The UC Davis Medical School this week released a report on the state’s new “red flag” law aimed at seizing guns from dangerous persons, saying the data “suggest that this urgent, individualized intervention can play a role in efforts to prevent mass shooting.”
The lead author of the law, passed in 2014 and effectuated in 2016, immediately proclaimed it a success. “The UC Davis study shows the importance of having a tool to get guns out of the hands of dangerous people before it’s too late,” Sen. Nancy Skinner, a Democrat from Berkeley, said in a statement.
California’s red flag law was signed by then-Gov. Jerry Brown four months after a disturbed man killed six UC Santa Barbara students and wounded 13 others. The family of gunman Elliot Rodger had complained to authorities about his strange behavior before the shootings, but nothing was done to prevent it.
Skinner’s Senate Bill 1014 allows family members or law enforcement authorities to seek court orders to seize weapons of those thought to be contemplating suicide or violence toward others.
The UC Davis team pored over documents of 159 seizure orders and identified 21 cases it deemed to represent potential mass killings averted.
There’s Been Some Movement Toward a National Red Flag Law
After their weapons were confiscated, none of the 21 subjects committed a violent crime, leading the researchers to suggest that seizure saved lives, but with a caveat: “It is impossible to know whether violence would have occurred had (orders) not been issued, and the authors make no claim of a causal relationship.”
Other states have adopted their versions of red flag laws and it’s entered the perpetual nationwide debate over whether firearms restrictions would prevent the sort of mass killings that have, tragically, occurred with some regularity of late.
There’s been some movement toward a national red flag law and some have suggested expanding the authority to initiate seizure orders to just about everyone.
At first blush, confiscating weapons from those suspected of harboring homicidal or suicidal intentions makes sense, but there are three troublesome aspects.
It’s a Crime for Someone to File a Seizure Petition With False Information
—First, even though red flag seizures are civil proceedings, not criminal ones (unless the subject fails to comply), they are tantamount, in societal terms, to convicting someone of a crime without criminal law safeguards, imposing an onus that the subject will bear for the rest of his or her life.
The California law says anyone seeking a seizure order “has the burden of proving by clear and convincing evidence that there is a substantial likelihood that the person poses a significant danger of personal injury to himself/herself or others,” but a judge makes the decision, not a jury, and the burden of proof is less than it would be in a criminal case.
—Potentially breaching constitutional rights, such as those to bear arms, have due process and have charges decided by juries, and should be done very, very carefully.
Broadening the list of those allowed to initiate cases could empower hostile neighbors, estranged spouses and gunophobic busybodies to harass gun owners, forcing them to hire lawyers to defend themselves. It’s not at all uncommon for protective orders to be sought in nasty divorce cases as a legal tactic.
It’s a crime for someone to file a seizure petition with false information or the intent to harass, but good luck on making that case.
—Finally, we really don’t know, and perhaps can never know, whether red flag seizures actually prevent suicides and murders. The UC Davis report’s very cautious “no claim of a causal relationship” should be weighed carefully before such laws are expanded.
CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary