Should police be allowed to seize guns from the mentally ill?

More than a dozen states have laws on the books that allow local law enforcement to seize firearms from people diagnosed as mentally ill


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Following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, a great deal of attention was paid to the fact that the gunman had exhibited myriad signs of mental instability –hurting animals, threatening and/or fighting with other students, previous mental health treatment – that may have been enough for relatives or school authorities to ask law enforcement to keep him from possessing firearms. As of February 2019, more than a dozen states have laws on the books that allow local law enforcement to seize firearms from people diagnosed as mentally ill. In this podcast episode, Jim and Doug discuss the constitutionality of such laws, and what they might mean in the larger context of the gun-control debate.

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Learn more about red flag laws or read a transcript of this episode of Policing Matters.

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Policing Matters Transcript

Doug Wyllie: Jim, more than a dozen states – I think the exact number is 14, but I'm not entirely sure, there may be more – have laws on the books, have passed them, they're allegedly being enforced, to seize firearms of people who have been determined to be mentally ill, mentally unfit. I think that we need to add to that the dangerously mentally ill. I think that's probably in most of the legislation, most of the languages of the law. The fact of the matter is that just because you're mentally ill, doesn't mean you're dangerous. I would venture that most people who have a mental diagnosis, depression or anxiety, or whatever, are not dangerous. But that tiny percentage of people who are, who pose a danger to themselves or others, as we've seen with the shooter in the Marjory Stoneman Douglas High School who had a long history of mental health problems, they're few, but their impact is tragic. Some of these folks have taken multiple lives. Sometimes they take out their family and then themselves. And that's a tragedy in and of itself and it's a headline we sometimes don't read.

These laws. It's my understanding that someone has to report the person as being dangerous, right? And the question becomes, I mean, how much of an expert is a person who has never gone to medical school? You know? I mean, the psychiatrists and psychologists and even pharmacies, they can't report these people. And they have diagnosed someone and do have a good insight into what that person's behavior might be. But, you know, a 45-year-old mom might be concerned that their son or daughter is in peril or in crisis, but it seems to me to be a little bit of a slippery slope. We were talking about swatting before. What if you just want your kid's guns to be taken away, and the person isn’t any threat? So, I have some concerns about this. Of course, as most of our listeners know, I'm a long-term member of the NRA and an avid sport shooter. But it concerns me. And I think, also, before I ask you the following question, I think it should be pointed out that 95 percent of cops that I know won't ever enforce this law. They will resist it. They will resist it. They will resist it, until they're forced to do something. Right?

Jim Dudley: Yeah, yes and, well, you might be convinced otherwise in a second. So, 13 states, as you said, do have some sort of red flag law. In California, I believe, it was 2016 where the law was passed. Right now, the current criteria is that under the law, police, immediately family members and roommates can ask a judge to have a gun removed from the immediate possession, within the house or dwelling, of an individual who shows some sort of crisis. Circumstances can range anywhere from workplace violence to domestic violence, to divorce proceedings where somebody has shown some antagonistic behavior or aggression, drug abuse by a gun owner. So, in California, the seizures can take place and remove guns for anywhere from three weeks to up to a year. In 2016, when the law was created in California, there were 86 guns seized. In 2017, that rose to 104. And just last year, in 2018, according to the Justice Department, 424 seizures happened in California.

Doug Wyllie: Woah.

Jim Dudley: So, I think like anything else, with the heightened awareness, with the headlines, with certain political powers being in power, you've got individuals saying, "Hey, I am my brother's keeper and I don't think that guy should have a gun." Some legislators tried last year to broaden the criteria to coworkers and, I think, fellow students. Other people who could do the reporting. There already was a system to get a temporary restraining order, where you had to essentially articulate reasons why the individual was showing some behavior that would benefit from having guns seized from their possession. This makes it easier. The individual calls, the police do the evaluation, a judge reviews it and decides whether the guns should be removed. I'm not sure how the other 12 states do it, but they're similar and the criteria may also range into things like alcoholism or reckless behavior that would substantiate the removal of the guns.

