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Virginia's Proposed Red Flag Law is Not the Best Way to Handle Mental Health Problems

The opinions expressed by columnists are their own and do not necessarily represent the views of
Los Angeles Police Department via AP

Everyone wants to stop dangerous people from getting guns. To some the obvious solution is Red Flag laws, which take away the guns of people deemed dangerous to themselves or others. Wednesday’s straight party line vote in Virginia Senate shows that these laws are more controversial than normally understood. 


But the reasons for these differences get little coverage in the media.  As the debate moves to the Virginia House of Delegates, it is important to understand they are so controversial is that there is a much better alternative already in place. 

This alternative is commonly known as Baker Act statutes (Virginia’s is called the “Emergency Custody Orders and Temporary Detention Orders”), and they have been around in all states, most since the early 1970s. They allow police, doctors and family members to have someone typically held in most states and Virginia for a 72-hour mental health examination based upon a simple reasonableness test – little more than a guess or a hunch. 

These laws focus on mental illness, and they require that the individual be evaluated by mental-health-care experts. If a person can’t afford a lawyer, a public defender is provided. While judges can involuntarily commit an individual they believe is a danger to themselves or others, there is a range of options they can take, with the threat that other options can be followed up with involuntary commitment.

However, instead of using these laws, 17 states have now adopted Red Flag laws, with 13 states passing them since the shootings at the high school in Parkland, Fla. While Red Flag laws are often discussed in terms of mental illness and they are most frequently used in connection with concerns about suicide, only one state’s law even mentions mental illness and none of the states requires that a mental-health expert be involved in evaluating the person.


And, unlike Baker Act statutes, these new laws don’t offer safeguards, such as providing a lawyer for individuals who can’t afford one. When faced with legal bills that can easily amount to $10,000 for a hearing, very few think that keeping a gun justifies that cost.

Under these laws, initial confiscations of firearms often require just a “reasonable suspicion,” which is little more than a guess or a hunch. Judges simply have a piece of paper in front of them with the complaint when they are first asked to take away a person’s guns. When hearings occur weeks or a month later, about a third of these initial orders are overturned, but since few have legal representation, the actual error rate is undoubtedly much higher. 

When people really pose a clear danger to themselves or others, confine them to a mental-health facility. Guns are only one way they can do harm, and if they are intent on hurting others or themselves they can find a way. 

Red Flag laws can harm people who need help. Absent such laws, a person contemplating suicide might speak to a friend or family member and be dissuaded from that dire course of action. With the laws, they may fear that speaking out will result in a report to authorities – and their ability to defend themselves or loved ones would be restricted. 


Police officers often experience depression on the job. Would we be better off if they worried that sharing their feelings might mean having their guns taken from them and the loss of their jobs? 

Abuses of targeting people are occurring. In Colorado, whose law just went into effect on January 1st, a mother of a teenage son who was shot and killed by a police officer has moved to have the officer’s guns seized.

Red Flag laws also let the government take firearms away from people arrested but not convicted of crimes. Even simple complaints without arrests have been enough. That is quite a change in people’s constitutional rights, and don’t be surprised if courts eventually strike down such provisions. Gun-control advocates have resisted making this change explicit in the laws, presumably out of fear that it would create problems in the courts. Also, courts frequently take into account other factors such as gender and age in predicting the chances someone will commit a crime or commit suicide.

Despite all the costs, the evidence shows no benefits from Red Flag laws. Looking at data from 1970 through 2017, these laws haven’t reduced rates of murder, suicide, mass public shootings, robbery, aggravated assault, or burglary. Lives weren’t saved.


Given the civil rights protections that are built into Baker Act statutes, as well as the mental-health evaluation requirements, let’s make use of these laws before enacting others that won’t address the real issue. If more money is needed for facilities, put resources there instead of what it would take to set up Red Flag laws.

John R. Lott Jr. is the president of the Crime Prevention Research Center and the author, most recently, of “The War on Guns.”

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