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Red Flag Laws and the Colorado LGBTQ Club Shooting

The killing of five patrons at an LGBTQ bar in Colorado on November 19, 2022 is the latest mass shooting to make headlines in the United States

Police said they have not yet determined a motive. But one thing that has emerged is that the suspect had a history of violent schemes and allegedly threatened to attack his mother with a homemade bomb more than a year before the attack at Club Q.

It has led to questions about why this earlier alleged incident didn’t trigger Colorado’s “Red Flag” law — something that may have prevented him from acquiring the AR-15-style semi-automatic weapon that police say that it was used in the attack on Club Q. The Conversation asked Alex McCourt, a gun law expert at Johns Hopkins University, to explain how red flag laws are supposed to work — and why they didn’t fire in this case.

What are Red Flag Laws?

Red flag laws — also known as “extreme risk protection orders” — allow judges to make a decision that results in a person who is at high risk of harming themselves or others being prosecuted firearm is temporarily removed. They also prevent that person from buying weapons for a period of time.

They aim to protect against the actions of people who have made violent threats or may be going through some kind of crisis.

They work so that certain people can ask a court to issue an order if someone is believed to be behaving dangerously or making violent threats.

The categories of people who can petition in this way vary from state to state. But all of the states that have enacted such laws — 19 plus the District of Columbia — are among those that can petition the court to impose a red flag.

Household and family members are also frequently listed. And in Maryland, Hawaii and the District of Columbia, public health officials can petition the court if they are concerned about a patient’s behavior. In California, Hawaii, and New York, teachers or school administrators are on the list of people who can petition the court.

If the court finds there is sufficient evidence of a risk of violence, a judge will typically issue an ex parte — or interim — order. These cover a very short period of time before a hearing can take place. At this subsequent hearing, the potential suspect can argue that he is not dangerous.

If the court decides that there is indeed a risk, it will issue a longer-term order. In most cases, it extends over a period of up to one year. The person affected by the gun ban may be able to request the early termination of the order if, for example, they can prove that their mental crisis is over or that they have received adequate treatment. The petitioner can also request that the order be renewed at the end of the year.

Does Research Show Red Flag Laws Work?

The first thing to note is that the legislation is relatively new – most having been enacted in the last ten years. Researchers are still evaluating the data. However, studies have shown that they can be effective in preventing mass shootings and possibly suicides.

2019 research found that among a group of cases in which guns were removed from individuals who threatened mass shootings in California, none of the individuals carried out mass shootings. A 2022 study evaluated extreme risk protection orders in six states. It found that all the states observed issued orders based on mass shooting threats – 20% of these cases involved threats against schools and 15% against intimate partners or family members.

Although these laws are relatively new, research analyzing the legislation suggests they can help prevent suicide.

So there is enough evidence that they can be used to prevent deaths. But these measures are so new that we need to know more about how well states are implementing them. Research to date suggests that public awareness of extreme risk protection orders is low and that efforts to educate the public and facilitate petitioning could be helpful.

How well are warning signals implemented in the states?

Connecticut and Indiana both had early versions of red flag laws in place in 1999 and 2006, respectively, but the policy was really developed after the 2012 Sandy Hook shooting. Since that incident – in which 20 children and six adults were killed by a gunman – another 17 states and Washington, DC, have added extreme risk protection orders to their statutes. Most have arrived since the Parkland school shooting of 2018.

One of the areas where more research is needed is the implementation of red flag laws. There seem to be major differences – both from state to state and within states where laws are in place.

Incomplete implementation can be the result of a combination of factors. As they are fairly new, there is a knowledge gap – meaning potential petitioners may not know that a red flag order is an option or how to file an order.

But it’s also true that there has been a lot of opposition from certain counties and sheriffs, who have said they will not enforce these laws over Second Amendment concerns. This seems to be more the case in rural areas. But this has not been systematically studied so far.

Any chance of a federal red flag law?

Congress sends historic gun safety legislation to Biden with GOP support

There has been some debate among proponents about attempting to pass federal legislation. But to date, the most important action taken at the federal level is to make it easier for individual states to pass warning signals. The Biden administration has pushed for their adoption, and the Justice Department has issued model laws for states to use.

Meanwhile, the Bipartisan Safer Communities Act, passed in June 2022, allows for the distribution of funds to states for crisis intervention programs, including the introduction of extreme risk protection orders.

What was in place in Colorado?

Colorado’s Red Flag Act was enacted in 2019. It allows law enforcement agencies and family or household members to petition a court. If approved, a court can order a person’s weapons removed for up to a year.

A 2021 study of the first year of implementation of the Colorado law found that 85% of the time it was law enforcement who initiated the process, and 15% of the time it was household or family members making an application put.

It was absorbed more slowly in Colorado than in some other states. However, there have been some questions as to whether this extends beyond the timing of the law – it was implemented just before the start of the COVID-19 pandemic, leaving people under stay- at home orders.

Still, the study found that there were a significant number of sheriffs and counties who said they would not enforce the law. There is no real legal basis for this; it is more of a symbolic or political stance. But it has implications for red flag laws, as law enforcement officials may not have the training or inclination to follow red flag orders.

Why wasn’t it triggered in this case?

Not very many details have been released as to why the Colorado shooter was not issued a red flag order. Early reports suggest this appears to be a classic example of someone making a threat, in this case threatening his mother with a homemade bomb – and as such would qualify for an order. However, there are reportedly no public records showing that law enforcement or a family member responded to this threat and filed a petition with the court.

Experts can only speculate as to why this is so. Notably, however, it happened in a county where the sheriff has opposed Colorado law and previously said his officers will only seek an order under “urgent circumstances.”The conversation