In the recent flurry of mass shootings, one could almost forget the massacre that claimed nine lives at a FedEx facility in Indianapolis. Months earlier, police confiscated the shooter’s shotgun and transported him to hospital for an emergency psychiatric evaluation. What has garnered a great deal of continuing attention is the fact that the prosecutor did not initiate a so-call “red flag” process which could have prevented the shooter from later purchasing the guns used in the mass shooting.
Some might conclude that this shows red flag laws don’t work, but what this tragedy actually shows is that red flag laws — like any particular gun regulation — have limitations. One Indiana state court judge has already moved to close loopholes, now requiring that red flag petitions by law enforcement skip the prosecutor’s office and go straight to the court. In addition, legislative efforts are underway to prevent people under investigation from purchasing more guns.
These are sensible steps, but we can do even better to supplement and improve red flag laws to prevent more mass shootings.
It is particularly important to consider these issues now as red flag laws are near the top of the agenda not just in Indiana but in Congress and the executive branch. The Senate Judiciary committee recently held a red flag hearing, and the Biden administration has promised to issue a model red flag law for states.
First, anyone who is subject to an emergency psychiatric hold for suicidal or other violent thoughts should automatically lose their ability to purchase firearms for a set period of time, say six months. A couple dozen states, but not Indiana, already have such laws on the books. They have been shown to be effective. Limiting the ability of people who have been placed in psychiatric care to purchase guns provides the public some protection and gives the police and prosecutors time to pursue a more permanent red flag order if they feel doing so is appropriate.
Second, red flag laws in numerous states do not require immediate reporting to the federal background check system of successful petitions. In some states, there is no provision for federal reporting. In other states, like Indiana, reporting is up to the discretion of the judge. Reporting should be mandatory. Because it isn’t, someone like the Indianapolis shooter might have been able to purchase more firearms even if a red flag gun removal had been ordered. This obvious and dangerous loophole must be closed.
Third, every state should have a mechanism to remove firearms not just from red flag respondents but from anyone unlawfully possessing a firearm. Millions of Americans illegally possess firearms. Some are convicted felons, some use illegal drugs, some are fugitives from justice. One of the most dangerous categories of prohibited possessors is persons with a history of domestic violence, accounting for as many as 60 percent of mass shootings.
There are no currently existing federal programs that identify and retrieve illegally possessed firearms. Most states rely on a kind of honor system, where, for example, convicted felons are expected to voluntarily relinquish any firearms.
Consider the harrowing example of Courtney Irby. On June 14, 2019, Joseph Irby was arrested and jailed on domestic violence charges for allegedly trying to hit his estranged wife, Courtney, with a car. Courtney obtained a restraining order against her husband, but she reported to the Lakeland Police that she was still “in fear for her life” because her husband owned two guns and she believed “he wasn’t going to turn them in.” The next day, Courtney allegedly went to her husband’s home, took his guns and brought them to the Lakeland Police Department. The police department caused a national stir when they responded by arresting Courtney Irby for stealing her husband’s property. She was initially charged with two counts of grand theft and one count of armed burglary, which was later reduced to misdemeanor trespassing… and spent six days in jail on those charges.
Police unwillingness to confiscate illegal firearms is all too common. We have proposed an “Unlawful Possession” process parallel to red flag laws that could be anonymous and non-punitive. It would harness information from private citizens about who is in unlawful possession of firearms. Importantly, the process could result in firearm removal without criminal prosecution. A domestic partner like Courtney could have reported her husband to protect herself and, in the process, reduced the risk of a mass shooting.
The steady stream of recent mass shootings can create a sense of hopelessness and inevitability. It is essential to pull the right lessons out of the rapid current. As long as there are hundreds of millions of firearms in America, we will not end mass shootings, but smart public policy can reduce them.
Ian Ayres is a professor and deputy dean of Yale Law School. Fredrick Vars is a professor at University of Alabama Law School. They are the authors of “Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.”