Red Flag Laws

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law and Procedure Practice Group, was recorded on Thursday, September 12, 2019, during a live teleforum conference call held exclusively for Federalist Society members.  

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "Red Flag Laws." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Mr. John Malcolm, who is Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at the Heritage Foundation. John will be introducing our panel today as our moderator. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. John, the floor is yours.

 

John Malcolm:  Thank you, Micah, and thank you all for calling in.

 

      So in light of several recent public mass shootings, which are still, fortunately, very rare events, there have been, as there always is, calls for new gun control restrictions. These proposals run the gamut from a renewal of the federal assault weapons ban to universal background checks to limitations on the capacity of magazines and expansion of the list of crimes that would render someone ineligible to purchase or possess a firearm, etc. etc. One of the proposals has been the expansion of extreme risk protection orders, more commonly known as red flag laws. A number of states have already adopted red flag laws, but they vary significantly.

 

      But what exactly are red flag laws, and what role, if any, should they play in terms of addressing gun violence? Are there good red flag laws and bad red flag laws? And if so, what's the difference? We have two outstanding speakers today to address these issues.

 

      So first, we will hear from my colleague Amy Swearer. Amy got her undergraduate and law degrees from the University of Nebraska. She is a corn-husker to the core. Amy is a Senior Legal Policy Analyst here in the Meese Center at Heritage, and one of her areas of focus is the Second Amendment. She was involved in Heritage's School Safety Initiative and recently co-authored a series of Heritage legal memoranda on the role of untreated serious mental illness in gun violence. And in the interest of full disclosure, I was her co-author. Just last month, Amy testified before the Virginia State Crime Commission during its special session on gun violence, and she has a forthcoming article in the Southern Illinois University Law Review entitled, "Let Us Reason Together, A More Effective and Less Partisan Approach to Gun Related Violence."

 

      Then, we will hear from Dr. John Lott, who I'm sure is well-known to most of the people who are on this call. John holds a PhD in economics from UCLA and has held research or teaching positions at several universities including Yale, Wharton, University of Chicago, Stanford, and Rice. John is the Founder and President of the Crime Prevention Research Center, which is a research and education organization dedicated to conducting academic research on the relationship between laws regulating the ownership or use of guns, crime, and public safety. John has published well over 100 articles and 9 books including, "More Guns, Less Crime," "The Bias Against Guns," and "The War on Guns."

 

      And with that, Amy, let me turn it over to you.

 

Amy Swearer:  Thank you, John. Thank you, Dr. Lott. Thank you to The Federalist Society, and also, thank you to all of you who have joined us this afternoon.

 

      So I suspect that at the end of the day, Dr. Lott and I will actually agree on very core concepts about red flag laws. I know we certainly agree on core concepts regarding other types of gun control and regarding the Second Amendment, generally, but I also suspect that many of the criticism that he will bring up is problematic about some of the ways states have implemented these red flag laws, I have little doubt that I will also agree are very problematic. So to me, the question today is not whether any one particular set of red flag laws is perfect, because I don't believe that that perfect red flag law exists.

 

      The question, rather, is whether this basic concept that these laws are trying to encompass of identifying specific individuals who are becoming extreme and objective risks of danger to themselves or others and then intervening in a temporary manner to disarm them before they can commit violent acts or reach a full blown mental health crisis. So the question is whether that concept is one that can and should exist within a framework that also respects due process and that doesn’t turn us into a Minority Report society where we're making best guesses about who may or may not commit crimes in the future.

 

      So then what are we actually talking about when we say this concept of red flag laws? What is it that I'm defending as an idea? So when I use that phrase, it is referring again to this general concept of better identifying individuals who are becoming extreme and objective risks of violence, either to themselves or to others, but who have not yet either committed a grievous criminal act or hit a full-blown mental health crisis such that they have some sort of disqualifying history under federal or state law and then intervening in a very specific and temporary way. The ultimate goal of these laws should be getting them back to a place where they are no longer extreme and objective risks of violence and can have those firearms and the full array of rights restored to them.

 

And to a certain extent, I don't care what you want to call this idea. I don't care if you think there are alternative ways of intervening with a subset of objectively dangerous individuals, and I think that conversation about alternative ways of capturing the same idea is a very valid and useful conversation to have. But the reality is that we do have a problem that we are seeing time and time again with mass public shooters in particular.

 

      So we know that roughly two-thirds of all mass public shooters had long histories of psychiatric problems where they either had a diagnosed mental illness and were not receiving treatment or more often they were showing repeated signs of dangerousness because they were just in a mentally unstable place. But unfortunately, almost all of these individuals were still able to go on and legally purchase and possess firearms. Because despite these warning signs, that to some extents were very, very grievous warning signs, they did not yet have a disqualifying criminal or mental health history. And as now in some cases, arguably, they could have and should have picked up disqualifying histories under existing laws. And I agree that in part of the process of capturing and identifying these individuals should be at looking at whether we are effectively utilizing those existing laws.

