TURES COLUMN: The statistics behind making a red flag law that saves lives

Published 9:30 am Thursday, July 14, 2022

Recent research of mine showed how thousands of lives could be saved if all states had red flag laws, as opposed to a situation where no state had a red flag law. National legislation then passed Congress providing funds to help states create or improve their red flag laws. In this article, I compare firearm death rates from the 19 states which have such red flag laws to see how to make such laws better.

Police Should Be Part of the Process: The Highland Park Police and Illinois State Police have come under criticism in the wake of the Fourth of July Parade shooting. But it wasn’t about law enforcement making a bad call. In states like Illinois, laws themselves are written making the job of the police harder to seize weapons from those who threaten themselves or others.

The Chicago Tribune documented how the police were called out twice, but in both cases, they were limited by law as to what they could do. “It takes a felony conviction or committal to a mental facility to bar someone from having a firearm in the state, experts said.”

My research shows that the average firearm death rates from the CDC website for states where only law enforcement or state officials to petition for an Extreme Risk Protection Order (ERPO), according to the Giffords Center is 12.83 per 100,000 residents. When others can petition, the firearm death rate average drops to 10.35 per 100,000 persons in the state.

Go Beyond Just Family: Sometimes it’s hard for family members to call for a red flag on one of their own. Either the family is unable to believe one of their members is a threat, or may feel too intimidated call for an ERPO. Some will buy their child a weapon for a birthday no matter what he or she has done. And red flag laws need to reflect that.

I also compared the states that allow individuals other than just family to petition for an ERPO, from employers, coworkers, and some school personnel to mental health professionals. These states averaged only 7.34 firearm deaths per 100,000 residents, significantly less than the 12.66 deaths per 100,000 residents who only allow family to petition for a red flag.

The Standard of Proof Matters: ERPOs are generally a civil court matter. Even then, some red flag states make it hard to seize guns, requiring “clear and convincing evidence.” Others have a lower threshold for action, requiring only a “preponderance of the evidence” standard, consistent with many standard civil cases (data comes from the Giffords Center as well.

Those states with the preponderance of evidence standard for an ERPO had only 9.14 firearm deaths for 100,000 residents in 2020, less than the 11.62 firearm deaths for 100,000 residents in states demanding “clear and convincing evidence” to take a gun.

When you take New Mexico out of the equation (they only adopted their law halfway through 2020), you see states requiring preponderance of the evidence have a firearm death rate of only 5.75, less than half of those of the clear and convincing evidence cases, a significantly lower rate.

Length of Final Orders Could Play a Role: Many people are surprised to learn that ERPOs only last about a year. Some states (Illinois, Vermont, Virginia) have their red flags only last six months.

New Jersey and Connecticut have versions last longer until respondent asks for a review and can show they are no longer a danger to themselves or others. 

California’s can last from one to five years. All can renew their red flags, using the same standard of proof as at the initial court hearing.

Red Flag laws are a good idea; for watered-down versions, not so much.