Time to red-flag the Red Flag Gun Bill

Hardly any state bills this year are as likely to increase racial and other discrimination as the awful Red Flag Gun Bill (H7688 and S2492), which is scheduled for a public hearing today.  The bill claims to be about removing guns from people who pose an “extreme risk” of violence. However, it’s so badly written that it will help to produce a society where gun ownership is largely for the privileged, while people of color and other vulnerable people will have their guns forcibly taken away in police raids, even if they could handle guns just as safely as privileged people do.  Most progressives who I talk to oppose the bill for this reason.

Let’s take a look at what the bill does, because it is very poorly designed and is not anything like an overall solution to gun violence problems.  The bill sets up a process for declaring someone an “extreme risk” for owning a gun, although that’s a misleading term since all risks in this bill are labeled as “extreme”.  In actuality, the bill is designed to remove guns from people who are not any kind of risk to others and aren’t even an “extreme risk” to themselves.

The process starts when the police, a relative, a roommate, or a politician (the Attorney General) files a request in court arguing, not that someone is an extreme risk, but only that there’s a significant danger that the person will use guns to injure or hurt themselves or others.  The person who files the request may be right or may be wrong, of course, but they don’t have to have solid evidence backing what they say — they just have to give the reasons why they think so.  The alleged gun owner is then served with an order to appear in court for a hearing to take place, say, a week from Friday at 10am. If they’re able to show up then, they can defend their case when the judge speaks to witnesses. The judge questions the alleged gun owner and/or the people on the other side, and may order the alleged gun owner to pay for a drug test or a mental health evaluation.  Then the judge makes a decision.  You may have heard that when you’re brought into court you’re presumed innocent, and prosecutors have to prove their case beyond a reasonable doubt.  But this bill doesn’t work that way. Judges are told to remove the person’s guns even if the accusers can’t prove beyond a reasonable doubt that the person is dangerous; all that’s needed is whatever the judge sees as clear, convincing evidence that the person has some kind of significant chance of harming themselves or others.

If we could trust the court system to be fair and wise in dealing with people alleged to be dangerous, maybe a procedure like this would work. Police would hear that someone is dangerous, then thoughtfully submit a request to the court, and the judge would make a wise decision.  But that’s not the reality. Many police and many judges treat white people better than people of color, treat people with mental illness as dangerous potential criminals, are prejudiced against marijuana users, have political biases, and don’t like any sign of rebelliousness.  If you can afford a lawyer and have what the court system considers a respectable job, you’ll do better in court than someone else.  And unfortunately, the bill has many features that cater to these kinds of prejudices.

How is the judge supposed to make a decision that someone is dangerous to others, or maybe just dangerous to themselves?  You might think that it would be based on things like threats, violent actions, brandishing guns, etc.  And the bill does say that the judge should consider these kinds of violent actions or threats, as well as whether the alleged gun owner has spoken about possibly harming themselves.  But unfortunately the bill goes a lot further. Under this bill, the judge is supposed to treat the broad category of “mental health history” as one of the “red flags” that might justify removing guns.  Similarly, any evidence of abuse of drugs or alcohol counts as a potential “red flag” too.  Among the other “red flags” are any past arrests and any recent purchase of a gun. Nor is that all — the judge is free to consider any other kind of claim that the judge considers a relevant “red flag”.  What this means is the court system basically has a pretty free rein to follow its typical prejudices.  If you’ve ever seen a psychologist, if you use medical marijuana, if you’ve been arrested but not convicted, if you’ve said something that sounds like you might harm yourself, or just if the judge is persuaded to see you as a dangerous character for some other reason, all of that can lead to you being labeled an “extreme risk” under this bill.  If you’re black, of course, judges are likely to see some of these minor issues as signs that you can’t be allowed to have a gun, in a way that they wouldn’t do when the gun owner is white.

And the ACLU points out that some judges would likely consider people’s “political rhetoric” as helping to show that they’re dangerous.  This is the kind of measure that is well-suited to targeting political groups and opinions that the establishment considers dangerous, especially since a top politician (the Attorney General) is allowed to file requests for these court orders against as many people as the AG wants. I don’t think that would happen right away, but in future, if high-ranking people in government get the jitters about some political group or set of views, this bill could get used against the targeted group.

