The Gongwer Blog

Extreme Risk Protection Orders: Mixed Evidence On Success

By Alyssa McMurtry
Staff Writer
Posted: March 6, 2023 10:12 AM

In the wake of the mass shooting at Michigan State University, the conversation surrounding gun control reform in Michigan has intensified.

The new Democratic legislative majority and Governor Gretchen Whitmer vowed to pass gun control laws, but the implementation of these laws could take years of practice to get it right.

Among the many pieces of legislation suggested by law makers is extreme risk protection orders, also known as red flag laws, which allow a judge to order the temporary removal of a gun from a person's possession for fear they may harm themselves or others.

Lansing resident Anthony McRae, 43, was responsible for the shooting at MSU which killed three students and critically injured 5 others. He was previously arrested in 2019 for carrying a concealed pistol without a license. Mr. McRae was able to plead guilty to a misdemeanor, which allowed him to purchase guns legally a few years later.

It is not uncommon for prosecutors to seek plea deals in first offenses for carrying a concealed weapon without a license when no other crime was committed, but Democrats are seeking ways to prevent certain individuals accessing guns (See Gongwer Michigan Report, February 17, 2023).

Legislative Democrats are pursuing bills that would require universal background checks, secure storage laws and establish extreme risk protection orders. In a statement, House Speaker Joe Tate (D-Detroit) said he personally lost family members to gun violence, calling gun violence a "public health emergency," (See Gongwer Michigan Report, February 21, 2023).

Currently, 19 states and the District of Columbia have laws around extreme risk protection orders, including Connecticut, California, Colorado, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington.

An Associated Press analysis late last year found that the states that have authorized extreme risk protection orders rarely used them. The report highlighted Chicago, which has some of the strictest gun control statutes in the nation. Since 202, the city has had 8,500 shootings resulting in 1,800 deaths, but the state's red flag law was only used four times.

Other studies have suggested the orders have had some success at preventing suicide.

The extreme risk protection orders vary. Some states only allow police to petition a judge to order someone to surrender their firearms. Other states also allow family members of gun owners, school employees, co-workers or those in health care to do so, but the AP found in these states, few people outside of police made requests because they didn't know about the law.

Indiana was one of the first states to pass a red flag law. Enacted in 2005, the law is known as the Jake Laird law and was named after an officer who lost his life when responding to a shooting at an Indiana home. The shooter, Kenneth Anderson, killed his mother and shot several officers including Mr. Laird. In January 2004, Indiana State Police discovered Mr. Anderson had been taken to a hospital for emergency detention, and officers removed the weapons from his home. When Mr. Anderson was released from the hospital, he was able to retrieve his weapons because Indiana did not have the legal authority to retain them.

Jerry King, president of Hoosiers Concerned About Gun Violence, said in an interview with Gongwer that the law was enacted despite Indiana's pro-gun culture because the police community fully supported the law.

Hoosiers Concerned About Gun Violence was formed in 1992 and is one of the oldest gun violence prevention organizations in Indiana. The organization, like many, was formed in the wake of a shooting tragedy. During the past 30 years, the organization has held community forums to educate people on gun safety and has provided input on legislation relate to accessing guns.

"In Indiana, very sorry to say, we're more often objecting to bills that we think are foolish than we are in support of," Mr. King said.

The Indiana law has come under some criticism from gun control advocates for not going far enough. Mr. King spoke of the recent mass shooting in 2021, when Indiana resident Brandon Hole, 19, killed eight individuals at a FedEx facility in Indianapolis.

"I think it's a lack of police officer enforcement and also a matter of county prosecutors not doing a very reliable job of enforcing this," Mr. King said.

Mr. Hole showed many signs that he should not have a gun in his possession, and his mother made several attempts to get the police to confiscate the gun, Mr. King said, recalling the investigation. In 2020, the shotgun in Mr. Hole's possession was removed, but he was able to purchase a new weapon a year later. That is a key omission, and critics have said that extreme risk protection orders should prohibit the subject from being able to purchase a new weapon.

The Michigan Senate introduced bills this month to both create the extreme risk protection order process and prohibit persons who are under an order from purchasing a firearm. Those are SB 83 and SB84, respectively.

"The county prosecutor's office didn't bring it to court, there was no extreme risk protecting process," Mr. King said about the Indianapolis shooting. "The community … frankly blamed the county prosecutor for how it played out and what was so interesting to us was that other county prosecutors in Indiana came to his defense."

Mr. King also said Indiana's Marion County prosecutor said law enforcement gets "way more risk protection calls than they can deal with." Very few are taken to court, Mr. King said.

"That was a real eye opener," he said.

