Resource Document on Risk-Based Gun Removal Laws

(Reprinted with permission from APA Resource Document, June 2018)

Introduction

In 2014, the American Psychiatric Association (APA) published a “Resource Document on Access to Firearms by People with Mental Disorders” (1), which addressed the complex relationship between firearms, mental illness, suicide, and violence. The document highlighted the limitations of existing legislative strategies, such as the National Instant Criminal Background Check System (NICS), in combating the problems of gun-related suicide and violence in the United States. It noted that registries like NICS can be helpful in some situations, but they are minimally effective in identifying people at acute risk of harm to self or others. In addition, they can unfairly stigmatize individuals with mental illness. As an alternative strategy, the resource document considered a different type of law: that which temporarily restricts access to firearms during a crisis, regardless of mental health diagnosis. Such laws, which had been implemented in Indiana, Connecticut, and California at the time, are risk-based and not tied directly to mental illness or histories of adjudicated civil commitment. Preliminary data indicated that the laws were particularly effective as a suicide prevention strategy, and they deserved further study as a violence reduction measure. Since the publication of the 2014 resource document, the national dialogue on gun violence has progressed, including further consideration of risk-based firearm restriction.

The current resource document summarizes the growing body of research surrounding risk-based firearm removal laws. These laws go by several names: gun violence restraining orders (GVROs) (2), risk-based gun removal (3), dangerous persons firearms seizure (4), extreme risk protection orders (5), and others. They have also been loosely referenced as “Red Flag Laws” because of their ability to initiate a process for firearm removal when a “red flag” of concern about an individual’s firearm possession is raised by his or her conduct.

In this document, we use the term “risk-based gun removal laws” to include legislation that aims to restrict access to firearms temporarily for individuals determined to be acutely dangerous to themselves or others. At the time of this writing, four states—Connecticut (6), Indiana (4), Washington (5), and California (7), —had enacted laws that allow clinicians or family members to initiate firearm removal based on dangerousness, regardless of psychiatric diagnosis. Several other states have similar laws allowing firearm removal by law enforcement officers (8, 9, 10), and still more states are actively considering implementation of risk-based gun removal programs. In addition, President Trump and the National Rifle Association recently endorsed these laws after another tragic mass shooting event. Given the rapidly shifting legislative landscape around this issue, this document limits its discussion to the Connecticut, Indiana, Washington, and California laws, which serve as illustrative examples of risk-based gun removal legislation.

How Do Risk-Based Gun Removal Laws Work?

Although procedures vary from state to state, all risk-based gun removal laws are designed to address crisis situations in which there is an acute concern about an individual’s access to firearms. For example, a person can call the police if she notices that her friend has been drinking heavily and making threats to harm himself. A spouse can ask for removal of firearms from the home based on escalating threats of violence in a marital relationship. An individual can even call the police him- or herself, asking for guns to be removed temporarily because of concern about suicide or violence.

Once the police and/or courts have been notified, an investigation must be conducted and a determination made about whether a genuine threat to self or others exists. In some states, a warrant is required, but sometimes police officers can remove firearms even without one. Officers responding to a crisis typically do more than remove firearms; they assess the person of concern and take further action as necessary, including referral for mental health evaluation or arrest. Typically, firearms can be removed for a short period before a hearing must be held and then for a longer period if the criteria are met at the hearing. The total authorized period of removal ranges from two weeks to one year, depending on the state. After the restriction period has ended, individuals whose guns have been removed can petition the court to have them returned.

Policies and practices vary significantly among states with gun removal laws regarding who can initiate the gun removal process, whether a warrant is required, what factors the court must consider before ordering firearm removal, what must be proven in court, how long the firearms are restricted, and what process is used to restore the individual’s firearm access. Appendix A delineates the key features and differences between laws in Connecticut, Indiana, California, and Washington.

Outcomes Data

Connecticut and Indiana implemented their risk-based gun removal laws in 1999 and 2006, respectively, after tragedies involving mass shootings. To date, they are the only two states with published data about the laws’ outcomes (3, 11, 12, 13).

How Often are Risk-Based Gun Removal Laws Used?

Although concerns from gun owners have been raised that these laws may lead to widespread reporting and unwarranted gun removal, data from Connecticut and Indiana indicate that risk-based gun removal laws are used infrequently. In the 14 years of the Connecticut study (1999 to 2013), 762 “risk-warrants” (Connecticut’s term for gun removal warrants based on dangerousness) were issued—an average of 51 per year (3). Connecticut has approximately 227,000 gun-owning households (14, 15), so 51 warrants per year affect only a tiny fraction (0.02%) of gun-owners in the state. An average of 7 guns per risk-warrant were seized (3).

