If they work, at all.
As mass shootings continue to ravage American communities and Congress isn’t addressing the problem comprehensively on a federal level (and the Supreme Court continues to enhance Americans’ accessibility to firearms, rather than restrict it), states are increasingly taking matters into their own hands. For many state legislatures, that involves the implementation of red flag laws.
These laws are often described as some of the more effective gun safety measures (besides, of course, banning firearm use entirely, which is far more effective). Still, these legal tools are far from perfect. And now, in the wake of the latest mass shooting in Lewiston, Maine (on top of the 580+ other mass shootings so far this calendar year), the debate over red flag laws has begun anew.
In 2019, Maine considered adopting a red flag law but eventually rejected it. Instead, the state opted for a measure called a “yellow flag law,” which was meant to reflect a compromise of sorts between gun safety advocates and gun rights enthusiasts.
Now, people are asking whether this Lewiston shooting would have taken place if a red flag law were in effect.
“Our gun laws are woefully weak,” Camilla Shannon, chair of the nonprofit Maine Gun Safety Coalition, said last week. “We have long felt that this is a question of not if, but when…I hope that this is a wake-up call.”
What are red flag laws and how do they work?
Red flag laws are state-enforced legal measures that allow someone to formally raise a red flag, so to speak, about someone else that they think might hurt themselves or others.
“The basic idea behind these laws is that they allow a court to order a firearm to be temporarily taken away from a person who presents an immediate risk to themselves or others,” Joseph Blocher, co-director of Duke University’s Center for Firearms Law, told CBS News.
But how does one get a court to order that firearm removal?
There’s no simple answer to that question. Each state has its own set of laws around who can petition a court to request firearms removal.
In California, for example, family members, employers, coworkers, teachers, and current/recent household members of the person named in the petition can file a request with the court. In Florida, by contrast, only law enforcement members can file that request with the court. (You can see the particular details of each state’s red flag law requirements here, via Everytown.)
Here are which states currently have red flag laws in place:
States with red flag laws
- Vermont
- New York
- Massachusetts
- Rhode Island
- New Jersey
- Connecticut
- Delaware
- Maryland
- Virginia
- Florida
- Indiana
- Michigan (going into effect early 2024)
- Illinois
- Minnesota (going into effect early 2024)
- New Mexico
- Colorado
- Nevada
- Hawaii
- California
- Oregon
- Washington
Maine does not have a red flag law in place. But it does have a yellow flag law. Here’s what that means.
How Maine’s yellow flag law is different from red flag laws
In 2019, Maine passed a “yellow flag law,” which is essentially a diluted version of a red flag law.
Under the yellow flag law, a family member who’s concerned that an individual is a threat to themselves or to others must first alert a law enforcement authority. That authority will then take the individual into protective custody, where they would be evaluated by a medical professional. This step of medical evaluation is not included with red flag laws, and adds another round of bureaucratic tape to the process. If the medical diagnosis determines this person is a threat, then a court will consider whether or not to take the firearm away from the individual in question.
“This is a bit arduous,” Nick Suplina, the senior vice president for law and policy at Everytown for Gun Safety, told NBC News. “It’s not fast, and it’s not easy. The Maine law is unduly narrow. It’s difficult to administer, and for that reason, it’s not an effective way to stop mass shootings.”
So how did the yellow flag law function (or not function) in regard to the accused Lewiston mass shooter?
Over the summer, his family did reach out to law enforcement with concerns about his mental health, they say. Specifically, they spoke to the authorities in New York state, where the accused was stationed at an Army Reserve base. The individual was then placed in a psychiatric treatment facility for two weeks — but because all of this took place in another state, Suplina said to NBC News, it likely didn’t trigger the chain reaction of Maine’s yellow flag law.
With that said, Maine authorities have not confirmed details surrounding the exchange of information between the two state authorities. “I’m not gonna talk about who knew what and when,” Michael Sauschuck, the commissioner of the Maine Department of Public Safety, recently said.
Still, critics are saying even a less restrictive measure like Maine’s yellow flag law should have been enough to prevent the Lewiston tragedy from taking place.
“Based upon what I know, [the shooter] had foreseeable and discernible psychiatric issues a few months ago,” Michael Carpenter, a former Maine attorney general, told Maine Public Radio. “I think this [yellow flag] law was absolutely designed for this kind of a situation.”
U.S. Senator Susan Collins has also communicated concerns over a perceived failure of gun safety protocol in her state. “If in fact the suspect was hospitalized for two weeks for mental illness, that should have triggered the yellow flag law and he should have been separated from his weapons,” she said last week.
Are gun safety measures like red and yellow flag laws actually effective?
Given what took place with the accused Lewiston shooter, it’s easy to speculate any number of loopholes in these red and yellow flag laws, especially since people frequently buy firearms in one state and travel to another. So how effective are these laws, actually?
It depends on what metric you use to measure success. For example, in New York State, following the implementation of a red flag law, authorities said they issued around 1,000 orders of firearms removal and then doubled that number of orders in 2022 after expanding the usage of the red flag law. (The expansion essentially called for the Attorney General’s office to add staff positions to aid officers in attaining these restriction orders.)
It’s impossible to say how many of those issued orders were successful in preventing violence. You can only measure violent acts that actually take place, not the possibility of violence based on what could have happened if you didn’t act. This reality is the foundational challenge of gun safety laws: It’s so much harder to prove their efficacy than to argue for the need for them.
One highly imperfect way to try to measure efficacy would be to look at overall gun violence rates. For example, in New York State, the frequency of shooting reports has decreased significantly in the last two decades. But that statistic isn’t directly connected to the implementation of red flag laws, and at best can be correlated loosely.
It also depends on what type of harm an individual is suspected to pose: harm to themselves, or harm to others. Per the Violence Prevention Research Program at UC Davis Health, data shows that these red flag protection orders are extremely effective in preventing suicides. Their best estimate says that for every 10-20 firearm removal orders issued, at least one suicide is prevented.
But when it comes to mass shootings, it’s much less clear. This is because of a few factors: Not only are mass shootings rarer than suicides, but since states tend to have different versions of red flag laws, and since each state has its own legal cocktail of other varying gun safety measures in place, it’s near impossible to measure the success of a red flag law in preventing a mass shooting from taking place.
There’s also a crucial point to include, here: this is just one gun safety measure amid so many other legal measures a state (or federal body) can take to reduce gun violence. Beyond that, researchers encourage people to remember that “informal intervention” is always a step a person can consider taking, in addition to the formal interventions allowed by these laws.
“Legislated means aren’t the only means to help reduce people’s risk,” Aaron Kivisto, a psychologist at the University of Indianapolis, told NPR. “[There are] family members or close friends in the community who might store the gun during a time of crisis… Law enforcement doesn’t need to be involved in every case to have the same general outcome of separating somebody from a firearm.”
