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Raising Red Flags: What Florida Didn't Have, But Oregon Does

What law enforcement can do when faced with early warning signs of a shooting may depend entirely on state laws.

Posted: Mar. 1, 2018 3:23 PM
Updated: Mar. 6, 2018 11:56 AM

SALEM, Ore. — Both the Federal Bureau of Investigation (FBI) and local law enforcement in Broward County, Florida have received criticism since the shooting at Marjory Stoneman Douglas High on Valentine's Day. The shooter, Nicolas Cruz, had a long history of reports to law enforcement—including 911 calls and at least two tips to the FBI—and nobody intervened.

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Yet, at least in many of these cases, Florida law enforcement can justifiably deny having had the ability to intervene. There is no law in Florida that would allow police to arrest a person or seize their firearms based on the sheer volume of warnings—if no single one of them merited an arrest and conviction. Nor is there a law that would allow police to step in with any effectiveness just because a friend or family member expressed special concern about a person's mental state, not without evidence of a crime, or of debilitating mental illness.

Raising Red Flags

Enter the so-called "red flag law." The 911 calls, the accumulation of guns, the antisocial behavior and morbid posts on social media—Americans largely refer to these as red flags. In some recent mass shootings, though not all, there were plenty of signs that the perpetrator was on a dangerous path. And some people are clamoring for legislation that would allow law enforcement to act on these signs alone.

The term "red flag law" seems to be new, but the practice is not. Oregon has one, and so does Washington, California, Connecticut, and Indiana. The typical name for these measures, however, is ERPO—or extreme risk protection order.

None of these laws are identical, however they all aim to give law enforcement special authority to remove deadly weapons from a potentially dangerous individual.

What Florida Didn't Have, But Oregon Does

Oregon's ERPO law, Senate Bill 719, was adopted in August of 2017. The bill describes a process that must begin with a law enforcement officer, a family or household member of the individual filing a petition with a court.

The petition would name a potentially dangerous individual, and request that the court issue an extreme risk protection order, barring that individual from possessing or attempting to possess a "deadly weapon"—which includes all firearms, but can include any "instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury," from the language of the bill itself.

A court served with an ERPO petition must address it within the same day. The petitioner (the police officer or loved one) can explain orally or in writing why the ERPO is necessary. The court also must consider all previous reports to law enforcement of threats that the individual made against others or themselves.

If the court chooses to issue the ERPO, then law enforcement can go ahead with confiscating the individual's guns, assuming they've already been identified. The individual can appeal after 30 days. If the appeal fails, then the ERPO will stay in place for one year.

What If?

The process is not without pitfalls. To pursue a hypothetical, what if Florida had an ERPO law identical to Oregon's? First, someone would have had to take enough interest to deliver such a petition to the court. Cruz had no family left, although he did have friends and a "household," somewhat. Someone, a police officer, a friend, his host family, or one of the people that made one of those 911 calls, would have then taken it a step further, identifying Cruz as a significant threat to himself or others. They would have had to make enough of an effort to file the petition.

According to the New York Times, these laws and the necessary processes to achieve an ERPO are still fairly unknown, even to law enforcement.

After a petition is drafted, the decision would go to a court. The court would have to decide, based on the petitioner's statement and Cruz's past history, that he was a significant danger. Based on what we now know about Cruz's history, there's a good chance that the ERPO would have been issued. However, there's no guarantee—the petitioner must meet the burden of proof that Cruz presented an imminent risk of suicide or harm to another person.

As many will point out, an ERPO and resulting confiscation of weapons is a fairly serious imposition on a person's Constitutional rights, and it doesn't necessarily arise from a clear crime. In Oregon, Republicans largely opposed the bill—and so did some Democrats. However, the bill was sponsored by Senator Brian Boquist (R-Dallas), who drafted it after his stepson, a veteran of the US Navy, committed suicide, according to The Oregonian.

Boquist hoped that the bill would allow authorities to intervene, particularly in cases where troubled veterans became a demonstrable danger to themselves or others. Boquist was the only Republican who voted in favor of the bill—it was carried by Oregon's Democrat majority in the House and Senate.

There are still plenty of people who oppose such laws, because of what they allow authorities to do. And they might ask—quite reasonably—would an ERPO law in Florida have even caught Cruz? Would taking his guns have been enough?

What the Data Says

Connecticut implemented their ERPO law in 1999. A 2016 study on the law's effects in Connecticut found that the law was at least somewhat effective in reducing suicides. The academics who carried out the study, largely professors from Duke University, concluded that "10 to 20 gun seizures were carried out for every 1 suicide averted." Of some 762 gun seizures, 21 people still managed to commit suicide, only 6 of them with guns. The study did not address murders or mass shootings.

States with ERPO laws tend to see an uptick in the law's use after mass shootings, according to the New York Times. In recent years, as mass shootings have become more common, that usage has only continued to rise.

The most common scenario for the law's employment has been in cases of suicide risk. It's more difficult to tell in which cases the law has been effective in preventing murders or mass shootings.

Although Connecticut has boasted such a law for over almost two decades, it did not prevent the shooting at Sandy Hook Elementary in Newtown, Conn. in 2012. However, there was never any petition for an ERPO to take the shooter's guns. This could lend credence to the argument that an ERPO law in Florida may have still missed Cruz—or that these laws deserve greater publicity and support.

The National Rifle Association and other pro-gun groups have largely opposed such laws on the grounds that they may step on due process or Second Amendment right. However, it remains to be seen how public opinion in various states may swing after the Parkland shooting. The Associated Press reports that Governor Kasich, the Republican governor of Ohio, now supports a "red flag" law in Ohio, among other gun control measures.

The issue may be one of increments. The Umpqua Community College shooting in Oregon, our last mass-casualty event, came before the ERPO law was passed. However, the effectiveness of an ERPO depends entirely on people identifying warning signs and taking the appropriate steps. Then it takes trust, and hope, that the individual loses their ability to cause damage, and stays that way. There can be no guarantee that laws like these can stop every troubled individual from harming themselves or others—but they may, at least, stop some.

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