Extreme Risk Laws Save Lives

September 10, 2019

When a person is in crisis and considering harming themselves or others, family members and law enforcement are often the first people to see the warning signs. Extreme Risk laws, sometimes referred to as “Red Flag” laws, empower loved ones or law enforcement to intervene in order to temporarily prevent someone in crisis from accessing firearms. These laws can help de-escalate emergency situations and are a proven way to intervene before gun violence such as a firearm suicide or mass shooting takes more American lives. States around the country are increasingly turning to Extreme Risk laws as a common-sense way to help reduce gun violence.

 

INTRODUCTION

In many instances of gun violence, there were clear warning signs that the shooter posed a serious threat before the shooting. Extreme Risk laws give key members of the community a way to intervene before warning signs escalate into tragedies. These laws permit immediate family members and law enforcement to petition a court for an order, often known as an extreme risk protection order (ERPO),These orders are sometimes also known as gun violence restraining orders (GVROs). to temporarily remove guns from dangerous situations. Following due process in court, if it is found that a person poses a serious risk of injuring themselves or others with a firearm, that person is temporarily prohibited from purchasing and possessing guns; guns they already own are held by law enforcement or another authorized party while the order is in effect.

Seventeen states and DC have enacted Extreme Risk laws.Cal. Penal Code § 18100, et. seq.; CRS § 13-14.5-101, et seq.; Conn. Gen. Stat. § 29-38c; 10 Del. C. § 7701, et seq.; DC Code § 7-2510.01, et seq.; Fla. Stat. § 790.401; Hawaii Senate Bill 1466 (2019); 430 ILCS § 67/1, et seq.; Ind. Code § 35-47-14-1, et. seq.; Md. Public Safety Code § 5-601, et seq.; Mass. Gen. Laws ch. 140, §§ 121, 129B(C), 131(C), 131R-Z; Nevada Assembly Bill 291 (2019); NY CLS CPLR § 6340, et seq.; N.J. Stat. § 2C:58-20, et seq.; ORS § 166.525, et seq.; RI Gen. Laws 8-8.3-1, et seq.; 13 VSA 4051, et seq.; ARCW § 7.94.010, et seq.
California, Colorado, Connecticut, Delaware, DC, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.

Under current federal law, a person is barred from having guns only if they fall into one of several categories of prohibited persons–such as those who have been convicted of certain crimes, adjudicated as mentally ill or involuntarily committed to a psychiatric hospital, or who are subject to a final domestic violence restraining order.18 U.S.C. § 922(d), (g). A person who displays warning signs that they’re considering suicide or engaging in a violent act, but who is not prohibited under current law, would still be legally able to buy and possess guns. Extreme Risk laws help to fill this gap, protecting public safety and allowing people in crisis the chance to obtain the help they need.

Following the school shooting in Parkland, lawmakers across the country have sought to close this gap in their states. Since the beginning of 2018, 12 states and Washington DC have passed Extreme Risk laws, bringing the total number of states with these laws to 17. Despite these laws being relatively new, a thorough Everytown analysis of Extreme Risk orders found that at least 3,900 order petitions were filed between January 2018 and August 2019.Analysis includes all available data from the ten states and Washington DC with Extreme Risk laws in effect as of January 2019 (California, Connecticut, Delaware, Florida, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, Washington, and the Washington DC). Data was collected from state agencies through public records requests. When public records were not available, data was obtained from advocacy organizations, researchers, and/or media sources. No data from Indiana and Illinois was available at the time of collection and data from California was unavailable for 2019. Where possible, the analysis includes only temporary and emergency orders and excludes final orders. These laws are being used all across the states where they are present; extreme risk protection order petitions have been filed in nearly three-quarters of all counties.Analysis includes all years of data from the seven states (California, Florida, Maryland, Oregon, Rhode Island, Vermont, and Washington) where county-level reporting was available. Further, data collected from the states with more than two full years of reporting (California, Connecticut, and Washington), shows that the uptake is increasing over time; in California, for example, the number of order petitions increased by over 330 percent between 2016 and 2018.Analysis includes data from the three states (California, Connecticut, and Washington) where more than two full years of data was available. In California, where full years of data were available in 2016, 2017, and 2018, the number of order petitions filed increased from 76 in 2016 to 331 in 2018.

Extreme Risk Order Petitions Filed By State and Year

Click here for citations: Due to the date of publication, the table represents approximately half a year of data in 2019: January through June or July, depending on the state’s reporting schedule. Data is not available for the first year because the law went into effect in December 2018. Data is not available for the first year because the law went into effect in December of 2016. Data is limited to Superior Court filings and does not include orders reported in lower courts at this time.

 

KEY FINDINGS

Evidence shows that temporarily removing guns from people in crisis can reduce the risk of firearm suicide.

Firearm suicide is a significant public health crisis in the US.For more information on firearm suicide, see: everytownresearch.org/disrupting-access. Every year, over 22,000 Americans die by firearm suicide, including over 1,000 children and teens.Centers for Disease Control and Prevention. National Center for Injury Prevention and Control, Web-based Injury Statistics Query and Reporting System (WISQARS) Fatal Injury Reports. A yearly average was developed using five years of most recent available data: 2013 to 2017. Children and teens are defined as ages 0 to 19. Nearly two-thirds of all gun deaths in the US are suicides, an average of 61 deaths a day.Ibid. Firearm suicide to total suicide ratio and daily average developed using five years of most recent available data: 2013 to 2017.

A review and analysis of 14 scientific studies revealed that having access to a firearm triples one’s risk of death by suicide. This elevated risk applies not only to the gun owner but also to everyone in the household.Anglemyer A, Horvath T, Rutherford G. The accessibility of firearms and risk for suicide and homicide victimization among household members: a systematic review and meta-analysis. Annals of Internal Medicine. 2014; 160: 101–110.

Among commonly used methods of self-harm, firearms are by far the most lethal, with a fatality rate of approximately 85 percent.Miller M, Azrael D, Barber C. Suicide mortality in the United States: the importance of attending to method in understanding population-level disparities in the burden of suicide. Annual Review of Public Health. 2012; 33: 393-408. Conversely, less than 5 percent of people who attempt suicide using other methods die,Miller M, Azrael D, Barber C. Suicide mortality in the United States: the importance of attending to method in understanding population-level disparities in the burden of suicide. Annual Review of Public Health. 2012; 33: 393-408. and the vast majority of all those who survive do not go on to die by suicide.Owens D, Horrocks J, House A. Fatal and non-fatal repetition of self-harm: systematic review. British Journal of Psychiatry. 2002; 181: 193-199.
 

 
Following Connecticut’s increased enforcement of its Extreme Risk law,Conn. Gen. Stat. § 29-38c. one study found the law to be associated with a 14 percent reduction in the state’s firearm suicide rate.Kivisto AJ, Phalen PL. Effects of risk-based firearm seizure laws in Connecticut and Indiana on suicide rates, 1981-2015. Psychiatric Services. 2018; 69(8): 855-862. While it is always hard to measure events that “didn’t happen,” an important study in Connecticut found that one suicide was averted for approximately every 11 gun removals carried out under the law.Swanson JW, Norko M, Lin H, et al. Implementation and effectiveness of Connecticut’s risk-based gun removal law: does it prevent suicides? Law and Contemporary Problems. 2017; 80: 179-208.

In Indiana, in the 10 years after the state passed its Extreme Risk law in 2005,Ind. Code § 35-47-14-1, et seq. the state’s firearm suicide rate decreased by 7.5 percent.Kivisto AJ, Phalen PL. Effects of risk-based firearm seizure laws in Connecticut and Indiana on suicide rates, 1981-2015. Psychiatric Services. 2018; 69(8): 855-862. Like Connecticut, another study estimated that Indiana’s Extreme Risk law averted one suicide for approximately every 10 gun removals.Swanson JW, Easter MM, Alanis Hirsch K, et al. Criminal justice and suicide outcomes with Indiana’s risk-based gun seizure law. Journal of the American Academy of Psychiatry and the Law. 2019 Apr 15. pii: JAAPL.003835-19.

Perpetrators of mass shootings and school shootings often display warning signs before committing violent acts.