 

The other thing we've seen is cases where despite repeated pleas by witnesses who were seeing these declines into dangerousness, for whatever reason, no official action was taken by law enforcement or prosecutors or mental health officials. And I think, again, the most egregious example of this is Parkland, where you saw an individual who was repeatedly probably could've been charged with disqualifying criminal offenses or under Florida's Baker Act been prohibited from possessing firearms but, ultimately, wasn't.

 

So to me the reality of how red flag laws can fill gaps in existing laws is personified in the case of Jack Sawyer, who frankly is the reason Vermont has a red flag law. And now, I have problems with Vermont's version of this legislation to be sure, but I think it's useful to look at why, as a general concept, this law ended up having support in Vermont.

 

So in 2018, an 18-year old Jack Sawyer was arrested in Vermont, and he was accused of planning to commit a Parkland-style school shooting at his local high school. His diary had a detailed plan for that shooting including which guns he needed, who he intended to target first, and how and when he intended to carry it out. He had purchased a shot gun. He had texted friends about his plans, and so he was arrested and charged with a bunch of attempted felonies. Unfortunately, a Connecticut court determined that none of this planning legally constituted attempted crimes, and all of his felony charges were dropped. He was left facing two misdemeanors, meaning that he would ultimately get his firearms back. So this, again, is a person who is objectively dangerous, he hasn't yet committed a crime, and while he certainly had some emotional problems, it was unlikely under Vermont law that he would have had a diagnoseable mental illness that would have qualified him for an involuntary civil commitment.

 

So these are the types of scenarios that I think red flag laws can play a role in capturing this segment of the population. But again, I don't want to use the term loophole because I don't see it as a loophole in existing laws, but a lot of times, existing laws are not meant to capture this segment of the population. So I say, just as a final point before turning it over to Dr. Lott, is again, it's important to keep in mind that every state that has implemented these, and right now it's 17 states plus the District of Colombia, has had very, very different types of red flag laws in place. And so what I think the majority of states have tried to do is to open up this process to non-state actors—so to friends, family members, co-workers, teachers, etc.—and to allow them to either petition law enforcement or to petition courts directly to say look, we are seeing signs that this person is dangerous. Please do something. Intervene in a way to ensure that they are temporarily disarmed.

 

And in other states, I think a handful have also just essentially given it to law enforcement to make an emergency decision, almost like a firearms enforcement version of a 72-hour mental health hold, where law enforcement can immediately take action and then there needs to be follow-up on the back end. And I agree that there are, again, significant questions about due process. I suspect that we will get into those practical guidelines for due process as we go along. But I think it's important to just lay out where we are with red flag laws and what we are talking about as a concept and what it is we should be defending as a concept as opposed to how I think red flag laws are sometimes interpreted.

 

So with that, I will turn it over to John or to Dr. Lott.

 

Dr. John Lott:  Well, thanks very much. I appreciate Amy's comments.

 

      I guess what I want to start by doing is giving people some perspective that they're already laws on the books that deal with these types of mental health issues. We have Baker Acts, so-called Baker Acts that go by different names in different states, and we have the federal version with 302s that have been around since the beginning of the 1970s. They allow police, doctors, family members to go and have someone held for a 72-hour mental health examination. And it's based on simply a reasonableness test, little more than a guess or a hunch that the person has some mental health issues. Family members can go to police. They can detain the person. Either a judge, law enforcement, doctors, or mental healthcare professionals are allowed to go and initiate the process. And the focus here is on mental illness. Mental healthcare experts are involved in the process of evaluating the person. If a person can't afford a lawyer, a public defender is provided. One of the ironies is is that Democrats have been critical in the past of Baker Acts because they've argued that it hasn't simply provided enough protections for individual rights.

 

I guess a general question is if you're going to deal with these issues, why not go and amend the existing laws that we have in these states or the federal rules on this rather than going and instituting entirely new rules? And I think -- I have a thought on why that's the case, because I think it's a lot more difficult to go and remove the protections that are already in these Baker Acts in terms of providing public defenders for people, in terms of the amount of judicial -- or the person's ability to confront a judge or be in front of a judge when different decisions are made. When it comes to taking away somebody's guns directly, a lot of people aren't as concerned about those types of protections. There's other things that people could do if you wanted to change in terms of funding.

 

One thing, just to mention, Amy brought up the fact that mass public shooters, a large number of them, about half, were actually seeing mental healthcare professionals prior to their attacks. About half over that last twenty years, we're seeing them within six months of their attack. Interesting thing is, and it should give people caution on these types of laws that are being put forward, is that in not one single case did those mental healthcare professionals identify these individuals as a danger to themselves or to others. In fact, there's a large academic literature on the inability of mental healthcare professionals to go and identify individuals who are likely to go and do these types of attacks.

 

So much of this discussion that we have is Monday morning quarterbacking where people read insignificance to different comments or to statements that people just didn't -- even mental healthcare professionals didn't view as really warranting the concern that they read into those types of statements afterwards. And one can go and read through the academic literature and they describe in lots of ways the reasons for this. For example, over the last 20 years, there's been 77 mass public shooters, or at least since 1998. That may seem like a lot in some sense but on a yearly rate, you're talking about a fairly small number, less than 4 on average. And if you take something like schizophrenia, for example, there's about 2.5 million people with schizophrenia in the United States, and one may be arguably two of the people who engage in mass public shootings over that time period could be classified as having some degree of schizophrenia.

