Laws designed to seize guns from those in mental health crises before they cause harm
By Michael Tarm
AP Legal Affairs Writer
CHICAGO (AP) — Police in Florida took a 15-year-old into custody six years ago for threatening to take his own life, though he was soon released following an involuntary mental health examination, according to official records.
This past weekend, that same person entered a Jacksonville Dollar General as a 21-year-old, wielding a rifle emblazoned with a swastika, and fatally shot three Black people in a racist attack. The gunman, who was white, then killed himself.
Saturday’s shooting raises questions about whether so-called red flag laws in Florida and other states are used effectively. They are designed to seize guns from those in mental health crises, or who threaten violence, before they harm someone.
Red flag laws are relatively new. Connecticut became the first state to adopt one in 1999 after a mass shooting at a state lottery office. Now, over a third of U.S. states have them, including Florida, though their provisions vary.
The proliferation of mass shootings nationwide has previously stoked debate about the effectiveness of red flag laws. Advocates see them as useful tools to thwart acts of violence. Others say their usefulness is exaggerated.
Here’s a look at Florida’s red flag law:
When was it adopted?
Florida passed wide-ranging gun-control legislation in 2018, the Marjory Stoneman Douglas High School Public Safety Act, that included the red flag law.
Lawmakers were spurred to action in part by a shooting at the school in Parkland after which the act is named. Law enforcement had received complaints about threats by the 19-year-old former student before he killed 17 people at the school on Feb. 14, 2018.
Among other things, the legislation also raised the minimum age to buy guns to 21.
Under the red flag provisions, law enforcement can ask a civil court to issue a risk prevention order that bars someone deemed dangerous to themselves or others from possessing guns. They also can’t buy guns while the order is in effect.
The process is a civil matter. Someone doesn’t need to be suspected of a crime for an order to be sought. A request can be prompted by a mental health crisis, or a display or threat of violence.
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Did the law apply to the Jacksonville shooter?
The Jacksonville gunman, Ryan Palmeter, had made racist writings discovered by his father after the shooting started. But it isn’t clear whether he earlier made the kind of open threats of violence or engaged in witnessed behaviors that should have led to action under the state’s red flag law.
In the weekend shooting, Palmeter used an AR-15-style semi-automatic rifle and a Glock handgun he bought legally this year, despite his involuntary commitment in 2017, Jacksonville Sheriff T.K. Waters has said.
Under Florida law, a person can be detained up to 72 hours for an involuntary mental health examination. If a person is released following the examination, rather than held for treatment, the commitment does not show up on a background check.
And when Palmeter was taken into custody for threatening his own life, that came before the 2018 legislation.
Asked in an interview Monday if he thought the shooting in his city pointed to some failure of state laws, Waters said “the system did not fail, from what we can see.”
“There are so many people across this country that own guns and own guns legally and have never done anything with them,” he added. “I think it’s strange to vilify an object that doesn’t live, it doesn’t breathe.”
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How is Florida’s law different?
In Florida, a request for an order can be initiated and filed only by a law enforcement officer or a representative of a law enforcement agency. Some other states allow others to submit requests.
New York’s 2019 red flag law was the first to give teachers and school administrators the ability “to prevent school shootings by pursuing court intervention,” a state website says. Family members, prosecutors and police in New York can also ask courts to intervene.
In Illinois, a roommate, in addition to parents and law enforcement officers, can make the request. In some states, doctors and workplace colleagues can.
While only law enforcement can file the petition in Florida, anyone can reach out to a law enforcement agency and ask it to look into a case and potentially file a petition based on what they find.
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What else does Florida’s law say?
It requires that petitions for a court order include specific actions or threatening statements made by the subject of the request.
The Florida petition form, posted on court websites, says there must be proof that a person “poses a significant danger of harming himself or herself or others by possessing a firearm or ammunition.”
Once a petition is filed, a hearing must be held within 14 days for a judge to go through supporting evidence. If the danger seems imminent, the court can issue a temporary order while the full hearing is pending.
Proof must be “clear and convincing” — a high evidentiary bar — that someone is a risk before an order can be entered.
Orders can be issued for up to a year. After that, the order can be extended for another year, though courts must hold another hearing to do so. Targets of an order must surrender all guns and ammunition, as well as any concealed gun permit.
After an order is issued, the person it applies to can request to have it vacated. With an order in place, the burden is on the subject of an order to present “clear and convincing” evidence that they are no longer a risk to anyone.
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What are the criticisms of such laws?
Some worry red flag laws can lead to those with grudges against a gun owner to make false accusations to police about threats or mental issues. Proponents of red flag laws say existing laws against submitting false reports should help prevent that.
Others have challenged the constitutionality of red flag laws, saying they allow for the seizure of property — in this case, guns — even when no crime has been committed and through a truncated process that doesn’t give subjects a fair chance to dispute the claims.
Among the safeguards against due process violations, courts have held, is the high standard of proof required in most states before an order can issued.