The Rhode Island Chiefs of Police have been very vocal in publicly backing this bill.  Their statement makes clear that for them, it’s about giving police the ability to go into court and ask for someone’s guns to be taken away.  Although a relative or a roommate would also be able to file this kind of court request directly, I think the Chiefs of Police are right that the police would often be initiating things.  Of course, police know better than almost anyone how judges work and what kind of things a judge would find convincing; and most judges have a tendency to believe the police more than a civilian.  The alleged gun owner does get a right to defend themselves at the hearing, but he or she wouldn’t have a right to a lawyer.  You can only bring a lawyer if you can afford one (and even then, of course, only if the lawyer you want is able to come in for the hearing, which might be on short notice).

Ironically, though the bill claims to be about reducing danger, many of its features make situations more dangerous instead.  One big source of danger in the bill, which I haven’t mentioned yet, is the fact that it encourages a judge to order seizure of guns before the alleged gun owner is even notified of anything. So police descend on a person’s house, to ransack it looking for guns, even when the residents had no previous idea that a court order might be in the works.  Here’s how that happens.  When the police or someone else files a court request alleging that a person is a gun owner who’s dangerous to others or themselves, they have the option of arguing to the judge that the danger is “imminent”.  If they do, the judge doesn’t notify the alleged gun owner of anything and doesn’t even allow the alleged gun owner to defend their side to start out with.  Instead, if the judge agrees that the danger is “imminent” (without yet having had a chance to hear from the alleged gun owner), the judge issues a temporary “extreme risk” order and police go to the house to take away the guns.  Needless to say, that won’t be gentle.

Police raids on the house of an innocent, unsuspecting person often lead to injury or death of the person or their family.  The practice of “SWATting”, where someone maliciously places an anonymous phone call sending a police SWAT team to an innocent person’s house, has so often led to fatal results that there’s been a bill in the General Assembly this year about trying to prosecute the anonymous callers who do this.  But that only illustrates how likely police raids are to produce danger and terrible consequences. Needless to say, the police themselves practically never face any penalty for being too aggressive in raids.  Police do sometimes use excessive force, more so when they think there is more danger, since they place a high priority on keeping themselves safe against any conceivable threat. And when they have been told — by a judge, no less — that someone is an “extreme risk” and they have to take the guns away, it brings out their more aggressive side.  At best, the police will simply turn the place upside down looking for guns that may or may not be there.  But at times, there will be casualties of the innocent, especially since the residents have no way of knowing in advance that the police are coming.  It’s just one illustration of why you shouldn’t label someone an “extreme risk” when, as in this bill, there’s little evidence of danger.  And under this bill, these aggressive police raids can happen even when the initial request to the court didn’t call someone an imminent threat, if the police or the judge believe there are more guns that haven’t been turned in yet.

A further source of danger in this bill is the way it deals with mental illness.  The bill says that if someone is alleged to be a gun owner who might be a significant danger to themselves, even if no one in court thinks the person might be dangerous to anyone else, they get treated according to the same “extreme risk” process as people who actually are alleged to be dangerous to others.  So the bill treats the allegedly suicidal just the same way as criminals.  If the police or a relative or roommate or the Attorney General say that you’re an imminent risk of suicide by gun, and the judge agrees for whatever reason, the police raid your house with no warning, seeing you as an “extreme risk” and trying to take any guns they can find.  Needless to say, this kind of raid by agitated, aggressive police is not the best way to deal with mental illness.

In general, judges and police are rarely good at dealing with mental illness in a constructive way.  A judge may order a mental health evaluation to help him decide whether there is a problem, but once the judge decides there is a problem and issues his order, from then on things are treated just the same way as potential criminals are treated.  I don’t think it will spare the suicidal to have police rush in trying to take guns away.  Consider the idea of “suicide by cop”, where the police perceive a civilian as more or less deliberately steering the police into a situation where the civilian will have to be killed.  The notion of “suicide by cop” is something a lot of police accept as a given, and they aren’t great at turning things away from that outcome.  If the police perceive a civilian as suicidal, they may place more of a premium on efficiently carrying out the judge’s orders at the least risk to themselves than on keeping the civilian safe, and the civilian may even be perceived as asking for it.  So the bill will lead to some deaths that way, unless police training is very much improved from what it is now.  The closest thing in the bill to an enlightened approach to mental illness is that the courts are supposed to make a list of “community resources” on mental health, which they may display next to the brochures on how to request an “extreme risk” order.