 

Obviously, there's other types of mental illness that one could go and talk about but the issue that you have is that you have such a tiny, tiny fraction of the mental healthcare experts say that it's difficult for them to go and identify these individuals beforehand. And the other thing that they point to is that the people who engage in these attacks tend to be relatively smart, and they know what to say and what not to say to other people. So you may have something extreme like the Parkland shooting with the Nikolas Cruz case, but that's an extremely unusual case in terms of the amount of so-called red flags that one had to begin with there.

 

Now on the specific notion of these red flags, these extreme risk protection orders, despite everybody talking about red flags in the context of mental illness, and President Trump has raised that multiple times, if you actually read through these state laws, only one of the state laws even mentions the term mental illness in it. There's no requirement that mental healthcare experts be involved in the process. A judge basically initially just gets a written complaint from somebody. They issue a warrant based on that written complaint. There's no examination, cross-examination, or discussion directly with the person that's there, and then the gun is taken away two weeks, three weeks, four weeks, depending upon the state law. At that point, there'll be a hearing and you'll have guns taken away.

 

Now, just to back up one second, with the Baker Acts and existing law, there are already laws that allow people to go and take guns away from individuals that may be deemed dangerous. Even part of the Baker Act, you can go anything from involuntary commitment to a requirement that the person would go and turn in their guns. But it's strange that there's no requirement in these red flag laws that people be provided with legal counsel. So for example, maybe talking about $10 thousand legal costs. If it's merely taking away somebody's gun, a lot of people, it appears, and a lot of these individuals appear to be in financial difficulties when they're being brought in in these cases, seems unlikely that the vast majority of these people are thinking it's worthwhile to themselves to go and spend that type of money just so they can go and keep access to a gun. The thing is these red flags laws go beyond mental illness, though a lot of them are used for concerns about people committing suicide. They deal with crime, our expectations that somebody is going to commit a crime.

 

Just make one more comment with regard to mental illness and suicides. The thing is if you really believe, Amy used the terms extreme and objectively dangerous to themselves or others, if you believe that, simply taking away somebody's gun doesn't really seem to me -- their legally owned gun -- really doesn't seem to me to be a serious response to that. One can merely ask Jeffrey Epstein whether it's possible to go and use other methods to go and commit suicide that's there. And it raises another issue about why we go and are focusing on just the gun in this case.

 

So you have this other issue about crime, and I served as observer on the State Uniform Law Commission that was briefly talking about putting together a model red flag law. You would go and talk to people in the states that had these laws and you would say well, what do you look for? And they'll say well, we look for things like whether somebody has a criminal history or their gender or their age in terms of predicting whether or not somebody's going to go and commit a criminal act. And he'll say to them well, we already have laws that deal with whether or not someone with a criminal history -- if you're a felon, even if you're a non-violent felon, you lose your right to own a gun for the rest of your life. And they say well, that's too restrictive. They want to be able to go and take away somebody's gun if you've been arrested but not convicted or, like in the Nikolas Cruz case where you've had complaints, but the person has never even been arrested. It's pretty clear why they don't want to make this explicit in the laws because they know that if they make it explicit, they may have a difficult time in the courts later on because the courts will say well, you can't take away a fundamental right without some type of adjudication that's occurred.

 

The other things about gender and age are troubling. They'll say well, we know men are more likely to commit crimes than women. We know older people are more likely to commit suicides than middle-age people. Young people are more likely to commit crimes, young males in particular. And when you're hearing this type of thing you begin to think well, are we going to start saying that blacks are more likely to go and commit crime than whites, and so blacks should have their guns taken away? When I listen to this type of discussion that goes on, my mind immediately began to think of |well, should we have an amendment in these bills that would go and forbid discrimination on the basis of race, gender, or age and collect data on the rate on which it's imposed? My guess is democrats would fight tooth and nail against having that type of provision in there even though they want to have that type of provision in every other type of law that's out there.

 

So you have a whole range of things, expensive to go and hire a lawyer and, as I mentioned, many of these individuals have financial problems to begin with. And these laws are used relatively extensively. Florida in the first nine months that it had it last year had over 1000 confiscations. Maryland in just three months last year had 300 confiscations. And the thing is over time, the longer these laws are in effect, you seem to be using it a lot more, people are less reticent to go and use it.

 

And I'll just end with this. Even though it appears that relatively few people who go through this process seem to have legal counsel, it looks like about a third of the initial decisions to take away somebody's guns are reversed at the hearing stage, at least that seems to be the case for the two states that have had it the longest in the case of Connecticut and Indiana. So my basic point is why aren't we dealing with the laws that are already there and reforming them rather than having new laws that I think are being used as a vehicle to skip the protections that are in the existing laws.

 

John Malcolm:  Amy, want to respond?