In Marion County, Indiana, 404 petitions for gun removal were requested between 2006 and 2013—approximately 58 per year. Parker estimated that 0.04% of gun-owning households in the county were affected by gun removal laws (13). On average, 2.7 guns were seized per petition in Indiana (1096 total firearms, including 555 handguns and 525 long guns) (13).

Who Typically Initiates the Firearm Removal Process?

In Connecticut, about half of the reports to police were made by an acquaintance of the person of concern – 41% from family members and 8% from employers or clinicians (3). The remaining 51% of reports were made by people who did not know the person of concern or did not disclose their relationship to the police.

Whose Firearms are Removed?

Data from Connecticut indicate that the typical subject of gun removal was a middle-aged or older married man (average age of 47) (11) and that 5% of the male subjects were military veterans. Most of the subjects (88%) were not known to Connecticut’s public behavioral health system at the time the risk-warrants were served, indicating that they had not received treatment for a serious mental illness in the prior year (3). Likewise, the majority of subjects were not involved with the criminal justice system; 88% had no criminal conviction in the year before or after the gun removal (3).

Under What Circumstances are Firearms Removed?

Most Connecticut cases involved a concern about self-harm (61%), with a concern about harm to others in 32% of cases. Nine percent of the subjects posed a risk of harm both to self and others. In 16% of cases, a risk of harm to self or others was not specified; these cases typically involved individuals who were too intoxicated or psychotic for that distinction to be made (3). Similarly, in Indiana, removal of a firearm was most likely to occur upon threatened or attempted suicide (68.1%), followed by circumstances such as domestic disturbance (28.5%), intoxication (25.5%), actual or threatened violence (21.0%), and psychosis (16.3%) (13).

What Happens to Firearms After They are Removed?

In 99% of the Connecticut cases, police search led to removal of firearms. In most cases, the outcome of the mandatory court hearing following gun removal was not known. However, among the known outcomes, the seized firearms were held by police (60%), ordered destroyed or forfeited (14%), returned directly to the subject (10%), or transferred to another individual known to the subject and legally eligible to possess them (8%) (3).

In Indiana, court-ordered retention of the firearm (63%) was the primary outcome, which correlated strongly with the gun owner’s failure to appear at the court hearing. In cases where the owner failed to appear, the court typically ordered the destruction of the firearm five years after the initial removal petition. During the first three years of Indiana’s gun removal statute, the court commonly suspended the individual’s license to carry a gun. Dismissal of the case was another common outcome (29%), and this result was closely linked to the defendant appearing in court. Other less frequent outcomes included firearms destroyed with agreement of the owner (8.9%) and transfer of seized weapons to another individual (5.7%) (13).

What Happens to the Individual After His or Her Firearms are Removed?

In both Connecticut and Indiana, the most common police action at time of gun removal was transport to the hospital for psychiatric evaluation (55% and 74%, respectively) (3, 13). In Indiana, 8% of individuals were arrested, and 14% were not detained at all (13). In Connecticut, 17% of individuals were arrested, and 27% were not detained (3). The Connecticut data indicate that, in the year following gun removal, 29% of subjects received services through the public mental health system, suggesting that gun removal served as an entry point into psychiatric treatment (3).

How Long is Firearm Access Restricted?

By statute, firearms can be held for 14 days in Connecticut before a court hearing, after which the restriction can be extended for a period of up to one year (6). No data are available regarding how long the restriction typically lasts in that state. In Indiana, the statute indicates that firearms can be held for up to 14 days, after which a court hearing must occur, and the restriction can be extended for up to 180 days. However, Parker noted that, in practice, the time frames for gun removal in Indiana often do not meet statutory requirements. Parker’s study found that it took about 140 days for the prosecutor to petition to retain guns seized by the police (rather than the required 14 days), with a significant decrease during the last three years of the study to 88 days. Resolution of the cases occurred in just over 280 days (9 months) after the time police had seized the firearm (rather than the statutory 14 days plus 180 days) (13).

Key Findings from Studies of Risk-Based Gun Removal Laws

Although the risk-based gun removal laws in Connecticut and Indiana were both enacted in the aftermath of highly publicized mass shootings, data indicate that they are most often used in response to concerns about suicide risk, not violence (3, 13). The laws are directed toward individuals in crisis, typically without a known history of mental illness. In addition to decreasing violence and suicide risk by removing firearms, the laws provide an opportunity for treatment intervention. In fact, most individuals whose firearms were seized were also taken to a hospital for psychiatric evaluation, and approximately 30% remained in treatment one year later.

