Mass Shootings

Why Didn't California's 'Red Flag' Law Stop the San Jose Shooter?

Even when states authorize gun confiscation orders, identifying would-be mass shooters is a daunting challenge.

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People who worked with the perpetrator of yesterday's mass shooting in San Jose expressed "generalized concerns about his mental health," according to Mayor Sam Liccardo. The man's ex-wife, who had not interacted with him for 13 years, recalled that he was "not mentally stable," often expressed anger at his bosses and co-workers, and even talked about killing them. His former girlfriend, who accused him of "forc[ing] himself on me sexually" when he was intoxicated, said he had mood swings that were exacerbated by alcohol. A neighbor described him as short-tempered, saying, "I was afraid of him. My wife was scared of him too."

The shooter apparently set his house on fire before killing nine fellow employees and himself at a Santa Clara Valley Transportation Authority maintenance facility. He seems like just the sort of person who was supposed to be stymied by a "gun violence restraining order" (GVRO) under California's expansive "red flag" law, which would have forbidden him to possess firearms or ammunition for up to five years. That law, which was inspired by the 2014 massacre in Isla Vista, was presented as a way of preventing crimes like this.

The fact that the red flag law did not stop the San Jose attack, or the other mass shootings that California has seen since the law took effect, highlights the limitations of this crime prevention strategy. The same could be said of California's other gun controls, which include bans on "assault weapons" and magazines that hold more than 10 rounds, universal background checks and waiting periods for gun buyers, and a virtual ban on public carry. (The shooter had 11 magazines, and police said the pistols used in the attack were legally purchased in California.) The expectation that such measures will prevent mass shootings shows how the focus on one rare type of violence distorts the debate about gun control.

A few weeks before the San Jose massacre, Assemblymember Phil Ting (D–San Francisco), who wrote a 2020 bill that expanded California's red flag law, released data showing that a record number of GVROs were issued last year. The annual number of orders rose 15-fold between 2016 and 2020, from 85 to 1,285. All told, more than 3,000 GVROs have been approved since the red flag law took effect at the beginning of 2016.

"I'm glad that Californians have a tool to intervene to save lives and prevent tragedies," Ting said in a press release. "The COVID-19 restrictions that kept people home may have influenced the rise," he told the Los Angeles Times, "making them more mindful of the behaviors of others and open to seeking help from law enforcement or the courts directly." But as the San Jose shooting shows, such mindfulness is not enough, because it is nearly impossible to predict which of the country's many angry, aggrieved, and troubled residents will commit this sort of crime.

California allows both police and a long list of other potential petitioners to seek GVROs. That list initially included "any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household." Ting's bill, which took effect in September, added employers, co-workers, and school employees to the list.

The idea behind letting so many people file petitions directly, rather than bringing their concerns or complaints to the police, is that it will make it easier to identify and promptly disarm potentially dangerous individuals. The risk of such a broad approach is that it makes it more likely that people will lose their Second Amendment rights due to malicious or erroneous allegations by biased petitioners. But so far in California, both the benefit and the danger have remained mostly theoretical. Ting's numbers indicate that law enforcement officials obtained more than 95 percent of the GVROs issued in 2020—all but 59. A review of earlier cases found that nearly 97 percent were initiated by a law enforcement officer.

Police can obtain a "temporary emergency gun violence restraining order," which lasts up to three weeks, by showing there is "reasonable cause" to believe the respondent "poses an immediate and present danger" to himself or others. Other petitioners can obtain an "ex parte gun violence restraining order" of the same duration by showing there is a "substantial likelihood" that the respondent "poses a significant danger, in the near future," of injuring himself or others with a firearm.

At this stage, respondent is a misnomer, because the orders are issued without giving the target a chance to respond. He is supposed to get that opportunity at a hearing within 21 days of the initial order (although he has no right to legal representation if he can't afford it). Among other things, the judge is supposed to consider the respondent's history of threats or violence, his "abuse of controlled substances or alcohol," and "any other evidence of an increased risk for violence"—factors that presumably would have weighed against the San Jose shooter.

