‘Red flag’ laws will hurt red states that support Trump

Extreme risk protection orders (ERPOs), colloquially known as “red flag” laws, aim to disarm potential mass shooters before they carry out their deadly crimes. Following recent attacks in Texas and Ohio, adopting a federal red flag statute has attracted supporters from both parties, including Sens. Diane Feinstein (D-Calif.) and Lindsey Graham (R-S.C.). It seems like an easy win. Who would oppose keeping firearms away from those suffering from homicidal ideation?

Yet lost in the clamor for stricter gun control are the unintended consequences of red flag laws. Already enacted in 17 states (all but two of which voted for Hillary Clinton during the 2016 presidential election), the primary petitioner in each state apart from Vermont is law enforcement. Most states also allow family members to initiate an ERPO; Hawaii even allows a co-worker to petition.

In the same vein, Feinstein has proposed a bill mandating that law enforcement must be included as a petitioner, and states are free to add other entities to the list.

Police officers do an excellent job of protecting citizens when called upon, but their track record as arbiters of constitutional law is less than stellar (see civil forfeiture). Further, empowering police to punish “would-be criminals” in a Minority Report-esque fashion should raise red flags of its own. 

In August, journalist Stephen Gutowski drew attention to a case in Philadelphia where NBC News reported that police had seized a “massive arsenal” including “multiple grenades” from a suicidal man. In reality, the 39 guns and inert grenades belonged to an elderly hobbyist who had been building his collection since youth. Despite committing no crime, nor making any homicidal threats, he now faces the prospect of seeing that collection destroyed while being villainized as a dangerous criminal. While Pennsylvania has yet to enact a red flag law, we can expect to see an upswing in such cases should a federal law pass. 

Worse, red flag laws, including Feinstein’s bill, allow judges to issue ERPOs ex parte, meaning the victim is not notified nor do they have any judicial recourse to prevent the initial seizure of their firearms. In Maryland, where approximately 40 petitions are granted each month, Anne Arundel police conducted a pre-dawn ERPO raid on 60-year-old man at the home he shared with his sibling’s family. Police say a scuffle ensued when he grasped a gun lying next to the door, resulting in Gary Willis being shot dead in his own doorway.

Finally, Feinstein’s bill would punish red states because of how our federalist system works. Since the federal government is constitutionally prohibited from enacting criminal law, apart from unique cases such as piracy on the high seas, Feinstein’s bill would force states to comply by withholding grant funding from states that refuse:

“For each of the fiscal years 2020 through 2024, the attorney general shall give affirmative preference in awarding any discretionary grant by the Bureau of Justice Assistance to a state or Indian tribe that has enacted legislation described in Section 4.”

In simple terms, police departments in blue states will receive priority consideration for $435 million in federal funding, and red states that supported President Trump will suffer.

Even setting aside these constitutional and political concerns, are these weapon seizures, based on “pre-crime” reports from police, roommates and co-workers, worth the price?

You might be inclined to answer “yes” based on the public outrage over mass shooters. Last year, Pew Research found that 57 percent of teens worry about shootings at their schools. In August, a Harris Poll found that 79 percent of adults experienced some stress about mass shootings and one-third actively avoid places they fear are vulnerable to shooters.

But there is a monumental disconnect between media-driven public perception and reality. While studies have found that mass shootings have increased since the 20th century, only 51 deaths are attributed to such crimes each year. In comparison, 243 people are struck by lightning in the U.S., and 102 people die each day in car accidents.

That’s not to say mass shootings should be ignored. After all, public education is credited with reducing lightning deaths. But red flag laws, which suffer from dubious efficacy, are not the path forward. Instead, we should focus on research-backed approaches. 

For example, we must confront the uncomfortable reality that media coverage of mass shootings may lead to more mass shootings. Each shooter receives an estimated $75 million in earned media, which the Los Angeles Times has dubbed an “incentive to perform.” This coverage only amplifies the contagion effect, which results in more mass shootings in the 13 days following a mass shooting. Likewise, Columbia Journalism Review has called for a media reckoning to avoid “further contributing to the uniquely American crisis of mass killings.”

Let’s begin by changing what we know contributes to mass shootings before resorting to dystopian pre-crime prosecution strategies that trample the constitutional rights of our fellow Americans.

Jason S. Johnson is the owner of J2 Strategies, a political consulting and public affairs firm in Texas. He was the chief adviser to Sen. Ted Cruz (R-Texas) on his two Senate races and his presidential run, and is the former chief of staff to Texas Gov. Greg Abbott. Follow him on Twitter @JasonSJohnson.