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Will Texas pass a “red flag” law to remove guns from people who are deemed dangerous?

As part of his school and gun safety plan, Gov. Greg Abbott wants to explore a law that would allow local officials to take guns away from people if a judge declares them a danger — while also protecting Second Amendment rights. It's an issue that has previously gone nowhere in the Texas Legislature.

Travis County Judge Mike Denton describes the conditions — including the surrender of any guns — of a family violence protective order in his courtroom Friday, June 15, 2018.

It’s become a common refrain after each new mass shooting: “There were red flags.”

Before 26 people died in a rural church in Sutherland Springs in November, the shooter had escaped from a mental health facility, received a domestic violence conviction and had a standoff with police. Before the February massacre of 17 students and staff at a high school in Parkland, Florida, there were repeated calls to the police and multiple warnings about a potential school shooting to the FBI.

As mass shootings continue, more and more states have adopted “red flag” laws that allow law enforcement, and sometimes family members or other parties, to ask a court to order the seizure or surrender of guns from people who are deemed dangerous by a judge.

 After Texas’ second high-profile mass shooting in six months — a Santa Fe High School student has been charged with last month’s slaying of 10 students and teachers at the school — lawmakers are discussing whether this notably pro-gun state needs its own red flag measure.

Similar bills have died quickly and quietly in the Legislature before, but this time the idea is coming straight from the governor’s office. In his 43-page school safety plan, Gov. Greg Abbott, a Republican supported by the National Rifle Association, asked the Texas House and Senate to look into whether Texas might benefit from a red flag law.

Abbott appeared to give a nod of approval, at least in theory, to implementing special protective orders that would allow for temporary gun confiscation and provide mental health treatment when necessary.

“Properly designed, emergency risk protective orders could identify those intent on violence from firearms, but in a way that preserves fundamental rights under the Second Amendment,” he wrote, adding that such orders could have been used to prevent the shootings in Sutherland Springs and Parkland.

But the idea that someone could have their firearms taken away by the government simply because of a threat — rather than an overt act of violence — has some Texans clutching their guns tighter. Some conservative groups have already denounced the idea, saying earlier bills would have violated the Constitution’s due process protections and warning that Abbott's proposal could place too much power with "a vengeful relative" and give judges wide latitude in deciding who is considered an “imminent threat.” In the party's official platform issued in San Antonio on Saturday, Texas Republicans said they opposed the red flag proposal.

Last year, Alice Tripp, legislative director of the Texas State Rifle Association, testified against an unsuccessful bill that would have created a lethal violence protection order, calling it a “pick up your firearms bill.” She declined to comment about the current debate sparked by Abbott’s plan.

A spokesman for Lt. Gov. Dan Patrick, the powerful leader of the state Senate who leans far to the right, did not respond to questions about whether he would support a red flag law.

Even with a push from the governor, there’s a long, bumpy road that lawmakers will have to navigate before Texas adopts a red flag law. That process will begin June 25, when the House Criminal Jurisprudence Committee is scheduled to hold its first hearing to explore whether the state needs such a law — and, if so, how it should be written.

Last year, state Sen. José Rodríguez and state Rep. Joe Moody, both Democrats from El Paso, filed identical bills that would have created a lethal violence protective order. The legislation resembled other red flag laws across the country, giving a court authority to order the surrender of someone’s guns for a year if a judge rules the person is an immediate danger to themselves or others. Under the proposal, family and household members, prosecuting attorneys and police all could request the order from the judge.

Abbott’s office did not respond to a question about whether the governor would now support a similar law, but Moody’s committee — at the direction of House Speaker Joe Straus — is set to lead the upcoming discussion on potential red flag legislation. He said he’s happy to finally have a discussion on the subject.

“There’s this continuing conversation around due process, and unfortunately I think people who are opposed to this type of legislation have just said, ‘There is no due process here,’” Moody said. “This is the same structure of any protective order. So there is a court involvement; there is a hearing within a very short period of time; there is a high standard of evidence to enter a more permanent protective order.”

Red flag laws multiply in other states

Since the Parkland shooting, the number of states with red flag laws on the books has jumped from five to 11, and more states are moving bills through their legislatures. In Congress, multiple bipartisan bills have appeared supporting red flag legislation. And even the NRA recently supported risk-based orders, though only under specific conditions that many states didn’t adopt.

