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Massachusetts “Red Flag” Law Permits Swift Action to Confiscate Weapons Based on a Risk of Injury

On July 3, 2018, Governor Baker signed a law permitting a court to order firearms and other weapons to be taken away from a licensed individual who “poses a risk of causing bodily injury to self or others” for any reason. This so-called “red flag” bill is similar to laws that have been increasingly passed in other states in the wake of mass shootings such as the school shooting in Parkland, Florida. The new law is designed to make it easier to remove guns from the equation where there is an indication that someone is in crisis or may engage in violence. In Parkland, police had been alerted to concerns about Nikolas Cruz’s violent propensities, but they had no legal authority to remove the guns he already owned. Although police chiefs in Massachusetts have broader discretion to suspend or revoke firearm licenses than authorities in many states (since here only someone whom a police chief determines to be a ”suitable person” according to set criteria receives a license to carry firearms), the suspension or revocation process is not designed for fast action in response to changing circumstances.  

The new bill uses a process similar to those existing in Massachusetts for abuse prevention restraining orders and harassment prevention orders. A petition for an “extreme risk protection order” can be filed by a family or household member (including a relative by blood or marriage, current or former spouse, participant in a substantive dating relationship, co-parent, or roommate) or by a licensing authority (typically a police chief) in the district court or Boston Municipal Court covering the municipality where the gun owner (respondent) resides. The petition must state, under oath, why the petitioner believes the respondent poses a risk of injuring someone. Although earlier versions of the bill were more focused on mental health concerns as a reason for removing firearms, the law that passed gives the court broad discretion to consider any factors that could give rise to a risk of harm, including mental health or substance abuse. If the court concludes that there is such a risk, it can order the respondent to turn in his or her firearms and licenses for a period of up to one year at a time. The court can act on an emergency basis if appropriate, but otherwise will typically set the matter for a hearing within 10 days at which the respondent has an opportunity to contest the petition. If the court issues an order, it must give the petitioner and respondent information (to be produced by the Department of Mental Health and the courts) on crisis intervention, mental health and substance abuse treatment, and counseling resources that are locally available. The court must enter written findings within 24 hours, and the respondent has the right to appeal. In addition, either the petitioner or respondent can later request the court to modify or terminate the order. As with other types of restraining orders, violating an extreme risk prevention order, such as by refusing or failing to surrender firearms or licenses, is a criminal offense.

Although the name of these orders refers to “extreme risk,” in fact the standard the courts must apply under the law is simply whether there is “a risk of causing bodily harm.” This gives a wide range of discretion to the courts to decide what risks are substantial enough to warrant the removal of guns; after all, there are many situations in which even responsible gun owners might pose some risk of injuring themselves or others. Gun-rights activists have challenged Massachusetts firearm restrictions in the past for the amount of discretion given to the government, and will likely challenge this law as well. However, the Supreme Judicial Court previously upheld against a Second Amendment challenge a law allowing a police chief to decide that someone could not carry a firearm because they were not a “suitable person,” which at the time was not further defined in the law. The First Circuit also upheld the current gun licensing scheme, which continues to give much discretion to police chiefs, against a broad challenge in 2012. Given these precedents, it is likely that the courts will uphold the “red flag” law and trust judges to exercise their authority wisely.

Someone can seek an order under the new law based on concern and a desire that a loved one should get help, and not necessarily be charged with a crime or ordered to stay away. This law gives people in volatile situations another option – not seeking a traditional restraining order and not requesting criminal charges – to work toward defusing situations that could lead to gun violence, including suicide. Applied sensibly, it is a positive development that does not direct people or resources into the criminal justice system unnecessarily.

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