Under Indiana law, an individual who is "an imminent risk of personal injury" to themselves or others; or an individual who may be a harm to themselves or others in the future due to lack of properly medicated their mental illness or due to documented evidence that would "give reasonable belief" the individual can be violent can have their weapon temporarily seized.

The weapons can be seized with or without a warrant, and courts must hold a hearing within 14 days of the weapon seizure. Law enforcement keeps the firearm until further order of the court and an individual can petition to have their firearm returned after at least 180 days.

Several other states have similar guidelines to Indiana. In Florida, the state Legislature passed their risk protection orders shortly after the Parkland shooting in 2018. The court issues a risk protection order that cannot exceed 12 months. In Illinois, the firearm restraining order act enables the temporarily seizure of the weapons for six months, and the petitioner can request a renewal of the restraining order within three months before the expiration date.

Those opposed to risk protection orders cite a lack of due process or infringement on their Second Amendment rights as a reason for not enacting the laws.

Christopher Smith, a criminal justice professor at Michigan State University, is also the chairperson for the Michigan Coalition to Prevent Gun Violence. He said the organization was formed after the Sandy Hook school shooting in 2012 by retirees who were concerned about their grandchildren going to school. Like Mr. King's organization, the Michigan Coalition to Prevent Gun Violence educates people through interviews, speaking engagements and conversations with lawmakers.

Mr. Smith said opponents to risk protection orders worry the law would be used in a vindicative way. He also mentioned a study from Washington that found people of color were more likely to have their weapons seized than their white counterparts.

"This is not seamless and risk free," he said. "But I think it's necessary and valuable."

Risk protection orders, he said, are beneficial for suicide prevention, those in domestically violent situations and even could intervene in circumstance where an individual might carry out a mass shooting.

"My main concern about the implementation (of risk protection orders) is the risk that there are people within law enforcement or prosecutors, certainly in some counties in the state, whose view of the Second Amendment is premised on their own wishful thinking of what they want the Second Amendment to mean, and not what the Supreme Court has actually set," Mr. Smith said. "And therefore, they will be influenced by their own ideology to be reluctant to enforce this law."

If enacted, implementation would most likely vary county by county, Mr. Smith said.

As far as racial discrimination and risk protection orders, Mr. Smith said having a more diverse law enforcement agency by race and gender is one place to start. He also said making the job more appealing, by having more education requirements and greater selectively, would also help.

"The problem is not just the police, prosecutors, judges– the biases in society will be reflected in the decisions of people who make discretionary decisions," he said.

Colorado also has a risk protection order law. Colorado Public Radio examined more than 300 risk protection cases from 2020 to 2022. It found that 168 people in total were required to give up their firearm for one year or longer.

CPR also found the law was unevenly applied throughout different law enforcement agencies. Black Colorado residents made up 9 percent of the respondents or subjects of the petitions. In Denver specifically, CPR found Black residents made up 18 percent of risk protection cases in a city where they only account for 10 percent of the population.

More conservative counties were also less likely to file petitions. CPR said only two petitions were filed in El Paso County, which declared itself a "Second Amendment sanctuary."

In addition to fully enforcing red flag laws, Mr. King said his organization is in support of universal background checks and gun storage safety laws. Indiana recently passed a law allowing a permitless carry option for those who meet certain criteria.

Mr. King said every year in Indiana, a representative from Gary introduces a bill to require the courts to immediately confiscate weapons from the homes of an individual who has been found guilty of domestic violence. Another representative, Mr. King said, introduces legislation to prohibit firearms at polling places. Both of those bills fail to gain traction.

Gun safety laws are not just for people who shouldn't have guns, but also for those who are allowed to have guns, Mr. King said.

Mr. King said often many people die due to accidental injuries, including children who either injure themselves or others around them. Additionally, 60 percent of gun fatalities are suicides.

Everytown for Gun Safety, the largest gun violence prevention organization in the U.S., said on its website that despite Indiana having extreme risk protection orders, it still "has some of the weakest gun laws in the country."

The organization rate Indiana as 30th in the country for gun laws. On average, 1,021 people die by guns in the state annually. By comparison, Michigan is rated 24th, and on average, 1,270 people die by guns yearly. Everytown still called Michigan's gun law weak, citing the lack of background checks at shotgun sales, no extreme risk protections orders and no laws prohibiting domestic abusers from possessing guns.

Mr. Smith teaches in one of the buildings where shots were fired on the MSU campus. He said he was somewhat numb what happened.

"The gun situation in the United States puts us all at risk all the time," he said. "With 400 million guns on the loose, there's a limit to what we can do to try to reduce risk and harm," he said.

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