 

Amy Swearer:  I agree with Dr. Lott on a lot of these very concerning scenarios, especially in -- a lot of states have implemented these, we're running into the same problems that you're seeing here across the civil and criminal system generally, such as lack of counsel being provided, people not being able to afford legal representation, and those are things, again, I would find concerning and that I think should be accounted for in these good red flag laws. In a sense, a lot of these protections should look like the same protections an individual would have prior to a civil commitment.

 

      In terms of existing laws on the books and enforcing those laws, again, I agree with Dr. Lott that one of the things we have to look at is better enforcement of those laws and also having better resources for enforcing those laws. One of the problems that states are running into is that even if they civilly commit someone, they're running out of beds in which to place people, and so they're reserving some of these civil commitments in that process for some of the most extreme cases because they simply don't have the resources.

 

But I'd also point out, in terms of looking at mental health and mental illness within these laws, not everyone who is dangerous has diagnosable mental health problems. Not everyone who is dangerous can be Baker Act or should be put through a civil commitment process. And so that I think is actually one of the points and one of the good points of these laws is to not look at mental health specifically, because Dr. Lott's right, we have a process for that already, but to look more broadly at what does it mean to be dangerous? Because I think there can be people who are mentally unstable who are not necessarily at a point of, again, mental health crisis but who are dangerous, either to themselves or others.

 

I'd also say part of this too is that civil commitment procedures right now have these lifelong consequences. This is, again, a very drastic measure, and I know part of that has to do with the inflexibility of some of our firearms laws right now in terms of disqualified persons. In a lot of states, it's very, very hard to get your firearms rights back once you've been civilly committed, even though for a lot of people mental instability, mental illness can be very transient in their lives, but our laws aren't reflecting that.

 

And you're also, again, seeing that in this hesitancy of family members. I think really you saw this in the Jared Loughner case, who was the man in Tucson who shot Gabby Giffords and a federal judge and I think ultimately killed 13 people about a decade ago, where his parents were seeing these signs of dangers. He was clearly mentally ill, clearly not in a good place. They were trying to hide his firearms, trying to get him help. But they didn't take that next step of actually trying to get a petition filed, and I think part of that is, again, that is a very drastic step for most people.

 

And so I think these red flag laws, in a sense, one of the ideas is to have this as more of a temporary measure for people as the stop-gap measure that doesn’t take it to that next extreme level of civil commitment. I would fully understand that there are ways of maybe working within the existing mental health framework to accomplish that. And, again, I think that's a valuable conversation to have, but I also think that it's equally valid for states to look at maybe a red flag law type of space to work within that also encompasses people who are not necessarily mentally ill.

 

And I'd agree with Dr. Lott in terms of states that would look at using gender or age factors as dangerousness. One of the things that he didn't bring up is that there are some states—and I think this is egregious—states that are -- one of the factors judges can look at is whether or not someone has recently purchased a firearm. You're essentially making lawful gun ownership into an inherently suspect action, and those are very bad things. We do not consider that in any way a good red flag law.

 

      I'd agree too in terms of Dr. Lott's argument about -- for instances of suicide under these red flag laws. It should never be the case that we're just disarming people for the sake of disarming them. A good red flag law should, like I think Colorado's does this and a couple other states, it should integrate these petitions into the existing mental health framework. So Colorado's -- and I do have some problems with Colorado's red flag law, but I think it's good that what they do is they say if there is a petition that is granted against you, you then have to have, immediately after that, a hearing as to whether you qualify for mandated court-ordered mental health treatment and get you hooked up with a mental health system. And I think that is a good process. That is something that should happen within these red flag laws. Because, again, the goal should be to get people back to a state where they are no longer dangerous and that this should be a more temporary measure reflecting the fact that either mental health problems or dangerousness is very transient for most people. And so, again, that's where I see these red flag laws fitting in is to help fill that concept of the transient nature, that this is a stop-gap measure, not a permanent measure,9 and that we should be ultimately circling back to getting people healthy and into a state where they're not dangerous.

 

John Malcolm:  John, any comments before we open it up?

 

Dr. John Lott:  Sure, thanks. I appreciate Amy's comment.

 

      The term is civil commitment but that's only one of the possible options that a judge has in front of them. They can go and say ask if the person agrees to get voluntary help. They can go and say take away the person's gun. There's a whole range of options that the judges already have. They can go and say if you don't temporarily turn in your guns for some period of time, until you've dealt with a mental healthcare professional, I will involuntarily commit you, even in the more extreme case if they don't think that somebody is going to follow through on the commitments that they make to the judge when they're in front. So I think it's a little bit extreme to paint it as saying that we can't already accomplish the types of goals.

 

      There's one thing that I really didn't get into and that is whether the existing red flag laws have the beneficial impacts that people would like them to have. When you look at all the states that we have data for -- and there's, as I mentioned before, there's only four states that really had these laws in effect before Parkland so it's a little bit of hard time to discern changes and effects. In the data that I've looked at, there's no beneficial impact in terms of any type of crime category or in terms of mass public shootings, the rate, severity, or in terms of suicides. In fact, if anything, suicides tend to go up a little bit, though it's not statistically significant. I think people miss the fact that these laws can actually have perverse consequences.