After the hearing, the judge is required to issue a GVRO if he determines there is "clear and convincing evidence" that the respondent "poses a significant danger" of injuring himself or others. That danger need not be imminent, and it is not clear what "significant" means in this context.

The post-hearing GVRO lasts for one to five years and can be extended if a petitioner requests it. Once a year, the respondent can ask that the order be lifted, which is supposed to happen if there is no longer clear and convincing evidence that he poses "a significant danger."

In theory, then, the San Jose shooter's employer, his co-workers, or possibly his ex-girlfriend (if she lived with him during the previous six months) could have sought a GVRO against him, which would have made it illegal for him to possess or purchase firearms or ammunition. Assuming he did not obtain guns from an unmonitored source, such an order could have prevented yesterday's mass shooting.

That did not happen, which is not really very surprising. After all, mass shooters represent a minuscule percentage of short-tempered, angry, resentful Californians. Those common traits may be seen as harbingers of murderous violence only in retrospect. Even the San Jose shooter's ex-wife, who was reporting her recollections from more than a decade ago, said she never took him seriously when he talked about killing people at work.

A 2019 study of California's red flag law described 21 cases in which fear of a mass shooting prompted police or relatives to seek GVROs. In some cases, the evidence was genuinely alarming, while others featured threats that may have been idle or facetious. Judging from "print, broadcast, and Internet media searches using Google," the researchers said, the respondents in those cases did not subsequently commit any noteworthy violent crimes.

"It is impossible to know whether violence would have occurred had GVROs not been issued, and we make no claim of a causal relationship," gun violence researcher Garen Wintemute and his co-authors wrote in the Annals of Internal Medicine. "Nonetheless, the cases suggest that this urgent, individualized intervention can play a role in efforts to prevent mass shootings."

Given the rarity of mass shootings, it seems clear that few, if any, of these 21 GVRO targets had serious plans to commit one. Prior to 2016, when the red flag law took effect, California was seeing an average of about two mass public shootings (defined as incidents in which the shooter killed four or more people in a public place) per year. Since then, there have been at least eight, or an average of about 1.5 a year.

While Assemblymember Ting might see the drop as evidence that the red flag law is working as intended, it would be risky to draw any conclusions at all from trends in such tiny, volatile numbers. Even if GVROs have prevented mass shootings, it probably would not be possible to measure that result with any confidence.

Red flag laws, which 19 states and the District of Columbia have enacted, are commonly touted as a way to stop mass shootings. But that is far from their main use. While Ting's tally does not include information on the motivation for GVROs, data from other states indicate that a large majority of gun confiscation orders are aimed at preventing suicide, not homicide. And even when petitioners allege that someone is a danger to others, the risk of a mass shooting is bound to be infinitesimal, since such crimes account for a tiny share of gun homicides and an even tinier share of unlawful firearm use.

The focus on mass shootings is therefore highly misleading in assessing the costs and benefits of red flag laws. A more relevant question is what percentage of people subject to gun confiscation orders actually would have used a firearm to kill themselves or others. Given the weak due process protections that are typical of red flag laws, that percentage is probably pretty small.

Data from Florida and Maryland indicate that judges nearly always grant ex parte orders. In Florida, judges issue final orders about 95 percent of the time. I have not seen comparable data for California, but its "significant danger" standard is amorphous enough to allow post-hearing orders in almost every case.

Although there is no evidence that red flag laws have an impact on homicide rates, a few studies suggest they may prevent suicides. But even those estimates indicate that the vast majority of people disarmed by these laws—90 to 95 percent—were not actually suicidal, or at least not suicidal enough to complete the act.

If you attach no value to the constitutional rights that people lose for the duration of a red flag order, those odds may not bother you. But if you think something important is lost when the government deprives someone of the fundamental right to armed self-defense, your assessment is apt to be different.

