After 10 people were shot and killed at a Santa Fe, Texas, high school in 2018, Gov. Greg Abbott asked the Legislature to look at creating a “red flag” law, a measure that would allow authorities to confiscate guns from people deemed a risk to themselves or others.
But the Republican-controlled Legislature balked. Lobbyists for gun groups said Texas didn’t need a red flag law, and argued that it could be abused. After Lt. Gov. Dan Patrick said he and most Texas senators did not support such a policy, Abbott distanced himself from the idea in a tweet. The Texas House never voted on it.
The measure’s failure is drawing renewed scrutiny after the school shooting in Uvalde this week, which left 19 children and two teachers dead. While it’s unclear whether a red flag law could have stopped the 18-year-old shooter in Uvalde — who police said had no criminal record or documented history of mental illness — lawmakers across the country are taking a fresh look at these laws, calling for new ones and strengthening existing statutes.
Part of the draw is research showing the effectiveness of these measures. They've recently found growing support among Republicans in Congress, and they also no longer face opposition from the National Rifle Association.
In Texas, though, Abbott and Republican legislative leaders have not addressed whether they'd back a red flag law now. Those who support stricter gun control in the state are looking back at the 2018 bill’s demise with frustration.
“I’m used to not passing bills as a Democrat in the Texas legislature,” said state Rep. Joe Moody, who sponsored one of the red flag bills, “but this is different; it goes beyond that. It’s about what kind of human beings we’re going to be. It’s emotionally exhausting.”
“You work tirelessly on these issues so that this horror and this trauma doesn’t visit someone else, and when it fails to come to fruition, it hurts for you because you know how many people want this change,” added Moody, who is from El Paso.
Red flag laws allow family members, police officers, and in some states, school officials, to file for an extreme risk protection order in court. If a judge grants one immediately, deeming an individual to be a danger, then typically a hearing must be held within two weeks to determine if the person should be restricted from accessing firearms for an extended time.
Proponents argue these laws allow police to quickly get guns out of the hands of people experiencing a mental health crisis, without creating a criminal record.
“There is promise in these types of policies to avert the exact kind of tragedies we’ve seen all across the country, including in New York and Texas,” said Shannon Frattaroli, a Johns Hopkins University health policy professor who researches gun violence prevention. “We don’t have to sit around and wait for the violence to occur.”
A bill to establish a national red flag law is expected to get a vote by the full House in early June. The proposal, sponsored by Rep. Lucy McBath, D-Ga., would allow family members and law enforcement to file in federal court to remove someone’s access to guns. The measure would be enforced by the U.S. Marshals Service or another law enforcement agency.
Several senators signaled openness this week to a red flag law, but no legislation is on the table yet. Sens. Lindsey Graham, R-S.C., and Marco Rubio, R-Fla., previously pushed for legislation in 2019 with Democrats to create a federal grant program to incentivize states to create red flag laws, but efforts stalled.
Nineteen states and Washington, D.C., currently have red flag laws, almost all of them enacted within the last five years. Of the five most populous states, only Texas and Pennsylvania lack a red flag law.
At a news conference Wednesday, Abbott touted other school safety measures signed into law since the Santa Fe shooting, such as increased training for school personnel and resource officers, establishing threat assessment teams, and funding for mental health initiatives and campus security. But Abbott has also enacted laws that increase access to guns, including one allowing Texans to carry a handgun without a license.
A 2019 poll found 68 percent of Texans supported a red flag law, including a majority (53 percent) of Republicans. National surveys have found more than 70 percent of Americans support laws allowing a police officer or family members to seek court orders to temporarily remove guns from someone considered a threat.
"If you’re somebody who believes guns don't kill people, that people kill people, well, here's a tool that helps you figure out who those people are."
Jeffrey Swanson, Duke University professor Who studies Gun Control Laws
Moments after Texas Democratic gubernatorial candidate Beto O’Rourke interrupted a news conference Wednesday hosted by Abbott and Patrick — shouting that they were “doing nothing” to stop mass shootings — he told reporters Texas needed a red flag law to prevent another school attack.
“When somebody says that they are having trouble, they may kill somebody, they may kill themselves, a red flag law would protect the public,” O’Rourke said.
Abbott did not respond to a request for comment.
Red flag laws have become a popular bipartisan solution in part because experts say they work.
“This is one policy I think has some hope of landing in that vanishing small swath of real estate where people who are gun rights people and really care about that, and people interested in gun violence prevention can come together and they can agree,” said Jeffrey Swanson, a psychiatry professor at Duke University who has studied the implementation of state firearm restrictions.
“If you’re somebody who believes guns don’t kill people, that people kill people, well, here’s a tool that helps you figure out who those people are,” he said.
A 2019 study found 21 cases over two years in which red flag orders were used in California to combat shootings targeting multiple people. It’s impossible to know what would’ve happened if those people hadn’t had their guns taken away, the authors noted, however, “these cases suggest that this urgent, individualized intervention can play a role in efforts to prevent mass shootings.”
Research published in 2018 found both Connecticut and Indiana’s red flag laws were associated with a decrease in firearm-related suicides.
Fredrick Vars, a University of Alabama law professor with an expertise in mental health policies, said studies showing a reduction of suicides show the promise of extreme risk protection orders, even for people who don’t yet own guns.
“Well-designed red flag laws are not just the confiscation of guns you own, but a prohibition of purchase,” he said. Before the Uvalde gunman purchased the rifle he used in the school massacre, he had frequently fought with his mother, with some incidents eliciting a police response, his mother’s boyfriend and neighbors told NBC News. Former classmates said the attacker had also posted photos of rifles on social media, and video on Instagram of fights he had with his mother, according to The Washington Post.
It’s unclear whether any of that would have risen to the level of a protection order even if Texas had a red flag law — which points to the challenges of such laws.
The man suspected of killing 10 Black people in a Buffalo, New York, grocery store this month was previously investigated by state police for making a shooting threat as a high school student, and was given a mental health evaluation, but law enforcement did not invoke the state’s red flag law.
Skeptics of red flag laws say the failure to use it in the Buffalo suspect’s case shows the limitations of such measures at preventing mass murders.
“All too often when it comes to gun regulation, people will pass laws but won’t think enough about implementation,” said Eric Ruben, a professor at Southern Methodist University’s law school. “And implementation of red flag laws has varied considerably from state to state.”
New York Gov. Kathy Hochul, a Democrat, issued an executive order Wednesday requiring state police under the existing red flag law to file for an extreme risk protection order whenever they have probable cause to believe a person is likely to seriously hurt themself or others.
“This might be a wake-up call that these laws, though not perfect, might be able to prevent some of these horrific shootings,” Ruben said. “And people need to get educated on how to invoke them when there are red flags.”