 

So let me give you one example. I have a very good friend of mine whose husband was murdered in front of her by a stalker that she had, and she was obviously extremely depressed afterwards. And even in her mind, she had concerns about seeing a psychiatrist or psychologist because of the fact that she was worried that they might see her being very depressed and take her away her ability to go and defend herself against someone like this stalker. Can you imagine, with regard to these red flag laws generally, if you can have a neighbor or friend or somebody else who may be in the best of intention go and say that I'm worried about her. She has guns, maybe we should take away her guns just to protect her. I know in this person's case it would've made it so that [it] would have been extremely difficult for her to go and talk to other people about how she's feeling. And just being able to talk to people, even if they're not mental healthcare professionals, can be extremely important for individuals' own mental health. Often, simply being able to go and talk to people and share your feelings with others can be extremely important in solving the problems that are there.

 

It's not just example with regard to this one person who I know very well, you have this issue with regard to police, for example. Police are frequently depressed on the job. They see a bad side of human history. They have relatively high suicide rates, but the problem that you're going to face with the police is the same. If a police officer has his gun taken away, that essentially means he's lost his job. It would mean that officers will be very concerned about going and talking to friends or relatives or neighbors or family members about the things that they see and the impact that it has on them because, again, they may be concerned that even the most well-meaning people will do something that will impose a real cost.

 

Here's the irony. Democrats and liberals understand this point very well when it comes to other issues, so, for example, AIDS. If you were to go and have a list of people with AIDS to go and cut down on transmission of AIDS there, understandably, the response would be well, you can't do that because what will happen is people will be afraid to go and get tested. They'll be afraid to go and get treatment and that will go and exacerbate the problem that's there. Well, that's exactly the same point, and if they understand it there, why don't they understand it in this case?

 

Now, there's a difference between red flag laws and the impact that this point has on red flag laws and the impact that this point has [on] something like for the Baker Act, for example, because in each stage of the Baker Act, the person is in front of the judge and is able to go and make a statement and explain what's going on. And the example that I had for this friend of mine who is depressed after her husband was murdered, she could explain her concerns to the judge at that point. Whereas, when you're talking about the red flag laws, the judge -- the only thing that they have in front of them is the written statement made by this concerned individual that's there. Anyway, I appreciate your time, and I look forward to hearing comments and questions.

 

John Malcolm:  Amy, if you heard something you want to respond to, I'm sure you'll get an opportunity. So let me ask a couple of questions, and then, of course, Amy if there was something else you wanted to say, you can jump in in response to what it is I'm about to ask.

 

So one thing that John has talked about is saying look, we already have civil commitment laws and mental health professionals should be involved. What's wrong with relying on that? And I suppose, I would love to get John's response, but you as well, Amy, on a couple of points related to that which is, one, involuntary commitment. Now, as bad as it is under a red flag law to temporarily be deprived of your firearms, in the case of involuntary commitment, you are actually deprived of your liberty. You are involuntarily admitted to a mental health facility for some period of time. It could be a short period of time for observation or significantly longer. So why is that somehow a better alternative?

 

      And then my second one is what do you do with the category -- because a lot of times to civilly commit somebody, you not only have to prove a dangerousness to self or others, you have to prove that they have a diagnosable mental illness. What do you do with the person who is, say, ideologically driven to commit violence, say, against gay people or black people? Or revenge? They're upset at a former girlfriend or some -- and they don't have a diagnosable mental illness. What do you do then?

 

      So Amy, let me give you a chance first, and then John, you jump in.

 

Amy Swearer:  Well, so I'd actually agree that that is generally speaking the concept, that scenario that red flag laws are attempting to encompass there. Again, because we're dealing a lot of times with people who don't quite fit the bill under existing laws, either for civil commitment or they haven't committed a felony-type offense. And I think you then run into problems if you say well then why don't we just expand existing laws, say, to encompass disqualifications for anyone who is voluntarily committing themselves or voluntarily seeking outpatient treatment?

 

      Well, that runs into a lot of the same problems that Dr. Lott has brought up is then it dissuades people from going in and seeking that type of help. And I'd say that the same thing too, you run into problems if you just want to expand it to anyone who's ever committed a violent misdemeanor. To me, then, you run into those problems of you have someone who at one point got into a bar fight and did something stupid and has a misdemeanor conviction. And it just to me seems almost too broad in its capturing in a very real sense more of those same scenarios where someone may be kind of reaching that stage of dangerousness but not really.

 

And so, again, with a good red flag law, it should be the case that it's taking care of a lot of the problems that Dr. Lott has brought up in terms of ex parte orders, in terms of having rights taken away without hearings. I would agree that a lot of times with these ex parte orders, in the scenario that he was envisioning where you had a well-meaning friend or neighbor who was worried that someone might commit suicide. In any good red flag law, unless that person can prove to a judge that it is an imminent danger, imminent and extreme, that hearing should take place prior to any sort of separation of that right. Because, again, these ex parte orders should be for imminent scenarios only, and if it's just a case of “Well, I'm worried that this person may ultimately be struggling in a way that they're becoming dangerous to themselves,” that hearing should take place beforehand in any sort of what we would consider a good red flag law.