Update: The Wall Street Journal reports that Customs and Border Protection detained the San Jose shooter in 2016 after he returned from a trip to the Philippines. According to a Department of Homeland Security memo obtained by the Journal, he had "books about terrorism and fear and manifestos…as well as a black memo book filled with lots of notes about how he hates the VTA [Valley Transportation Authority]." But "when asked if he had problems with anybody at work, he stated 'no.'"

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  1. Laws aren’t magic?

    Oh!

    My!

    God!

    1. Wait a minute now… “Red flags” are carried by the gap-toothed hicks in fly-over country, right? And “Blue flags” are carried by the likes of the violent thugs of “AntiFa”, right? The guns of the “Red flag fliers” will be confiscated, and the guns of the “Blue flag fliers” will NOT? I have seen NO mention of the “Blue flag fliers” in this context!!! Is this NOT some highly suspicious political bias going on here?!?!

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  2. Cue Tony posting about how government is good for us.

    1. We need government. It’s both necessary and the greatest threat to our species.

      We need laws. We need contract enforcement. Property rights, etc.. Human society seems to thrive when we delegate away the use of force to government. Granted now we’ve got unaccountable thugs who use force with impunity, but it’s better than anarchy. Especially since anarchy will soon turn into some form of government when the biggest gang gains the monopoly on organized violence.

      1. Some people seem to need government more, way more, than others.

        1. Creating is difficult. Taking is easy. Government takes. So it’s no surprise that some people really like lots of government. Saves them from creating.

          1. You just described about half the population.

            1. A lot more than that. What percentage of the population is on SSI or something similar, and how many aspire to it? When I was a teenager I knew people whose goal in life was to have a kid and then have the government pay their bills for the next 18 years.

        2. Yes. Especially people who come from countries with traditions not rooted in Western Civilization. This is why eliminating the quota system was a big mistake.

          1. Which group(s) would that be?

          2. Cue OBL?

      2. That is a legitimate problem with anarchy. Because you’re never going to get rid of the Tony’s or the Biden’s or the Santorum’s. Not without stooping to Tony levels of depravity.

        So it’s basically a choice between the devils you know and the devils you don’t.

    2. I’d say we’re getting both government and anarchy.

      1. There’s a term that someone coined for exactly this phenomenon, where the government is heavy handed in enforcing petty laws among regular people but do nothing about roving bands of thugs. I can’t seem to recall it.

        1. Anarcho-tyranny is the word I’m looking for.

          1. I thought you were being sarcastic…

            Anarchotyranny is exactly the term you’re looking for.

  3. The man who killed nine co-workers at the light rail yard in San Jose, California, had two semi-automatic handguns and 11 magazines on him, Santa Clara County Sheriff Laurie Smith tells CNN’s Josh Campbell.

    “I don’t know if he re-loaded, I don’t know the number of rounds that he fired, but of the people who were injured, none survived,” Smith said. “They were handguns of the type that would be legal in California.”

    1. They were handguns of the type that would be legal in California.”

      Sounds like the perfect opportunity to create a new law.

    2. Which 11 magazines did he have on him? I’ll start

      Popular Pseudoscience, with a Dr. Fauci pictorial.

      1. “Postal Today”

        Seriously don’t know; this is the only mention of weapons I’ve seen; figured with wasn’t anything like an AR of the pics would have been all over the news before now, with the usual “AH-HA” smoking gun commentary.

        CA does however have a 10 round capacity limit, but they might have been older ones unaccounted for.

        1. He likely—I haven’t seen the crime scene—got his victims in a confined space, and made sure they were dead. It’s hard to kill people (vice wounding them) with a handgun. But, if you shoot them in the head repeatedly; that often works.

      2. Garden and Gun?

  4. So they already have an AWB; they have waiting periods; they limit who can legally carry a concealed weapon; and apparently have a very broad and far reaching red flag law, and none of this had any impact whatsoever.

    And we are already hearing how the rest of the country needs to be more like California in this regard in order to prevent such tragedies.