An Everytown original analysis of mass shootings from 2009 to 2017 revealed that in 51 percent of incidents the shooter exhibited warning signs that they posed a risk to themselves or others before the shooting.Everytown for Gun Safety. Mass shootings in the United States: 2009-2017. https://every.tw/1XVAmcc. December 2018.  These warning signs are even more apparent among perpetrators of school violence.Everytown for Gun Safety. Keeping our schools safe: a plan to stop mass shootings and end gun violence in American schools. everytownresearch.org/reports/keeping-schools-safe. February 2019. The United States Secret Service and the United States Department of Education studied targeted school violence incidents and found behavioral warning signs that caused others to be concerned in 93 percent of cases. They also found that in 81 percent of incidents, other people, most often the shooter’s peers, had some type of knowledge about the shooter’s plans.United States Secret Service and United States Department of Education. Prior Knowledge of Potential School-based Violence: Information Students Learn May Prevent a Targeted Attack. https://bit.ly/2MPrOoL. May 2008.

In 51% of mass shootings, the shooter exhibited dangerous warning signs before the shooting.

For example, students and teachers reported that the mass shooter in the February 2018 Parkland, FL, tragedy displayed threatening behavior. His mother had contacted law enforcement on multiple occasions regarding his behavior, and he was known to possess firearms.Marjory Stoneman Douglas High School Public Safety Commission. Initial Report Submitted to the Governor, Speaker of the House of Representatives and Senate President. http://www.fdle.state.fl.us/MSDHS/CommissionReport.pdf. January 2, 2019. In response to that tragedy, Florida passed its own Extreme Risk law.Fla. Stat. § 790.401.

Likewise, the shooter in the May 2014 Isla Vista, CA, shooting displayed numerous warning signs, including homicidal and suicidal threats. His parents had alerted law enforcement, but he did not meet the criteria for emergency mental health commitment.Pickert K. Mental-health lessons emerge from Isla Vista slayings. Time. May 27, 2014. https://goo.gl/UL5jLX. As a result, he kept his guns, which he used in the killing spree three weeks later. In response to that tragic shooting, California passed its own Extreme Risk law.Cal. Penal Code § 18125; Cal. Penal Code § 18150; Cal. Penal Code § 18175.

Interventions in states with Extreme Risk laws have already prevented these potential tragedies.

A new study in California details 21 cases in which a Gun Violence Restraining Order, California’s name for an Extreme Risk order, was used in efforts to prevent mass shootings. This includes the case of a car-dealership employee who threatened to shoot his supervisor and other employees if he was fired.Wintemute GJ, Pear VA, Schleimer JP, et al. Extreme risk protection orders intended to prevent mass shootings. Annals of Internal Medicine. 2019. A manager at the dealership informed the police and a GVRO was obtained the following day.Wintemute GJ, Pear VA, Schleimer JP, et al. Extreme risk protection orders intended to prevent mass shootings. Annals of Internal Medicine. 2019. Five firearms were recovered through the order.Wintemute GJ, Pear VA, Schleimer JP, et al. Extreme risk protection orders intended to prevent mass shootings. Annals of Internal Medicine. 2019.

In Maryland, a 2018 Extreme Risk law has been invoked in at least four cases involving “significant threats” against schools, according to the leaders of the Maryland Sheriffs’ Association.Broadwater L. Sheriff: Maryland's 'red flag' law prompted gun seizures after four 'significant threats' against schools. The Baltimore Sun. January 15, 2019. https://bit.ly/2Gdf6Qi.

In Florida, an Extreme Risk law passed in 2018 has been invoked in multiple cases of potential school violence, including in the case of a student who was accused of stalking an ex-girlfriend and threatening to kill himself,Kennedy E. Tate student's AR-15, father's 54 guns removed under new red flag law. Pensacola News Journal. July 9, 2018. https://bit.ly/2UHmaba. and in another in which a potential school shooter said killing people would be “addicting.”Lipscomb J. Florida's post-Parkland "Red Flag" law has taken guns from dozens of dangerous people. Miami New Times. August 7, 2018. https://bit.ly/2ORW56U.

In Seattle, a coalition of city and county officialsThe coalition included the Seattle City Attorney’s Office, Seattle Police Department, King County Prosecuting Attorney's Office, and King County Sheriff’s Office. launched a regional firearms enforcement unit that supports, tracks, and enforces all firearm surrender orders issued within the county. In the unit’s first year, it recovered 200 firearms as a result of 48 ERPOs. According to the City Attorney’s Office, the use of ERPOs has been effective in temporarily preventing access to firearms by students who threatened violence against themselves, the school, and other students.12-month period from January 2018 to December 2018. Acquired via correspondence with Christopher Anderson, director of the Domestic Violence Unit of the Seattle City Attorney’s Office.