 

      So with that, I'd turn it over to Dr. Lott.

 

John Malcolm:  John?

 

Dr. John Lott:  Again, I just would point out that involuntary commitment is only one of the options that judges currently have at their disposal in dealing with these people. Obviously, it's extreme, taking away somebody's liberties like that and, anyway, lightly. And I hope the judges don't do that. In fact, you don't see that used very much. I guess this general issue that we have here is why not fix the existing law? If you think that even more options should be available to the judge, then already there, you can do that.

 

From talking to people and being on this Uniform State Law Commission panel, being an observer on it, the very strong impression that I got is that it's not by accident that they're starting with a fresh piece of paper rather than going and reforming in any way the existing laws. And the reason is it's a lot more difficult to remove protections that are already there in the existing laws than it is to start off with a law where you haven't added in the protections that Amy's mentioning.

 

And so, maybe this is a second-best or political-type argument that's there but I think if you believe you're going to be able to get the right law from these red flag laws, starting with these clean slates, look at the experience that you had. As Amy has mentioned that none of these laws really have the types of protections, or at least I think she mentioned, have the types of protections that she would like to see put in place, and the question is why? I think Democrats would have a much more difficult time removing those protections from the Baker Act.

 

If you're concerned, Amy raises the point about not enough beds, all right. I've heard that. So rather than going and having the federal government going down and giving out funds to states to encourage them to go and adopt red flag laws, why not use those funds to go and help provide additional beds, if that's the concern that's there? If you're concerned that there's too much of an emphasis on just civil commitment, though I don't think that that's the case because I think -- and what I've looked at, judges frequently have availed themselves of lots of other options, then make it more explicit, what those other options can go and be.

 

The weird thing with these red flag laws is that the only option that you have is guns, and it just makes no sense to me why that should be the only focus. I think the reason why it is is that gun control advocates want to make everything about guns, per se. And it's true, you have a number of people who go and commit suicide with guns, but people commit suicide in lots of other ways and you have very close substitutes. The research by economists indicate, to me at least, that you see really no change in the total suicides; you see changes in terms of how people commit suicide when you have different types of restrictions put in place. I just think it's a mistake to focus on guns as solutions. Sure, it may be part of it, and if you want to make it part of the existing Baker Act or 302-type provisions, if you don't believe that judges already have that option, then fine, talk about amending. But I bet you, if you tried to do that, Democrats and gun control activists will fight against you on that.

 

John Malcolm:  Micah, do we have any questions in the queue?

 

Micah Wallen:  We do have a couple questions in the queue, and we'll go ahead and move to our first caller. 

 

Caroline Douglas (sp):  Hi there. My name is Caroline Douglas, and I have an observation that pretty much agrees with what John is saying, but my question is why aren't we broadening the viewpoint to look at how America handles mental illness? And I'd like to relate a sentence about 1987, I was studying for the bar in Concord, New Hampshire and all of a sudden, the doors to the state mental hospital were thrown open and the people were dismissed. There is a Netflix movie out there called, "God Sees Me" [God Knows Where I Am]—true story—that talks about what happened to one of those patients. If we shift at how America handles and treats mental illness in 1987, why are we sticking with these narrow parameters, whether it's the Baker Act or anything else? Why are we not broadening our viewpoint to discuss causation and how Americans handle mental illness as an entire national policy?

 

Amy Swearer:  Well, John, if you don't mind, I would like to go ahead and respond to that.

 

Dr. John Lott:  Sure.

 

Amy Swearer:  So [Caroline], first of all, thank you so much for your question. And, again, I'd actually agree with this general premise that the United States and states in particular need to take a more holistic approach to mental illness. So to me, it's not this question of either/or – we either have red flag laws or we look at fixing existing mental health structures. It's a both/and. I think there's a lot of work that needs to be done within the existing mental health framework, whether it's states funding more public psychiatric beds, which we've seen a 90 percent decline in public psychiatric beds -- in total numbers of psychiatric beds. So again, these are beds of last resort for people in mental health crises. We've seen a 90 percent decline since the 1970s.

 

There are problems with how states have gone about and how the federal government has gone about treating mental illness and the fact that a lot of mentally ill people are winding up in prisons instead of being treated specifically for their underlying conditions. And so to me this is, again, a both/and. We need to be looking at both fixing some of these underlying problems, preventatively treating mental illness, making sure that people are not falling into mental health crises to begin with, but then also, again, red flag laws are intended to encompass not just people who are becoming dangerous because they are mentally unstable but for a number of other reasons that fall outside the scope of the existing mental health structure. And so, again, I'd agree with you and I'd say that it's a both/and scenario.

 

Dr. John Lott:  I am concerned with the mental healthcare aspects, and I agree that there are real problems with the way we handled it in the 1970s. I'm not sure I have much more to say than I've already said on this point, but I am concerned about how we go after people who aren't mentally ill, who aren't thinking about going and committing a crime. If somebody makes a threat against somebody, that is a crime, okay? And it should be handled. Maybe we should be more sensitive to that rather than trying just to take away a person's legally-owned gun. If somebody is really a threat, to use Amy's words earlier about the individual being extreme and objectively dangerous, then the person should be prosecuted. But if the person really is that way, just taking away their gun isn't going to stop them from going and trying to commit some type of crime.

