On Sept. 24, 2019, John R. Lott Jr. was among more than a dozen witnesses testifying in a public hearing before the Pennsylvania Judiciary Committee on behavioral health, Second Amendment Rights and other gun-related issues. The essay below is based on his testimony. Watch the entire hearing here.
Everyone wants to stop dangerous people from getting guns. The hot new policy option before this committee is Red Flag laws, which take away the guns of people deemed dangerous to themselves or others. But there is a much more effective alternative already in place.
They are known as Baker Act statutes (Pennsylvania’s is called the “Mental Health Procedures Act”), and have been around since the early 1970s. They allow police, doctors and family members to have someone typically held in most states for a 72-hour mental health examination based upon a simple reasonableness test – little more than a guess or a hunch. The hold in Pennsylvania is up to 120 hours.
These laws focus on mental illness, and they require that the individual be evaluated by mental-health-care experts. If a person can’t afford a lawyer, a public defender is provided. While judges can involuntarily commit an individual they believe is a danger to themselves or others, there is a range of options they can take, with the threat that other options can be followed up with involuntary commitment.
However, instead of using these laws, 17 states have now adopted Red Flag laws, with 13 states passing them since the shootings at the high school in Parkland, Fla. While Red Flag laws are often discussed in terms of mental illness and they are frequently used in connection with concerns about suicide, only one state’s law even mentions mental illness and none of the states requires that a mental-health expert be involved in evaluating the person.
And, unlike Baker Act statutes, these new laws don’t offer safeguards, such as providing a public defender for individuals who can’t afford a lawyer or covering their legal costs. When faced with legal bills that can easily amount to $10,000 for a hearing, few think that owning a gun justifies these costs.
Under these laws, initial confiscations of firearms often require just a “reasonable suspicion,” which is little more than a guess or a hunch. Judges simply have a piece of paper in front of them with the complaint when they are first asked to take away a person’s guns. When hearings occur weeks or a month later, about a third of these initial orders are overturned, but the actual error rate is undoubtedly much higher.
Red Flag laws let the government take firearms away from people arrested but not convicted of crimes. Even simple complaints without arrests have been enough. That is quite a change in people’s constitutional rights.
During the first nine months after Florida passed its Red Flag law last year, judges granted more than 1,000 confiscation orders. In the three months after Maryland’s law went into effect, more than 300 people had their guns taken away. In one case, an Arundel County man was fatally shot in the struggle that ensued when police came to confiscate his weapons at 5 a.m. Connecticut and Indiana, which have had these laws in effect for the longest time, have seen significant increases in confiscation orders as time has gone by.
These laws let the government take firearms away from people arrested but not convicted of crimes. Even simple complaints without arrests have been enough. That is quite a change in people’s constitutional rights, and don’t be surprised if courts eventually strike down such provisions. Gun-control advocates have resisted making this change explicit in the laws, presumably out of fear that it would create problems in the courts. Also, courts frequently take into account other factors such as gender and age in predicting the chances someone will commit a crime or commit suicide.
When people really pose a clear danger to themselves or others, confine them to a mental-health facility. Guns are only one way they can do harm, and if they are intent on hurting others or themselves they can find a way.
Consider, also, the impact Red Flag laws can have on people who need and want help. Absent such laws, a person contemplating suicide might speak to a friend or family member and be dissuaded from that dire course of action. With the laws, they may fear that speaking out will result in a report to authorities – and their ability to defend themselves or loved ones would be restricted.
Take the case of a woman I know who saw her husband murdered in front of her by a stalker. Understandably, she was incredibly depressed, but still fearful for her safety. Under Red Flag laws, she wouldn’t talk to those closest to her about her feelings because she worried about losing her ability to protect herself. Even a well-meaning person might have gone to a judge to have this woman’s ability to defend herself taken away. She was even reticent to speak to a psychiatrist about her depression, but at least she would have an opportunity to explain her concerns with those people.
Police officers often experience depression on the job. Would we be better off if they worried that sharing their feelings might mean having their guns taken from them and the loss of their jobs?
Liberals understood this point during the AIDS crisis. They knew that the threat of quarantining would discourage infected people from seeking medical help. But they seem unaware that the threat of leaving people defenseless might engender similar concerns.
Despite all that people are asked to give up with Red Flag laws, the evidence shows no benefits to them. Looking at data from 1970 through 2017, these laws had no significant effect on rates of murder, suicide, mass public shootings, robbery, aggravated assault, or burglary. These laws do not save lives.
And they are not the only option. Given the civil rights protections that are built into Baker Act statutes, as well as the mental-health evaluation requirements, let’s make use of these laws before enacting others that won’t address the real issue. If more money is needed for facilities, put resources there instead of what it would take to set up Red Flag laws.