Supporters of "red flag" laws, which allow judges to suspend people's Second Amendment rights when they are deemed a threat to themselves or others, argue that such statutes help prevent mass shootings by identifying people inclined to commit such crimes before they act. But Indiana's red flag law, the second-oldest in the country, failed to prevent last week's mass shooting at a FedEx sorting facility in Indianapolis, even though police used the law to seize a shotgun from the perpetrator in 2020. He legally purchased the rifles used in the shooting a few months later, a revelation that suggests such laws are not as effective as advertised.
So far 19 states and the District of Columbia have red flag laws, and polls indicate they have broad public support. A 2019 survey, for instance, found that 70 percent of Americans favored letting police "seek a court order to temporarily take away guns if they feel a gun owner may harm themselves or others." President Joe Biden wants more states to pass red flag laws, and he has instructed the Justice Department to write model legislation toward that end. But what happened in Indiana should give pause to anyone who thinks such laws will have a noticeable impact on mass shootings.
Indiana's law was enacted in 2005, after a man diagnosed with paranoid schizophrenia used a rifle to kill one Indianapolis police officer and injure another four. The law allows a police officer to seek a gun confiscation order against someone he believes "presents an imminent risk" to himself or others. It also applies to someone who poses a threat that is not immediate but who "has a propensity for violent or emotionally unstable conduct" or who "has a mental illness that may be controlled by medication" but has not been diligent about taking it.
Under Indiana's law, a police officer can seize guns without a court order, in which case he is supposed to file an affidavit explaining his reasons after the fact. If a judge agrees that the officer had probable cause, police can keep the confiscated weapons. A hearing is required within 14 days, at which point the state has to prove by "clear and convincing evidence" that the gun owner meets the law's criteria. After at least six months have passed, the gun owner can seek the return of his property. He has to prove by "a preponderance of the evidence" that he "is not dangerous."
In March 2020, Indianapolis Police Chief Randal Taylor said yesterday, the FedEx shooter's mother told police she thought he was suicidal and might even try to commit "suicide by cop." Her son, then 18, was taken to a hospital on a "mental health temporary hold," and police seized his shotgun. The case "never made it to the court," Taylor said, because prosecutors did not seek a red flag order. But Taylor said police kept the gun after its owner agreed to surrender it.
Because a red flag order was never issued, the Indianapolis shooter was not barred from buying other firearms, and evidently he did not have a criminal or psychiatric record that would have made those purchases illegal. That is typically the case with mass shooters, a fact that suggests expanded background checks for gun buyers, another popular response to such crimes, would not have much of an impact on them.
In retrospect, it is easy to fault prosecutors for not seeking a court order, which would have legally barred this young man from buying or possessing firearms for at least six months. If he successfully challenged the order at that point, he still could have legally bought the guns he used in the FedEx attack. If he did not go to court or failed to make the required showing, however, the order might still have been in place at the time of the shooting.
But the risk that motivated the shotgun seizure was suicide, not homicide, and prosecutors apparently thought the psychological crisis had already been adequately addressed. "What could have occurred," Marion County Prosecutor Ryan Mears told The New York Times, "is the point was: 'Let's get the gun out of there, make sure the gun is not returned,' if that was the agreement that was made. And I'm not saying that it is the case. But there's no reason to go in front of the judge at that point in time, because the point is we want to take the weapon away."
University of Indianapolis psychologist Aaron Kivisto, who has studied the impact of Indiana's statute, notes that such laws aim to intervene during a period of heightened risk. "Most suicides are fairly impulsive acts," he told the Times. "And if the person can get through the short-term crisis, the suicide doesn't occur."
Back in March 2020, there was no indication that a troubled, possibly suicidal 18-year-old was apt to commit mass murder. While a neighbor recalled him as "an angry young man who always seemed to be 'mad at the world,'" that description could apply to millions of people, an infinitesimal percentage of whom end up committing crimes like this.
The difficulty of predicting which of the country's many angry oddballs are bent on murder is the main weakness of red flag laws as a response to mass shootings. The more mindful states are of due process and evidence when they prohibit people from owning guns, the more likely it is that someone like the Indianapolis shooter will slip through even when he attracts police attention. But casting a wider net inevitably means that many harmless people will lose their Second Amendment rights based on erroneous predictions of what they might otherwise have done.
Since the risk of letting future murderers keep or buy guns looms much larger in the minds of legislators and judges than the risk of unjustly taking away people's constitutional rights, laws and legal processes tend to err in the latter direction. That is why red flags, especially the ones passed in recent years, generally lack adequate due process safeguards. It is also helps explain why judges in some states approve nearly all of the applications they receive.
Even when states have due process protections on the books, they are not necessarily enforced. Notwithstanding Indiana's requirement that a hearing be held within two weeks of a gun seizure, a 2015 study reported in the journal Behavioral Sciences & the Law found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. When a hearing finally was scheduled, most of the gun owners did not show. But when they did, they usually prevailed, meaning judges decided the state had not met its burden of proving them dangerous. During the last 71 months covered by the eight-year study, gun owners won every contested case.
There is no solid evidence that red flag laws have any measurable impact on the homicide rate. But they certainly deprive many Americans of the fundamental right to armed self-defense even when they pose no real threat to public safety. As is often the case, politicians are happy to trade civil liberties for the illusion of security.