged murderer passed background checks when he bought several guns, including the Smith & Wesson M&P 15 rifle that police say was used in the attack, in 2020 and 2021. According to Reuters, “police said the only offense detected…during background checks was for unlawful possession of tobacco in 2016.” There were “no mental health prohibiter reports.”
In retrospect, it is easy to say that state police made a disastrous mistake by failing to seek a red flag order. Based on documentation of the two police calls, they might have met the probable-cause requirement for an ex parte order. But presenting clear and convincing evidence of a continuing threat to justify a six-month order was another matter. If no one with relevant knowledge was willing to come forward, it is hard to see how police could have satisfied that standard. And even if they had, the order would have had to be repeatedly renewed to block the gun purchases, the last of which happened two years later.”
“There’s only so much that schools can do to defend against a determined individual with access to guns. Militarizing public schools doesn’t foster a welcoming learning environment, nor is it particularly cost-effective for taxpayers.
“Installing bulletproof glass in all the windows — stuff like this is hideously expensive and not sensible. There’s only so far you can go to harden a public facility,” said Robert Spitzer, a professor at SUNY Cortland who studies the politics of gun control.
But a simple security upgrade could have made it harder for the shooter to enter the school: ensuring that the doors were locked. There were three exterior doors in the west building where the shooting took place, and all three had been left unlocked, according to the report. The door to one of the classrooms where the shooter took his victims was also known to have a faulty lock, but no one had created a work order to repair it. School staff also frequently propped doors open, especially for substitute teachers who didn’t have their own keys.”
“The problem is that there’s very little evidence that surveillance technology effectively stops these kinds of tragedies. Experts even warn that these systems can create a culture of surveillance at schools that harms students. At many schools, networks of cameras running AI-based software would join other forms of surveillance that schools already have, like metal detectors and on-campus police officers.
“In an attempt to stop, let’s say, a shooter like what happened at Uvalde, those schools have actually extended a cost to the students that attend them,” Odis Johnson Jr, the executive director of the Johns Hopkins Center for Safe and Healthy Schools, told Recode. “There are other things we now have to consider when we seek to fortify our schools, which makes them feel like prisons and the students themselves feel like suspects.”
Still, schools and other venues often turn to surveillance technology in the wake of gun violence.”
“Even more advanced forms of surveillance tech have a tendency to miss warning signs. So-called weapon detection technology has accuracy issues and can flag all sorts of items that aren’t weapons, like walkie-talkies, laptops, umbrellas, and eyeglass cases. If it’s designed to work with security cameras, this tech also wouldn’t necessarily pick up any weapons that are hidden or covered. As critical studies by researchers like Joy Buolamwini, Timnit Gebru, and Deborah Raji have demonstrated, racism and sexism can be built inadvertently into facial recognition software. One firm, SN Technologies, offered a facial recognition algorithm to one New York school district that was 16 times more likely to misidentify Black women than white men, according to an analysis conducted by the National Institute of Standards and Technology. There’s evidence, too, that recognition technology may identify children’s faces less accurately than those of adults.”
“Research conducted by Johnson, the Johns Hopkins professor, and Jason Jabbari, a research professor at Washington University in St. Louis, found that a wide range of surveillance tools, including measures like security cameras and dress codes, hurt students’ academic performance at schools that used them. That’s partly because the deployment of surveillance measures — which, again, rarely stops mass shooters — tends to increase the likelihood that school officials or law enforcement at schools will punish or suspend students.
“Given the rarity of school shooting events, digital surveillance is more likely to be used to address minor disciplinary issues,” Barabas, the MIT researcher, explained. “Expanded use of school surveillance is likely to amplify these trends in ways that have a disproportionate impact on students of color, who are frequently disciplined for infractions that are both less serious and more discretionary than white students.”
This is all a reminder that schools often don’t use this technology in the way that it’s marketed. When one school deployed Avigilon’s software, school administrators used it to track when one girl went to the bathroom to eat lunch, supposedly because they wanted to stop bullying. An executive at one facial recognition company told Recode in 2019 that its technology was sometimes used to track the faces of parents who had been barred from contacting their children by a legal ruling or court order. Some schools have even used monitoring software to track and surveil protesters.”
“Even once you identify some details that many of the attackers have in common, such a large swath of the population shares these traits that the “profile” is fairly useless for prevention. Red flag laws circumvent that problem by focusing less on a type of person and more on a type of emotional and situational crisis — where the people involved aren’t necessarily “bad guys” but troubled individuals in need of help. Gill thinks of it as a public health approach, analogous to the way we treat physical health problems that are hard to profile.
“We know that raised cholesterol leads to heart problems. We don’t have the ability to predict who in the general population who already has raised cholesterol will go on to have a heart attack. So we put in place prevention policies to try to decrease cholesterol in the whole ‘at risk’ community,” he said.
For the researchers who study mass violence, what’s appealing about red flag laws is that these rules have the potential to shift the emphasis from a cut-and-dried checklist of dangerous traits to a more nuanced system that accounts for a person’s big-picture emotional state.”
“these researchers supported red flag laws because they could create a clear plan of action for friends and family concerned about a loved one’s combination of emotional crisis and violent threats. It creates a place to take concerns, a system to evaluate those concerns and a means of mitigating them. That’s particularly true, researchers said, if national red flag laws are set up so that the system isn’t punitive. Ideally, the process would focus on helping a person get through to the other side of an emotional crisis rather than putting them in jail. It’s also important, the researchers said, to make sure the laws are focused on professional evaluations of overall behavior, not checklists.”
“there’s some evidence this could work. An analysis of records from California, where one of the first red flag laws was enacted in 2016, found at least 21 cases where the laws had been used specifically because people around a person were worried about their potential to commit a mass shooting. As of 2019, none of those people had followed through on that potential. It’s impossible to know, however, how those risks would have played out if the red flag hadn’t been there.