Doug Wyllie: Yeah. Let me posit a hypothetical to you. A person who is a gun owner has a significant emotional event take place. Death in the family, something where they, for a period of time, need to have some assistance from a medical health provider. And let's say, for example, that it's depression and they're prescribed medication and there is a person who is just an anti-gun person. And they report that this individual who's seeking help, that they need to have their guns seized, when, in fact, that person really and truly poses no danger. Chew on that for a second while I give you the second one.

That same person who suffers from depression sees that there's a red flag law in his state and fails to go get the necessary help for that period where he is mourning the loss of a family member, and that person then doesn't get the help and therefore continues to suffer because he's afraid, "They're gonna’ come take my guns." So those are two very realistic outcomes here.

Jim Dudley: Right. It's an argument posed, right now, today. There are some who say that the national standard description of mental illness isn't broad enough, that the database of the mentally ill should be expanded to add a couple more million people. And the two main opposing groups opposing a mental ill database when it comes to guns is the NRA on one side and mental health professionals on the other. And if that doesn't really make sense, think of it just the way you said. The mental illness providers, advocates, say just what you said. You will get people who won't seek help because they're afraid of the stigmatization. They're afraid of being special, being on a list, and having their guns taken away. Or, being prohibited from buying guns in the first place.

Doug Wyllie: Right, right.

Jim Dudley: And, who's going to come up with the list of the "approved" mental illnesses? I mean, you cited depression. Depression is ...

Doug Wyllie: Widespread. It's everywhere.

Jim Dudley: Yeah, so if that is a criteria, that may be a tactic some legislators may take to have the gun control that they want.

Doug Wyllie: Many people who are in mental crisis are only there for a period of time, because it was triggered by an event in their life. And when you've gone through, you know, "I've gotta talk to somebody. I'm gonna see a person for a month, or a year, or two years, or something, and I'm gonna go on this medication and I'm gonna sort out my feelings and sort out my problems." Then, once you've gone through that, does that then make you ineligible to purchase a firearm thereafter? I mean, I see this as being a bit of a slippery slope.

Jim Dudley: Well, the seizures are temporary. Like I said, three weeks to a year. Here's another odd bedfellow. The ACLU of California said expanding the law to include coworkers, employers and school employees would make it prone to abuse.

Doug Wyllie: Yeah, I agree with that.

Jim Dudley: They recognize that.

Doug Wyllie: I can't believe I just agreed with the ACLU.

Jim Dudley: There you go.

Doug Wyllie: I think that we have, with this, again, I'll use the term slippery slope. Where will this end? And I can listen to the argument on the other side in a perfectly reasonable way. But I even wonder how constitutional this is. You know? I can see lawsuits taking this to the Supreme Court to see if it doesn't violate the second amendment.

Jim Dudley: Right, so in researching this, we talked a little bit, you and I, about sheriffs in a nearby state who are refusing to enforce this law, saying it might've been the general election voters who approved of it ...

Doug Wyllie: It was. It was.

Jim Dudley: But it does not change the Constitution, and a locally approved piece of legislation does not supersede the United States Constitution. And they're saying, "Hey, we want to wait and see where this shakes out in the courts." And I just read today that the attorney general for that state says that those sheriffs who don't act may be liable should something happen as they're in action towards moving to enforce this law.

Doug Wyllie: Yeah. It's a hot topic. I get that there's passion on both sides. And I'm not opposed to, you know, getting people who are potentially violent into better, more effective treatment. To an extent I can see a temporary seizure, but very, very temporary while something is done. But I don't want this to turn into a giant landgrab for the gun control side. So that's where I stand. I don't think it's a surprise to anybody. Where do you stand on this very hot topic? Send us an email to policingmatters@policeone.com.

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