A warning sign featuring an exclamation mark whose point is a bullet hole" width="960" height="540" />Making such statutes less porous requires approaches that are either extremely confusing or constitutionally problematic.
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Late last month, Congress passed a bipartisan gun bill with a central component that aims to expand state red-flag laws. Less than two weeks later, the limitations of that effort became plain.
With better luck, Robert Crimo III, who is alleged to have killed seven people and injured dozens at a Fourth of July parade in Highland Park, Illinois, could have been a poster child for red-flag laws. Law-enforcement agencies had twice been alerted to disturbing behavior from Crimo, yet he was still able to evade red-flag laws and purchase several guns, in a state with some of the nation’s strictest firearm laws.
In retrospect, the points where Illinois law broke and failed to stop Crimo are apparent. The problem is that making red-flag laws less porous requires a statute that either is a confusing kludge or raises troubling civil-liberties questions—or both—all in the service of a relatively simple goal of preventing dangerous people from getting guns. In effect, a strong red-flag law risks trampling on Fourth and Fifth Amendment rights in the name of protecting Second Amendment rights, while weaker red-flag laws may barely work at all.
After the Uvalde massacre, Charles Fain Lehman, a fellow at the conservative Manhattan Institute, surveyed studies on red-flag laws and found mixed results. Some evidence suggests that they might be effective at preventing suicide but don’t do much about mass shootings. “If we want red flag laws to save lives, they need to be used far more aggressively,” he wrote. “But whether that’s politically or legally possible is a real, and daunting, question.”
The Highland Park shooting illustrates some of the challenges. As the Chicago Tribune reports, Highland Park cops were twice called because Crimo was a danger to himself or others: “In April 2019, police were called because Crimo had attempted suicide, which resulted in Highland Park police visiting his home. The family assured the responders that they were seeking help from mental health authorities, police said. Five months later, police were again called to Crimo’s home because he was threatening to kill people.”
The local police concluded that they didn’t have probable cause to arrest Crimo, but they informed the Illinois State Police. In a statement, that agency said that “no one, including family, was willing to move forward on a complaint nor did they subsequently provide information on threats or mental health that would have allowed law enforcement to take additional action.” Later, when Crimo sought to buy his guns, his father sponsored his application, and the State Police didn’t see any grounds to deny it. He got the guns.
Crimo’s father made a grievous error by helping his son. This is easy to say in the aftermath of the killing spree of which Crimo is accused, but it also should probably have been clear at the time. (The father’s lawyer says his client was not aware of the threat to kill other people when he sponsored the application.) But reliance on family members is an inherent weakness in red-flag laws. Relatives are best positioned to know when someone is in distress, and may feel most at risk from a loved one’s threats, yet they are also most likely to forgive a child or sibling or parent and to feel protective, rather than call the police on them.
Maybe, then, police should have more leeway to deny permits or, as in the case of Crimo’s threats, arrest a suspect—but any system that gives police greater discretion risks abuse and replicating existing inequities in the system. A white young man from a prominent local family (Crimo’s father was a candidate for mayor not long ago) might end up getting a pass, while a less fortunate young man of color would be blocked. (I have previously written about how Black Americans do not, in practice, enjoy the same Second Amendment rights as white Americans.)
Eschewing discretion and mandating that police act more strictly might produce more equitable results, but would risk violating due-process rights and protections against unreasonable searches and seizures. Writing such a law in a way that would pass muster with a judiciary as hostile to gun control as the current one is unlikely.
If asking the police to plug the hole raises too many worries about rights, perhaps individuals are the answer. Commenting on the failure of red-flag laws in this case, National Review’s Rich Lowry writes in defense of the laws, arguing that what’s necessary is a shift in public behavior. “Everyone needs to adopt more of a ‘If you see something, say something’ attitude toward young men flashing signs of potential danger.”
Lowry inadvertently reveals the weakness of his own idea. The link to the War on Terror is a good warning about the dangers posed by his suggestion, because it points to a case in which generally good intentions led to serious infringements on civil liberties, for relatively little gain. Following the 9/11 attacks, the government went on high alert and instituted a series of changes that produced large-scale infringements on rights such as due process, including warrantless wiretaps, spying on mosques, and Kafkaesque no-fly lists. Some of these measures may have prevented some terrorist attacks, though calculating how many would be hard to say. Others, however, were not just largely useless, as Jeffrey Goldberg demonstrated about the TSA in 2008, but also in many cases plainly violated Americans’ civil rights.
Similar dangers loom in trying to apply the same attitude to mass shootings. Maybe people should be more willing to alert police to worrying behaviors by people around them—but given what we know about abuses in the criminal-justice system, many people might hesitate to take such a risk. And those who don’t hesitate may indirectly contribute to a system that is rife with abuse.
Red-flag laws as they exist (and as they may expand under the new gun law) are probably a good thing, even if their only effect is to drive down the gun-suicide rate. But the Highland Park shooting demonstrates that existing red-flag laws have important limitations, and trying to strengthen them is likely to present serious downsides. If the goal is to reduce the risk of mass shootings, there is a simple way to do that without disparate effects on different people: Make it harder for everyone to get guns.