The laws often stem from tragedy: Connecticut first passed such a law in 1999, after a shooting at the state’s lottery headquarters. Connecticut police have removed guns from citizens more than 1,500 times since the law passed. Recent studies have tied the law to a decrease in gun suicides.

The basic elements of the laws are similar in many states: A party can ask a judge to remove someone’s guns because they believe the person is an imminent threat to themselves or others, and the judge can order that the guns be immediately seized or surrendered temporarily. A court hearing follows within a specified period to determine whether the guns should continue to be held or returned to their owner.

States with red flag laws have different rules about who can request an order; only law enforcement officers can request the orders in some states, while states like Maryland and California also allow family and household members to petition a judge. In Delaware, only mental health professionals can ask for the removal of firearms.

In Broward County, Florida — where the Parkland massacre happened — police had already seized guns from dozens of citizens since Florida’s law passed in March as part of a large gun control bill that the state's Legislature approved after Parkland, according to the South Florida Sun Sentinel. The Broward County cases usually involved either a mental health crisis or online threats.

Ed Scruggs, board vice chair of Texas Gun Sense, a group that advocates for further gun regulation, said Texas lawmakers will likely take a long look at Indiana’s law: “That’s a deep red state.”

In 2005, Indiana passed a red flag law after a high-profile shooting spree that ended with the murder of a police officer. The shooter, who was mentally ill and died in the incident, previously had his guns seized while he was detained at a psychiatric hospital, but police were forced to return them to him three months before the shooting.

Unlike most states that require a judge’s ruling before taking action, Indiana’s law enforcement officers can seize guns on the spot, without a warrant, as long as they get court approval shortly afterward. A judge is required to hold a hearing within two weeks, and if the judge rules that the gun owner is a physical danger to themselves or others or mentally ill and potentially violent, the state can hold the firearms for six months before the gun owner can request another hearing.

The measure sailed through the state’s Legislature with only one opposing vote. But the state's red flag law had been so infrequently used by law enforcement that state Attorney General Curtis Hill posted an advisory after Parkland to increase awareness of it.

Hill counters any arguments that his state’s law is a gun grab. As a Republican in a conservative state, Hill said the law isn’t about gun rights or ideology.

“It’s about recognizing the changing environment that we now live in where people do bad things with guns,” he said. “It’s not the gun, its the person, so we’re addressing the situation where a person who is maybe dangerous and using a gun in a dangerous manner, we’re removing the gun from that dangerous person.”

In Texas, gun surrender provision lacks teeth

Texas law already prohibits anyone who is under a protective order because of domestic violence from possessing firearms, whether or not they’ve been arrested or formally charged. According to an analysis from Everytown for Gun Safety, which advocates for more gun regulations, more than half of mass shootings in the country are tied to domestic violence.

Abbott has asked lawmakers to consider whether the state’s protective order laws are sufficient to keep guns out of the hands of dangerous people or if expanding their use beyond domestic violence cases — or creating an entirely new type of protective order — is necessary to reduce mass shootings.

The main weakness of using family violence protective orders as a blueprint, experts say, is the lack of an enforcement provision. The law says anyone subject to a protective order can’t possess firearms but doesn’t specify how guns should be removed or who should take them.

“While we do have the laws on the books and criminal penalties attached to it as well, we don’t have a statewide enforcement process,” said Tracy Grinstead-Everly, policy manager at the Texas Council on Family Violence.

The surrender process is “almost purely voluntary,” Scruggs added. “The judge makes an order, hopefully the person follows up and brings in their guns, or they can keep them with a family member.”

But at least two local judges, one in Austin and one in Dallas, have decided to put more teeth into the surrender process.

In Austin, Judge Mike Denton, who presides over family violence cases, asks respondents who are being put under a protective order whether they have any firearms or live in a home with one. If they say they do, they are told in the written order and by Denton personally that they must surrender their weapons to the sheriff’s department within a certain time frame or they can be held in contempt of court.

Denton’s court sees up to 1,000 protective orders filed annually, and about 45 to 60 guns are seized each year, according to Mack Martinez, the lead prosecutor in Travis County’s family violence division. Denton said the majority of admitted gun owners willingly hand over their firearms, and if they don’t, an arrest warrant is issued.

“We’ve never had anybody not then hustle up and comply with the order,” Denton said.

Judge Roberto Cañas in Dallas County operates his court in a similar way, but he said even if an arrest warrant is issued when someone fails to turn in their firearms, an arrest isn’t automatic.

“Law enforcement is still a little hesitant about kicking down doors” to pick up guns, Cañas said.

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