Extreme Risk laws have robust due-process protections.
Extreme Risk laws are designed to defuse dangerous situations while also providing due process and a system of checks and balances. In each state with an Extreme Risk law, only limited groups of people may request an ERPO; for example, states typically limit petitioners to law enforcement officers and family or household members. These limitations mean that only people who are very close to the person at risk of harming themselves or others, or who are trained to identify and respond to such risks, can bring these cases. Many of these laws also include other strong provisions that deter people from misusing the ERPO process.

Law enforcement agencies may also complete internal review processes before filing an application. In Florida, for example, the Broward County Sheriff’s Office has instituted a review process for all petitions so that when a Broward County sheriff’s deputy identifies a case as requiring an ERPO, it must be approved by their superiors and then reviewed by attorneys before the case can be filed in court.Sherman A. How Florida’s red flag gun law works. Politifact Florida. September 3, 2019. https://bit.ly/2lyXGo6.

The final ERPO, generally lasting up to one year, can be issued only following a hearing of which the person is given notice and during which they have an opportunity to be heard and respond to evidence. When an ERPO case is filed in court, the petitioner requesting the ERPO must present evidence to a judge demonstrating that the person poses a significant danger of harming themselves or others with a firearm. That person then has the opportunity to respond to any evidence presented, and present their own evidence. Many states’ laws include penalties for presenting false evidence. State laws typically specify the types of evidence that a judge is permitted to consider in an ERPO case, such as recent acts and threats of violence or recent unlawful or reckless use of a firearm.

In a crisis situation where there is clear evidence that someone poses an immediate risk, a judge can issue an emergency ERPO that immediately suspends firearms access until a full hearing can be held, usually within 7 to 21 days. The United States Supreme Court has recognized, in multiple contexts, that this process—a pre-hearing deprivation followed by a full hearing within a reasonable time frame—satisfies the due process of law required by our Constitution. Following the framework established by the Supreme Court, multiple federal and state courts have issued rulings that strongly suggest they would uphold Extreme Risk law if challenged in court on due process grounds.

A case in Washington illustrates the due process provided under these laws. Law enforcement filed a petition for an ERPO after a man who recently fired a gun in a public place called 911, threatened to “start shooting,” then attempted to draw a gun when police arrived. Before filing the request for an ERPO, the law enforcement officers interviewed the man’s family members and people who witnessed the incidents. The court granted an emergency ERPO and the man was able to attend a court hearing 14 days later, where he was represented by an attorney and agreed to extend the ERPO for two months pending further evaluation of his case.Everytown for Gun Safety obtained the case file for this incident directly from the court.

 
An overwhelming majority of Americans favor Extreme Risk laws.
In a recent survey of 2,500 likely voters, 85 percent of respondents favored Congress passing an Extreme Risk law, as well as 78 percent of gun owners.Global Strategy Group. Voters call for background checks, strong Red Flag bill, conducted on behalf of Everytown for Gun Safety. September 6, 2019. https://every.tw/2lM0L48.

CONCLUSION

The emerging body of research shows that Extreme Risk laws work to prevent firearm suicide, and they can also help prevent would-be mass shooters from committing violence. An overwhelming majority of Americans on both sides of the aisle support Extreme Risk laws. In a recent survey, 85 percent of likely voters favored Congress passing an Extreme Risk law (see graphic).
 
If you or someone you know is in crisis, please contact the National Suicide Prevention Lifeline, a national network of local crisis centers that provides free and confidential emotional support to people in suicidal crisis or emotional distress 24/7. 1-800-273-TALK (8255) suicidepreventionlifeline.org

You may also contact the Crisis Text Line, which provides trained crisis counseling services over text 24/7. Text HOME to 741741 for free from anywhere in the US crisistextline.org

 

APPENDIX: EXTREME RISK STORIES

Click here to download the appendix of stories that illustrate the importance of Extreme Risk legislation in removing firearms from dangerous situations.

APPENDIX: EXTREME RISK LAWS BY STATE

Click here to download an appendix of the various permutations of Extreme Risk laws and procedures by state.