But if those parts work together the way they should, then red flag laws really could be a useful tool for combating the segment of mass shootings that function like very public, violent suicides. “There’s an important piece when we interviewed school shooters and active threat cases,” Randazzo said. “They feel very strongly about two things: They have to carry out the violence, they have no options left, but they also don’t want to do it and hope someone will stop them.””
“The New York Times reckons that four gun control measures Congress is considering “might have changed the course of at least 35 mass shootings” since 1999—one-third of attacks in which a gunman killed at least four people. While that conclusion is excessively optimistic, the newspaper is at least asking the right question: Are new restrictions on firearms likely to work as advertised?
President Joe Biden, by contrast, simply assumes the wisdom of the policies he favors and the bad faith of anyone who opposes them. “The issue we face is one of conscience and common sense,” he insisted last week, implying that skeptics lack one or both.
Among other things, Biden wants Congress to require background checks for private gun transfers, which means such transactions must be completed through a federally licensed dealer. The Times found that four of the mass killers in the 105 cases it examined bought guns in private transactions.
One of those perpetrators had already failed a background check. One of the other three, the Violence Policy Center reports, “legally bought” a pistol from a gun shop. According to a 2013 review in The Atlantic, it is not clear whether either of the two other killers had disqualifying criminal or psychiatric records.
In at least one case out of 105, then, an expanded federal background-check requirement might have been an obstacle. But that’s assuming private sellers generally would comply with that mandate, and data from states that notionally require “universal background checks” suggest such rules are widely flouted.
The Times found that at least 20 mass murderers used magazines that held more than 10 rounds. The 1994 federal “assault weapon” law, which expired in 2004, prohibited the production and sale of such magazines, and Biden wants Congress to renew that limit.
Even if we assume that the need to switch magazines after firing 10 rounds can make an important difference in mass shootings, the effectiveness of a ban is doubtful. A 2004 report commissioned by the Justice Department found that the 1994 ban had no measurable impact on the use of “large capacity magazines” in crimes, probably “due to the immense stock of exempted pre-ban magazines”—a stock that is even bigger now than it was then.
In 10 of the 105 mass shootings analyzed by the Times, the perpetrators used stolen guns. The paper suggests “safe storage” legislation backed by Biden might have made a difference in those cases.
One such bill would establish a $500 fine for gun owners who fail to secure their weapons in circumstances where a minor “is likely to gain access” to them or in households where a resident is legally barred from possessing firearms. If a minor or prohibited person uses an unsecured gun to injure or kill someone, the owner would face up to five years in prison.
The bill also would provide grants aimed at encouraging states to establish and enforce similar requirements. The idea that such laws could prevent would-be mass shooters from obtaining firearms assumes wide compliance and a lack of alternative sources, both of which are debatable assumptions.
The Times says “four of the gunmen might have been stymied” by a law prohibiting federally licensed gun dealers from selling semiautomatic centerfire rifles that accept detachable magazines to anyone younger than 21. That bill, which Biden also supports, avoids the arbitrary distinctions drawn by “assault weapon” bans, which target guns based on functionally unimportant characteristics.
Since the bill does not apply to private transfers, however, adult buyers younger than 21 could still legally obtain semiautomatic rifles. Furthermore, a federal appeals court ruled last month that prohibiting young adults from buying such firearms because a tiny fraction of them might commit violent crimes was inconsistent with the Second Amendment.
Before deciding whether to support policies like these, legislators should rationally weigh their costs and benefits, including their constitutional implications. Biden prefers a different approach, replacing logic and evidence with self-righteous certitude.”
“In 2019, New York enacted an extreme risk prevention law, otherwise known as a “red flag law,” that can bar individuals who are believed to pose a danger to themselves or others from possessing firearms. New York state police decided not to invoke that law against the Buffalo shooter, who didn’t have a previous criminal record, but had made serious threats of violence. On Wednesday, Hochul issued an executive order requiring police to do so going forward.”
“She also called on the state legislature to pass bills that would require police to report guns associated with crimes within 24 hours and mandate that semiautomatic pistols sold in New York be microstamped so that law enforcement can link cartridges found at crime scenes to the gun that fired them. And she announced the creation of a dedicated domestic terrorism unit within the state police, along with efforts to investigate social media companies that have provided platforms for hate speech.
The goal is to ensure that people like the Buffalo shooter don’t fall through the cracks again. When the shooter was 17, he said that he wanted to commit murder-suicide at his high school. He was required to undergo a psychological evaluation and referred to police, who decided not to take further action for reasons still unknown. So when he turned 18, there was nothing preventing him from legally purchasing a weapon. And he did. The weapon he used in the shooting was purchased from a store in Endicott, New York: a Bushmaster semiautomatic rifle that he illegally modified to increase its capacity.
Under New York’s red flag law, that never should have happened.”
“Cornyn hoped to get as many as 20 Republican votes for his legislation, which would enact new enhanced background checks on people younger than 21, grant states money for red flag laws and crisis intervention and close a loophole on domestic abusers’ firearm access. On Monday the vast majority of the conference voted against advancing the legislation, with 14 Republicans voting to advance the legislation and supportive Sen. Pat Toomey (R-Pa.) absent.”
“Faced with a chorus of boos and a rebuke from the Texas GOP over the weekend, Cornyn got a taste of what the reaction could be on the right for Republicans who vote for the Senate’s bill designed to curb mass shootings in America. What’s more, on Monday evening the NRA announced opposition to the package crafted by a quartet of senators that includes Cornyn, whose A+ rating from the gun group is probably about to take a downgrade.”