    1. California is a model society. That’s why everyone’s leaving it.

      1. They’re really missionaries, bringing the salvation to other States.

        1. Sadly there’s some truth to this.

    2. Demographics are a significantly larger predictor of gun violence than gun ownership.

  5. “Section 230, which is a liability shielding gift from the U.S. to ‘Big Tech’ (the only companies in America that have it—corporate welfare!), is a serious threat to our National Security & Election Integrity,” the Trump once tweeted.

    There’s your “logic” from Der TrumpfenFuhrer, and MANY conservaTurd commenters on these pages.

    By the EXACT SAME logic, ANY laws shielding gun and ammo manufacturers and-or sellers (Remington for example) need to be held accountable for the shootings of crazy users of their products! Remington, exercise better editorial control of your bullets!

    Hey conservaTurd assholes-commenters who oppose Section 230! Ye moochers off of a “liability shielding gift from the U.S. to ‘Big Guns and Ammo Tech’”…

    You ready to pay $90,000 per gun and $15 per ammo-round, or pay out the ass for insurance, for your guns? No? Then you are hypocrites ass usual!

    1. That’s it squirrel, consider yourself MUTED

    2. >>ANY laws shielding gun and ammo manufacturers and-or sellers (Remington for example) need to be held accountable for the shootings of crazy users of their products!

      the laws need to be held accountable?

      1. Yeah. ROFLMAO quoting a Trump tweet to make a less coherent argument. Again, the guy wasn’t a 12-D chess master as much as a borderline-capable 2-D chess player opposed by people who have trouble with number lines and long division.

  6. >>often expressed anger at his bosses and co-workers, and even talked about killing them.

    jfc hear something say something?

  7. Samuel Cassidy was a 57-year-old public transit employee who was named as the mass shooting suspect who murdered nine people, including co-workers, during a union meeting at a light rail yard in San Jose, California, on May 26, 2021.

    I wonder if the Union will fight to protect his job?

  8. The fact that the red flag law did not stop the San Jose attack, or the other mass shootings that California has seen since the law took effect, highlights the limitations of this crime prevention strategy. The same could be said of California’s other gun controls, which include bans on “assault weapons” and magazines that hold more than 10 rounds, universal background checks and waiting periods for gun buyers, and a virtual ban on public carry.

    “Well, perhaps such laws did not work in this particular instance. But clearly they potentially stop *many* similar shootings. And this tragic failure indicates the need for more targeted, uh, *general* common-sense firearm laws.”

    1. “potentially”? That is a really stupid argument to post for all to see.
      Tinfoil hats can “potentially” protect one from Havana syndrome too.

      1. “potentially”? That is a really stupid argument to post for all to see.

        Not half as stupid as your inability to recognize blindingly obvious sarcasm.

      2. Or the tinfoil hat could catch your head on fire if you get hit with the microwave pulse.

  9. So, what this tells us is what we already know: most gun laws are just so much virtue signaling by leftist politicians.

    1. In part, but their greater utility is in restricting the self defense capabilities of ordinary citizens and creating opportunity for selective prosecution of political opponents.

  10. “Even when states authorize gun confiscation orders, identifying would-be mass shooters is a daunting challenge.”

    Daunting: causing fear or discouragement; intimidating

    Sullum opens by challenging them about their challenge while offering some consolation as to explain their repeated failures….It’s sooooo hard. Don’t worry, Sullum. Progs never tire of failing to find solutions and making careers out of offering/demanding more failed laws and policies toward a constitutionally unreachable goal.

    1. >>identifying would-be mass shooters is a daunting challenge.”

      basically fucking impossible. false goal.

  11. This one is on the democrats.
    If they were not so set on light rail, there would be no light rail yards, and this would never have happened.

  12. Data from Florida and Maryland indicate that judges nearly always grant ex parte orders.
    Duh. “If I don’t issue an order and anything happens, I’m shafted. If I do issue an order and nothing happens, I only shaft the gun-owner. No-brainer.”