 

The main source of legal guns in the United States are drug gangs. If you think that you can stop somebody from getting a gun, if they're really as Amy was describing them, you're going to be no more successful than stopping them from being able to go and buy illegal drugs. And if you think we've been really successful in stopping people from buying illegal drugs, well, go look at Mexico and see how successful they've been in stopping people from buying guns.

 

Mexico has one gun store in the country since 1972. It's been run by the military. The guns are extremely expensive down there, and the most powerful rifle you can legally buy is a 22-caliber. And yet it looks like this year, Mexico is going to have a murder rate well over six times higher than what we have here in the United States. Drug gangs, just as they bring in drugs from the rest of the world, go and bring in weapons to protect their valuable property. It's not like one gang can go to a judge and say, “This other gang stole our drugs, can you help us get them back?” And so this focus so heavily on just legal guns I think is missing a lot of the problem that's here.

 

Amy Swearer:  Yeah, and if I could jump in just real quick onto that. I'd agree that the United States does have a problem in terms of an illegal firearm market and the ability of violent people to get guns illegally, but I think that's a separate question from the question of do we prevent them on the front end from legally obtaining those firearms? The same could arguably be said of felons right now. So we prevent felons from legally obtaining firearms knowing that they still probably have very viable ways of getting those firearms illegally, and we try to crack down on the ways in which they obtain those firearms illegally. But we generally don't sit back and say well, just because we know that felons are going to get them illegally, we're not going to prohibit them from legally getting them in the first place or from at least preemptively saying --

 

Dr. John Lott:  You're missing my point. My point wasn't look, I don't think you're going to be successful in stopping them, but the point is if you really believe the type of language that you were talking about, "extremely and objectively dangerous" type individuals, if you really believe that, then just saying I'm not going to let the person legally buy a gun, why are you stopping at that point? Prosecute the person if he's making threats. Don't just go and say I'm just going to take away this person's gun.

 

I have a real problem though, just in generally, if the person's a white supremacist, God forbid somebody's like that. When does somebody cross the line between making bad comments that are objectionable or even things that make other people uncomfortable and you want to go and take away the person's guns?

 

And I'll just make one other comment and that is with regard to mental illness, I should've made this clear earlier, people who are mentally ill are much less likely to be violent than the general population. They're also much more likely to be victims of violent crime than the general population. And one of the things that you see in this discussion is just their ability to go and defend themselves. You go and you have to be somewhat careful in just disarming people even when they're mentally ill because somebody being mentally ill doesn't necessarily mean that they're going to be a danger to others or themselves.

 

Amy Swearer:  I absolutely agree with you Dr. Lott on that last point. I think, again, this is why it's important that for any law that we're talking about in terms of restricting Second Amendment rights, it needs to be based on measures of whether that person is dangerous to self or others and not ever specifically just on whether they are dealing with mental illness because that's a different question inherently from whether they're dangerous or violent. And so I'd actually agree with you on that latter point.

 

Micah Wallen:  We'll now move to our next caller.

 

Caller 2:  Hi, it’s a really interesting discussion. My concern, and it seems to be reflected in the comments, is that is the role of predictive psychology in red flag laws which seems to have a very problematic and unsuccessful history. It seems to me, and this is the comment on which I'd like your observation, that the more closely we bring the Second Amendment right of gun ownership into alignment with other rights and privileges, say something as simple as a driver's license, the safer we are legally.

 

Dr. John Lott:  Can you repeat that? That last part?

 

Caller 2:  Yes, the last part is the more closely we bring the right to gun ownership into alignment with other kinds of licensed activities such as driver's license, if you commit felonies with a car, if you use a car improperly, if you use a car while intoxicated, you can lose that privilege. Why can't we see gun ownership as much more like a driver's permit?

 

Amy Swearer:  So with regard to the first half of that question, and I'm sorry, I didn't catch the caller's name, but with regard to that predictive psychology, I think there's a great analysis of this that was written by Alan Dershowitz a couple weeks ago, and I generally agree with him. This idea of red flag laws predicting dangerousness, this isn’t setting a new precedent. This is actually following a precedent that our legal system already does with regard to not just the Second Amendment right but to restraining individuals and denying them liberty generally.

 

So when you look at domestic violence orders of protection, restraining orders, even involuntary civil commitments, these are based on analysis by judges, by some sort of due process protected mechanism that someone based on their actions or statements, they're indicating an intent to inflict future harm, either on themselves or others. So this is not necessarily a new concept of having to evidence that someone is a threat and then making a determination that there is sufficient evidence that they will be a threat.

 

Though I agree that there are inherent concerns about we don't want to turn this into a Minority Report society where we're using unquantifiable calculations to determine whether someone is dangerous. And I think all of this and those concerns should be reflected in how we are using due process protections and the language that we're using in these laws.

