Red Flags: Taking Guns from the Mentally Ill

A surprising amount of common ground underlies the positions of opposing stakeholders on proposed legislation that would create an “Extreme Risk Protection Order” (ERPO) (“red flag”) law, but the devil is in the details.

A bill proposed in the RI General Assembly (House 7688 and Senate 2492) would allow family members and law enforcement to petition the Superior Court to search for and seize weapons from a person (“respondent”) “if the court finds by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to self or others…” after considering a list of factors, including acts or threats of violence within the past 12 months, mental health and criminal history, abuse of controlled substances or alcohol, “unlawful, threatening or reckless use or brandishing of a firearm” and “recent acquisition of firearms.”

The ERPO legislation was initially suggested by the RI Police Chiefs’ Association, as explained by executive director (and former Little Compton Police chief) Sid Wordell and board member Edward Mello, Jamestown Police chief, in an appearance on the Dan Yorke show.

The main objection to the proposed ERPO bill is that it requires only a general finding by the court that someone might pose a danger without requiring any finding of either imminence or mental disability, and critics including the RI chapter of the American Civil Liberties Union (ACLU) and RI Second Amendment Coalition have objected that an order could be issued based upon entirely lawful conduct, including free speech. “The terms of the bill are so broad that police could use these protective orders to go after people who simply engage in overblown political rhetoric in social media,” Steve Brown, executive director of the ACLU, told Motif.

Wordell of the Police Chiefs’ Association defended the breadth of the proposed statute, “Somebody’s constitutional right protection to speak about violence does not outweigh the safety of the community as a whole… People have the right to say certain things, people have the right to do certain things, but … the public’s right and safety has to be considered in that, and there’s a point where that outweighs an individual’s right.”

Frank Saccoccio, president of the RI Second Amendment Coalition, cited as an example of entirely lawful conduct being interpreted as suspicious “recent acquisition of firearms.” Saccoccio told Motif, “I have a concern where somebody could go out and buy one or two firearms, and a police officer could look at that and say, ‘I think they’re buying too many firearms,’ and search and take all of them.”

Another objection is to the provision requiring notice to everyone “who may be at risk of violence.” If someone swore out a false affidavit claiming, “My ex-boyfriend said he is going to shoot up his school/workplace,” it would trigger the mandatory notification process, destroying someone’s reputation and likely causing them to be expelled/fired. “What that could potentially mean is that hundreds of people are notified that this person may be a danger before a court has even had a chance to consider the petition,” Brown said.

Because the ERPO process occurs in civil rather than criminal court, a respondent would have no right to a public defender and even then would have to spend thousands of dollars to hire a private attorney. “There are potentially significant ramifications that apply to an individual if an order is issued against them beyond merely the confiscation of their firearms. They can be subjected to a mandatory mental health evaluation, they may face separate criminal charges based on anything they say at this hearing… When you put all that together, we think there’s a strong case to be made for the state to appoint counsel to individuals at these hearings,” Brown said.

Current RI law (§ 40.1-5) allows emergency commitment of any person who “is in need of immediate care and treatment, and is one whose continued unsupervised presence in the community would create an imminent likelihood of serious harm by reason of mental disability.” Wordell of the Police Chiefs’ Association said, “I think this [ERPO] law complements that in the sense that, the main piece of this is to not allow that person to have weapons.” But Brown of the ACLU said, “To some extent one could argue that the bill serves as an end run around some of the important due process protections that are in place for individuals who might be subject to civil commitment … it does give a court the power to mandate a mental health evaluation of any person brought before them under one of these orders, and if the person for whatever reason refuses to have an evaluation done, they could be held in contempt of court and jailed…”

Despite significant differences, all parties expressed support for the basic goal of keeping firearms out of the hands of people who pose an imminent risk of harm to others due to mental illness.

The Police Chiefs’ Association did not craft the bill and is not wedded to any specific language in the proposal, Wordell said. “We are absolutely willing to work with all stakeholders to come up with what the best legislation would be…”

“We think the bill ought to be focused on what most people are talking about, which is people who present a real threat to many people. This is arising in the context of Parkland and Las Vegas, and to the extent that it tries to cover a lot more ground, that’s where the problems of overbreadth arise,” Brown said.

Saccoccio said, “What I’m hoping for is that instead of them trying to jam legislation through that’s not ready yet, I really wish the legislature would sit down, do a study commission, get some real professionals in there so that if we put something forward, everybody could say this is a good piece of legislation… We’d like to see real legislation that actually works and still protects people’s Second Amendment rights. There has to be a way to put a balance in there.”