Lawmakers will hear red-flag law debate
Gun rights advocates to oppose bill; others want added controls
AUSTIN — Disciplinary and mental health problems plagued shooters who mowed down students in Florida and worshippers in Texas, begging the question of why parents, friends and authorities could not act before people had to die.
Now that Gov. Greg Abbott has asked Texas lawmakers to pass legislation to allow judges to act on such red flags, the House Committee on Criminal Jurisprudence is scheduled to hear public testimony June 25 to explore such a law.
Similar legislation, though, has consistently failed in Texas, often without a public hearing. As the committee prepares to hear testimony, gun rights advocates are ready to fight against such a law, while gun control groups demand action be taken to prevent tragedies.
About 42 percent of mass shooters since 2009 exhibited red flags that a judge could have decided were serious enough for a protective order to temporarily take away that person’s weapons, said Andrew Karwoski, a legal team member for Everytown for Gun Safety.
At Monday’s hearing, the committee will delve into exactly how wide or narrow Texas’ law should be tailored, namely, who should have the authority to file for a protective order. And whether mental health treatment should be provided to individuals who receive one.
Democratic lawmakers last year introduced identical redflag bills in the House and the Senate that would have taken effect Sept. 1, 2017 — just weeks before the shooting in Sutherland Springs. But both bills died in committee.
‘It will be abused’
Rep. Joe Moody and Sen. Jose Rodríguez, both from El Paso, said their bill would have allowed family members, law enforcement officials and prosecuting attorneys to file an application for a protective order. A court hearing would determine if the order should be issued, after which individuals would be prohibited from possessing or purchasing firearms for one year. An additional hearing would determine if the order should be lifted or extended.
Red flags under the law would include a history of violence, making threats, substance abuse and the recent acquisition of guns, ammunition or other weapons. But gun rights activists think something as simple as a threat should not be enough for a judge to take away someone’s weapons.
The National Rifle Association came out in support of redflag laws in March, if they required due legal process first. But others are leery.
“The problem is when you leave something that open-ended, it’s not that it can be abused — it’s that eventually it will be abused,” said David Amad, vice president of Open Carry Texas. “You’re allowing people to inject their own personal opinion into someone else’s constitutional rights.”
But Moody said provisions are built into the bill to prevent unfounded claims.
Under his bill, false reporting is a criminal offense. And he said the “clear and convincing evidence” standard used in these cases is very high — the same standard courts use when deciding whether to remove a child from a home.
“You’re essentially going to be issuing a warrant to seize the weapon,” Moody said. “Judges make those decisions every single day. … This is not a new concept of law.”
Aside from testimony on due process, Monday’s committee will also consider expanding the law to allow school employees to file for a protective order.
The Texas State Teachers Association supports red-flag laws, provided that additional mental health services are enacted within schools. But other gun control advocates aren’t so sure.
Typically, the law is most effective when it allows family members and law enforcement to file an application for the order, Karwoski said.
“A family member or a law enforcement agency who interacts with a person is going to be on the front lines …when a person presents a threat to themselves or a threat of committing an act of violence,” Karwoski said.
The committee will also consider adding a mental health treatment provision within the protective order.
Mental health component
Moody said a red-flag gun law that does not address mental health issues would not do much to prevent gun violence long term. But there is debate on whether the removal of a gun should always be accompanied by mental health treatment.
The NRA said it supported the removal of guns if it was always accompanied by mental health treatment, whether court-ordered or within the community.
But the assumption that every individual should automatically qualify for mental health treatment just because there is an order could create a dangerous narrative, said Greg Hansch, public policy director for National Alliance on Mental Illness Texas.
“It’s counterproductive if we’re just funneling, saying all people with mental illness are dangerous and are at risk of harming themselves and others,” Hansch said. “The vast majority of violent acts are committed by people who don’t have a mental illness — that needs to fit into this conversation.”
Gyl Switzer, the executive director of Texas Gun Sense who spent five legislative sessions as a mental health advocate, said court-ordered mental health treatment often doesn’t work. She said red-flag laws are inherently designed to bridge the gap between individuals who are showing dangerous behaviors but do not rise to the level of involuntary treatment. Many do not have a mental illness.
Switzer believes red-flag gun laws should only be a small piece in a larger picture of gun control legislation. She said for the law to be effective, it should work in conjunction with other legislation, such as increased mental health services and universal background checks.
Given the opposition, there is no guarantee Texas lawmakers will pass even a modest red-flag law. But Moody, who plans to refile his bill in the 2019 legislative session, said he is confident it will have more momentum.
“In other states you’ve seen people that are Second Amendment advocates and folks that want to reform gun laws come together and figure out how to come to an agreement,” Moody said. “I think we can certainly do that in Texas.”