 

So we should be using appropriately specific language about what we are identifying as threatening or dangerous. And, again, one of the last things that we want is the scenario where, for example, someone is able to say oh, “Well this guy is in a MAGA hat or a Bernie hat, and so that's inherently dangerous.” That's something we don’t want, and so part of that is using specific language, having high burdens of proof, not some sort of probable cause, low bar to trip over standard, having the full array of trial rights, being able to cross-examine witnesses, present testimony on your behalf, having rights of appeal. And so I think a lot of that can be -- just in the same way it is for the criminal law system and other civil commitment systems, a lot of that can be buttressed against with those practical protections in place.

 

Dr. John Lott:  I guess I would just agree in part and say then let's build on the civil system that we already have in place there which has all those protections because Amy has a lot of concerns about how things would operate. And I'm sure if she was in charge, I would have relatively few concerns in terms of how it would operate. But the thing is Amy's not going to be in charge. And when I was on as an observer on the State Uniform Law Commission there, I wonder what your reaction, Amy, would've been for the different people from these states that would come in and talk about what the actual practice was when they would go and try to predict whether or not somebody's going to commit a crime based upon whether they had been arrested but not convicted or whether their gender or their age was involved. Because those are the types of things people are being left with.

 

As I say, I would like to see these laws have a non-discrimination provision put in there, and I think one of the reasons why the State Uniform Law Commission decided not to go ahead and provide a model law was because of these types of objections and discussions that were raised. The gun control people who were on the panel didn't like the direction that the conversation was going, and they didn't want to have these types of protections being put in there and that's, again, a reason why I think they want to deal with the clean slate.

 

But the questioner's first comments, I agree with completely in terms of we have to realize that there are real limits on what mental healthcare experts can go and predict. And if you have any doubts, go and read through the academic literature on this because they acknowledge, particularly for these types of mass killers, that they have very little confidence in their ability to go and predict these individuals.

 

Micah Wallen:  I believe that concludes our time for today. So I will give anyone a change for any closing remarks.

 

Amy Swearer:  I guess [I'll] close with just a couple thoughts. I'd say, again, as I suspected, I think Dr. Lott and I agree on a lot of these basic concepts. And I think at the end of the day what this comes down to is whether red flag laws, whether this general idea, this concept is something where people who are in favor of a strong Second Amendment right and favor of due process, whether conservative, liberal, or libertarian or somewhere in between, whether this is something we should throw out entirely or whether it's a conversation we should continue to participate in, that we should continue to, where appropriate, pursue these laws, work with people who are pursuing them to ensure that as they're being put in place or considered, that they're being considered within the proper and adequate framework of due process.

 

And so to me I look at this as a concept that I see fitting, again, this stop-gap measure where it's not a concept that we need to just inherently and immediately throw out, but it's something that is a framework we can work within. And that it's, again, not an either/or. It's a both/and. It's part of -- a small part but a meaningful part of a more comprehensive process and a more comprehensive framework for dealing with not just gun-related violence but also mental health issues and dangerousness and suicidal tendencies. And so to me, it's a conversation that I think we need to keep engaging with and participating in and not just immediately dismiss it. Though, again, I'd agree with Dr. Lott that it's part of a broader conversation about how do we deal with this and that there may be, especially within particular states, there may be other better, more meaningful ways of getting at this same problem.

 

Dr. John Lott:  Let me leave you with a different thought at the end and that is I've already talked about how I think you can accomplish the stuff that you want to with the existing framework that's there rather than having a fresh, new law, but I think people have to realize we're not going to catch all these guys beforehand no matter how much money we spend. Just as an example, the fact that half of these individuals over the last 20 years were actually seeing mental healthcare professionals relatively shortly before they engaged in their attacks and not one of them was identified as a danger to themselves or others.

 

And that raises a question, what's your back up plan? What do you do when you're not going to be able to go and identify these individuals beforehand? And I think John Malcolm was pointing out earlier, you also have people who wouldn’t be defined in any way as mentally ill who engage in these types of attacks. And to me, the thing that people don't want to talk about are these gun-free zones.

 

We have over the last 20 years, we have about -- or over years, we have about 95 percent of these mass public shootings keep on occurring in places where people aren't allowed to protect themselves. These killers, whether they're crazy or not, want to go and pick targets where they know victims aren't going to be able to go and defend themselves. And I wish people would spend about one-tenth as much effort in talking about trying to -- what will we do when we can't identify these individuals, as we spend on things like these red flag laws and these discussions because it's brought up in terms of these mass public shootings. It's not really, I don't believe, a serious response for people who are planning these attacks six months at least, a year, two, two and a half years in advance.

 

The notion that you're going to be able to prevent somebody from getting weapons isn't going to be something you want to rely on. And then the question is well, what else do you do? What do you do -- and simply having one guard there in uniform, an officer, they have an almost impossible job if an attack occurs in one of these gun free zones and you do have an officer. They're going to be the target. They're going to be the first person killed because these killers know then that they'll have free reign to go and kill other people. Just relying on these people being stupid and not planning these things and taking these things into account I think is a real mistake.

 

Micah Wallen:  And on behalf of The Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.