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Red-Flag Laws Show the Limits of the Legal System

Judges can remove guns but can’t require mental-health evaluations or treatment.

Key points

  • Red flag laws make it possible for certain individuals to petition the court to remove someone’s firearm temporarily.
  • Yet, under red flag laws, a court cannot compel subjects of petitions to undergo a mental health evaluation.
  • Ignoring these limitations will not bring us closer to providing help to individuals experiencing mental health crises.
Everything Possible/Shutterstock
Source: Everything Possible/Shutterstock

As newly signed federal legislation seeks to urge more states to implement red flag laws, questions have arisen around their somewhat limited effectiveness.

Specifically, mass shootings in states that have already enacted such laws illustrate they’re not foolproof safety measures even though they represent steps in the right direction.

The public largely recognizes this challenge, but our citizenry and policymakers must understand the reasons why the issue is so difficult to fix.

Red flag laws make it possible for certain individuals–family members, police officers, and/or physicians, depending on the state–to petition the court to remove someone’s firearm temporarily. It doesn’t matter if the individual hasn’t yet violated any law.

Suppose a judge is persuaded by the evidence presented and determines that the person does pose a danger to himself or others. In that case, the weapon is removed, and the person is legally prevented from purchasing another. Nothing further is required of the individual in question. He is free to go about his life, often replete with mental health issues and/or legal challenges. Also, he may eventually get the weapon back.

As a mental health attorney, I see the limitations of these kinds of stop-gap measures every day. While better than no such laws, these do not offer adequate protection to the public or help the individual in crisis.

Ideally, a judge presented with a red flag petition should have the authority to require key steps toward stabilization and recovery–for example, to mandate that the person undergo a mental health evaluation and comply with prescribed mental health treatment. Unfortunately, the court has no power to compel subjects of petitions because they are civil, not criminal proceedings, and the individuals haven’t violated any laws.

This is the crux of the challenge. While our criminal justice system utilizes diversion courts (i.e., drug courts, family courts, mental health courts, etc.), most are voluntary. Individuals facing incarceration consent to be diverted to these courts because they offer better alternatives than prison–for example, sobriety, family reunification, and mandated treatment.

But if individuals do not comply with the diversion court’s requirements–for example, undergoing mental health or drug treatment–they can be remanded back to criminal court and possibly jail. The leverage these courts have over individuals violating the law makes them effective and beneficial.

Alternatively, red flag laws are specifically designed to allow for intervention before a person has violated a law. While these preventive, proactive measures could be crucial to stemming today’s wave of mass shootings, they don’t give the court system leverage to help those with mental health issues and their families access meaningful intervention and treatment.

This all serves to illustrate the importance of making measures like red flag laws more effective, recognizing they don’t neatly fit the framework of our current legal model.

In my opinion, the most direct way to correct this issue is to allow family members of individuals in crisis to consent to mental health courts on their loved one’s behalf after meeting strict criteria. For many, this is a controversial idea as it restricts an individual’s personal freedoms, though too many champions of these freedoms in their purest form fail to understand the harsh day-to-day realities for individuals and families struggling with serious mental health challenges.

Mental health conditions can impede individuals’ self-awareness and overall sense of reality. Symptoms like paranoid thoughts and delusional beliefs can create feelings of extreme distrust and hostility toward those who only wish to help them get better and live independent lives.

Ignoring these limitations will not bring us closer to providing real help to individuals experiencing mental health crises, just like it won’t help to ignore the limitations of our current legal framework. Preventing senseless acts of violence requires us all to commit to thinking more broadly.

It is time to call this what it is: senseless violence and death due to our inability to identify warning signs in actions and behaviors. It is wishful thinking to believe more red flag laws will serve as the sole preventive and proactive answer to curbing mass shootings. They are a start, but only that.

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