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The idea has emerged during talks over possible bipartisan gun legislation following the deadly Uvalde, Texas school shooting. The laws provide a way to temporarily block people seen as posing violent threats from accessing firearms.
Negotiations in Congress over possible bipartisan gun legislation in the wake of the Uvalde, Texas school shooting, which left 19 children and two teachers dead, are still in the early stages. But it appears that a key option under discussion would involve the federal government encouraging states to adopt so-called red flag laws that provide a way for authorities to temporarily seize guns from people considered to be dangerous to themselves or others.
Any proposal that can get enough support to have a chance of passing the equally-split Senate would attempt to use new federal grants to incentivize states to enact red flag legislation, a spokesman for U.S. Sen. Lindsey Graham, a South Carolina Republican who is one of the lawmakers taking part in the talks, told Route Fifty on Friday.
Graham and Sen. Richard Blumenthal, a Connecticut Democrat, unsuccessfully backed a similar proposal in 2019. The idea of pushing states to take up red flag legislation stands in contrast to the possibility of establishing a similar federal law that would apply nationwide.
It’s uncertain how many states would actually embrace the laws even if offered federal grant dollars to do so. Already, one Republican governor, Mike DeWine of Ohio, tells Route Fifty he has concerns about making it easier to take guns away from people.
To date, only 19 states have adopted red flag or “extreme risk” laws, according to Everytown for Gun Safety. The District of Columbia also has a red flag law on the books. Texas, a gun rights stronghold, does not have a red flag law. New York, where a racist shooting on May 14 at a Buffalo grocery store left 10 people dead, does have one.
Sen. Chris Murphy, a Connecticut Democrat and another key player in the gun legislation talks, has indicated that he favors leaving red flag laws to the states, as opposed to taking a national approach under federal law. “I think the red flag laws are better administered at the state level,” he told reporters before senators left town for the Memorial Day weekend,
“I have no problem incentivizing state red flag laws,” Murphy added. Murphy, who once represented the area that includes Sandy Hook Elementary School, the scene of a 2012 mass shooting that claimed 26 lives, suggested that using grants to push states towards adopting the laws would be necessary because red flag systems aren't inexpensive to implement.
GOP State Leaders Resistant to New Gun Laws
While encouraging states to adopt red flag laws is seen as one of the more promising proposals on Capitol Hill, the laws have in the past attracted opposition from the gun lobby and there are signs of skepticism from some Republican state leaders.
DeWine, the Ohio governor, “generally does not support red flag laws” because of concerns about violating the due process rights of those who have their guns seized, his spokesman Dan Tierney said. The due process aspects of the laws have sparked debate previously. But advocates for the laws contend that they are legally sound and can withstand constitutional challenges on this front.
Tierney said DeWine does support enhancing "pink slip" laws, which allow doctors, mental health professionals or law enforcement officers to push for the court system to involuntarily commit a person to a psychiatric facility for being a danger to themselves or to others.
Federal incentives for states to pass red flag laws could fall flat with other governors as well.
Spokespeople for Texas Republican Gov. Greg Abbott did not respond to a press inquiry. But Abbott has so far rejected calls for stricter gun laws in the wake of the shooting at the elementary school in his state, while pointing to gun violence in states with tighter restrictions.
“There are more people shot every weekend in Chicago than there are in schools in Texas,” Abbott said last week. “We need to realize that people who think, ‘Well, maybe if we implement tougher gun laws, it’s going to solve it,’ Chicago, L.A. and New York disprove that thesis.”
In a video message delivered to the National Rifle Association’s convention over the weekend, Abbott reiterated his opposition to tougher gun laws. “There are thousands of laws on the books across the country that limit the owning or using of firearms, laws that have not stopped madmen from carrying out evil acts on innocent people in peaceful communities,” Abbott said.
Another GOP governor, South Dakota’s Kristi Noem, also appeared before the NRA, urging attendees to oppose further gun regulations. "There are so many people out there who are counting on us to help them defend their right, so don't back down," Noem said, according to the Sioux Falls Argus Leader. "Now is not the time to quit.”
Negotiations in Congress Still Taking Shape
It’s possible that a gun legislation deal in Congress could feature other proposals as well, including enhanced background checks.
But past efforts on background checks haven’t succeeded. A bipartisan plan from about a decade ago by Republican Sen. Pat Toomey of Pennsylvania and West Virginia Democrat Sen. Joe Manchin of West Virginia, would have expanded background check requirements to gun shows and internet sales. It did not gain enough support to pass.
Leaders of the U.S. Conference of Mayors, including its president, Miami Mayor Francis Suarez, a Republican, on Friday called for an even stronger expansion of background checks. The mayors endorsed two proposals that failed previously and are unlikely to be included in any forthcoming bipartisan compromise—The Bipartisan Background Checks Act and the Enhanced Background Checks Act.
One of those bills, proposed after the Sandy Hook shooting, would require background checks for all gun sales. The other would close a loophole that allows gun sales to proceed if a background check isn’t completed in three days.
“We refuse to allow the passage of time to relieve the pressure on Congress to act. Unless our elected officials in Washington finally take this crisis seriously, this plague will soon hit another American city and more precious lives will be lost,” the mayors group said.
It remains questionable whether the Senate will be able to reach any viable deal.
Murphy told reporters he’s hopeful senators on both sides of the aisle will be able to find agreement amid the horror of the Uvalde shooting and as Republican Senate Minority Leader Mitch McConnell, of Kentucky, has said he has instructed Sen. John Cornyn, a Texas Republican, to see if he can work out an agreement with Democrats.
“I'm hopeful there's growing momentum. But I have had that fail plenty of times before,” Murphy, a longtime proponent of stronger gun regulations, told reporters.
Cornyn indicated this week that he would discuss red flag laws with Murphy.
Red Flag Laws Currently in Place
There are differences between the red flag laws that states have already enacted. And it's unclear how prescriptive Congress could be about how they're designed in any proposal it might pass.
Thirteen states and the District of Columbia allow a family or household member, as well as law enforcement, to petition a court to have a weapon seized, according to the Giffords Law Center. Five others—Florida, New Mexico, Rhode Island, Vermont and Virginia—only allow law enforcement or a state official to petition for the temporary confiscation. The remaining state, Indiana, has a somewhat different “risk-based” firearm removal law, the law center notes.
Some states also allow broader subsets of people to file petitions in addition to law enforcement and family or household members. For example, California allows petitions from employers, coworkers, and certain school personnel and Hawaii allows petitions from medical professionals, educators and coworkers.
In general, red flag laws require petitioners to present a civil court judge with evidence to show that a person is enough of a threat to themselves or others that they should not have access to guns. If a judge decides this threshold is met, they can issue an order that, for a set period of time, requires the person to surrender their guns and blocks them from buying firearms.
Everytown for Gun Safety notes that, of the states that have red flag laws, 14 of them and D.C. passed their legislation after the 2018 school shooting in Parkland, Florida where a gunman killed 17 people. Everytown says that, since the Florida shooting, there have been at least 15,091 petitions filed under state extreme risk laws.
Blumenthal and Graham proposed a bill in 2018 that would have allowed law enforcement officers and family members nationwide to file petitions in federal court requesting an order that would block a person from purchasing or possessing a firearm.
Blumenthal told CNN at the time that a national approach was necessary. “Guns and shooters cross borders,” he said. “There’s nothing to prevent them from going from one state to another. That’s why a federal solution is important.” The idea, however, failed to get through Congress.
Kery Murakami is a senior reporter for Route Fifty.