  13. Wasn’t the guy treated for depression?
    I thought I read in one of the news ass-wipes that the guy had sought mental health help.

    1. Haven’t read that yet (this is a local story for me). But according to his ex-wife and more recent ex-girlfriend he was prone to mood swings made worse by his drinking. He was abusive, angry and talked about killing his coworkers

  14. By the way, what is the State’s interest in preventing suicide?

    1. Only suicide by gun is bad, because guns are bad.

    2. Dead people (regardless of cause of death) don’t pay taxes! And they can’t be drafted as war-slaves!

  15. https://twitter.com/EricG1247/status/1397621359874691073?s=19

    The 2nd Amendment will not protect you from the government.

    1. https://mobile.twitter.com/DanRather/status/1397530575045492747

      The reality is we have a sharp partisan divide in this country. And that divide is largely over reality.

      Of course Dan “fake but accurate” Rather thinks it’s his political enemies that don’t live in reality.

  16. The shooter had been detained by US Customs in 2016 while returning from the Philippines because of writings he was carrying about terrorism and his hatred of his work place. Nope, no red flags there!

    https://www.newsbreakapp.com/n/0aE0LrtE?pd=05vSRvT0&lang=en_US&s=i0

    1. The Las Vegas shooter Paddock also had a connection to Philippines.

      Maybe people associated with countries hosting Islamic terrorist groups should be scrutinized a little more closely.

  17. The 2nd Amendment is strongly tethered to the 1st Amendment and 4th Amendment – which most Democrats and Progressives support.

    All constitutional amendments can be regulated but be careful when tampering with the Constitution. There will be unintended blowback.

    The issue is not the weapon, the issue is why does one choose violence as a solution? Banning guns won’t change violent prone people – they will switch to other weapons (knives, cars, etc). Banning guns will very quickly ban some content in movies, music and video games. Democrats and Progressives have historically been opposed to this type of nanny-state censorship.

  18. Why can not police simply get GVROs on all suspected gang members?

  19. You will notice that there is zero research on how many people are murdered after their guns are confiscated by red flag orders.

  20. Sorry but just because the law didn’t stop this shooting doesn’t invalidate it. As long as a court is involved I’m fine with this.

  21. Too bad none of the people killed were carrying. Or anyone nearby.

    “Oh look, he’s got a gun and he’s gonna shoot us. Someone needs to get a phone, call the cops and wait for them to get here.” “Hold on, Mr. Shooter. We don’t have any guns to protect ourselves. Can you please wait a while before you get started?”

    There will always be guns. Governments need them for their own purposes and will make sure they always have plenty of them. And bad people will always be able to get hold of them.

  22. By the EXACT SAME logic, ANY laws shielding gun and ammo manufacturers and-or sellers (Remington for example) need to be held accountable for the shootings of crazy users of their products! Remington, exercise better editorial control of your bullets!

    Hey conservaTurd assholes-commenters who oppose Section 230! Ye moochers off of a “liability shielding gift from the U.S. to ‘Big Guns and Ammo Tech’”…

    You ready to pay $90,000 per gun and $15 per ammo-round, or pay out the ass for insurance, for your guns? No? Then you are hypocrites ass usual! ,
    https://wapexclusive.com

  23. Red flag laws are useless for crazy people and criminals. Period.

  24. ABC7News.com (San Francisco)
    By Dan Noyes
    Thursday, May 27, 2021 2:59AM

    “….He says this should not be a story about gun control, but about how VTA treats its employees, and how employees treat each other.

    Bertolet told Dan Noyes, “We sometimes are brutal to one another, I know certain shops just have a certain culture about them, it’s a union trade deal and it’s just union hardcore blue collar workers and that’s how things go.”

    He believes that Cassidy snapped because of the treatment on the job. Bertolet is an Air Force veteran, and tells me VTA is a gun-free zone. He wishes he was carrying a weapon, so he could have perhaps stopped Cassidy…”

  25. Gun laws are like taking cars away from sober people to stop drunk driving..thank you Michael Malice for that one..

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