In many ways this bill exemplifies the worst approach to mental illness — it considers seeing a psychologist as a possible sign of danger to others, it encourages acting way too aggressively toward people deemed suicidal. and it treats suicide risk mainly in terms of grabbing guns away instead of treating the underlying problem.  Even when police do succeed in taking away guns from someone who actually is suicidal, if they do it in an aggressive and traumatic way that doesn’t treat the real problem, the person may just find another way to kill themselves later.

The bill also adds significantly to racial discrimination.  In many neighborhoods where people of color live, it is more or less common for people to own guns, for protection.  Because the bill is so vague, it is likely to lead to judges and police following racial prejudices to some extent, which will lead to these gun removal orders being targeted disproportionately towards people of color rather than towards white people.

There isn’t much accountability under this bill either.  In theory, when someone requests a gun removal order on knowingly false grounds, that’s a crime under this bill, but it’s not likely to be prosecuted.  To penalize someone for filing a false request, prosecutors need to prove beyond a reasonable doubt that they knew it was wrong.  That’s a much tougher standard of proof, and it’s kind of a double standard.  When a judge places someone under a gun removal order based on someone else’s false claims, the judge doesn’t have to feel there’s much proof before issuing the order, but when it comes to penalizing the person who made the false claim, nothing happens unless you can prove beyond a reasonable doubt that they knew it was wrong.  Of course, police who file a false or harassing request to take someone’s guns away are never likely to be prosecuted anyway.  And under this bill, once a judge issues an order to remove your guns, it is normally extended for as long as the original requester wants — if you want to get the order revoked, the burden of proof is on you to show that you’re not a risk to others and to yourself.

I’m a longtime peace advocate, would never consider owning a gun, and have never been part of gun culture, but this bill is a recipe for more discrimination against society’s most vulnerable.  It will do little to stop violence, and in some ways it will produce more.  I would like, in future, to have a society with no guns.  But this bill isn’t a step towards that, even though some may see it that way.  The way it would play out in practice, it would instead be a step towards a society where, more than today, legal gun ownership is largely the preserve of the privileged, and conflicts over guns between police and vulnerable people lead to more deaths of the innocent.  To some extent that’s how things work now, but the bill plays into these faults and makes them worse.

I haven’t touched on the overall debate about whether gun ownership can do good or not.  Certainly there are at least isolated cases where a civilian with a gun manages to prevent something bad from happening, maybe even without having to fire the gun. And I don’t completely discount the idea that, when a segment of the population is armed, the government tends to abuse that group of people less. On the other hand, guns tend to lead to needless aggression and deadly, often unintended consequences. I don’t like the problems that come with private gun ownership.  But I don’t want to ignore the fact that, in some neighborhoods at least, owning a gun has some safety benefits because you can’t trust the police to be on your side when you need protection.  I think some gun control measures make sense in our current situation, but I don’t want to support aggressive gun control unless it’s combined with serious changes to the police etc.  Still, regardless of how you stand on that, this bill is so thoroughly flawed that it will lead to many bad consequences.

Just days ago, a magazine that’s long been hyped as the conservative “voice of reason” departed from its normally pro-gun stance to complain about Florida police offering concealed-carry training, because the police training was being offered at a mosque.  The prejudice is striking – groups like Muslims are quite vulnerable to violence, but in the eyes of some, they’re not entitled to the same right to protect themselves with guns. I expect that a number of people from vulnerable groups will find, if this bill passes, that they aren’t considered entitled to protect themselves with guns the way privileged white people are.  See also here for a progressive case arguing that we should be careful to choose gun-control measures that aren’t racially discriminatory. This Red Flag bill should be stopped, and better gun measures should be passed instead.

The bill is up for a hearing today starting at 4:30 or 5 in the State House.  The House hearing is in Room 101 and the Senate hearing in Room 313.  Other, more sensible gun bills are also being considered at today’s hearings also.

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About Randall Rose 3 Articles
Randall Rose is a Providence activist and a member of Rhode Island Rights.

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