Swanson et al (3). emphasize the utility of risk-based gun removal laws as a public health strategy to prevent suicide. Although their data are relatively limited, the authors conclude that Connecticut’s law may prevent one suicide for every 10 to 20 gun removals, primarily by delaying access to firearms during a period of acute crisis. In Indiana, Parker (13) is hesitant to draw conclusions about violence or suicide prevention, but he does note the potential utility of reducing access to weapons for high-risk individuals for an average of 9 months.

The findings from Connecticut and Indiana are consistent with a larger body of research supporting “means reduction”—the removal of the means by which individuals might act harmfully to themselves or others—as a suicide prevention tool. Population-wide restriction of lethal means has been demonstrated to be effective in reducing suicide when the method is both highly lethal and common (e.g. guns in the United States), and when the restriction is supported by the community (16, 17, 18). Similarly, rates of suicide by firearm decrease when restrictions are placed on firearm access, particularly by youth. International studies have demonstrated reduced rates of firearm and overall suicide following legislation and policy changes reducing access to firearms in Australia (19, 20), Switzerland (17), New Zealand (21), and Israel (22).

Restricting access to firearms has also been found effective in decreasing rates of suicide in the United States. States with more firearm restrictions and lower rates of gun ownership have lower rates of both overall suicide and firearm suicide (23–26). Conversely, states with fewer restrictions on firearm ownership and higher rates of gun ownership have higher rates of firearm related suicides (27, 28). Notably, suicide attempt rates were similar in both high and low gun-ownership states, but mortality rates were twice as high in high-gun ownership states. The differences in mortality were entirely attributable to differences in firearm suicide rates (29).

Advantages and Limitations of Risk-Based Gun Removal

As noted in the 2014 Resource Document (1), risk-based gun removal laws are attractive for several reasons. First, they focus on acute dangerousness rather than on psychiatric history or diagnosis, decreasing the stigma associated with mental illness and disavowing the mistaken premise that mental illness is the primary cause of acute violence risk. Second, in contrast to a registry (e.g., NICS), which primarily limits the ability to purchase firearms, risk-based gun removal laws provide a legal framework for removing firearms from individuals at a time that is closely linked to the risk of a dangerous act. Third, gun removal laws can supplement the legal options available to mental health professionals responding to a patient who poses a serious risk to self or others. Even in situations when the provisions of the laws are not formally invoked, their existence can create leverage for families and friends to persuade patients to voluntarily surrender weapons to them temporarily for safekeeping. Fourth, risk-based gun removal laws provide a way to reach individuals who do not seek psychiatric assistance and whose suicide or violence risk might otherwise go undetected.

Despite these advantages, several concerns have been raised about risk-based gun removal. The laws have been criticized for the heavy procedural burden they place on courts and police officers, straining already scarce resources (3). In addition, although the Connecticut and Indiana statutes were implemented over a decade ago, public awareness of these laws—as well as that of mental health and other health professionals—may be limited. Finally, because the state statutes differ significantly from each other, and outcomes data are preliminary, best practices for risk-based gun removal have yet to be established.

Guidance for Mental Health Professionals

Mental health clinicians often struggle to manage patients who pose a risk of harm from firearms, even in states with well-established gun removal laws. Many clinicians are uncomfortable asking patients about access to guns, and in some cases, gun rights advocates have attempted to prevent them from doing so (thus far unsuccessfully) (30). When clinicians do become aware of firearm risks, they may not know of their state’s risk-based firearm removal statutes or how to use them in practice.

Certainly, educating physicians generally about firearms is an important step in managing risk. To this end, some medical organizations have created educational programs aimed at enhancing physicians’ ability to talk about firearms from a health and safety perspective with their patients (31, 32). Although general knowledge about guns is helpful, specific education about risk-based gun removal is also necessary. Without this step, mental health clinicians may miss important opportunities to intervene in times of crisis to keep their patients and others safe.

When a patient tells a mental health clinician about a firearm risk – for example, saying that he has been contemplating suicide using a handgun kept at home – the clinician’s first step is to perform a clinical assessment. If the clinician concludes that a serious risk exists, he or she may proceed down two paths. On the first path, the patient can be referred for emergency psychiatric assessment and/or hospitalization. On the second path, the clinician may also (or instead, depending on risk considerations) pursue removal of firearms from the patient’s home. In many cases, removal can be accomplished by encouraging a friend or family member either to take temporary possession of the weapons or to contact police for removal of the firearm. However, in states with gun removal laws, the clinician may be able to use an emergency exception to confidentiality to ask the police directly to intervene, even if a patient refuses to allow contact. Both paths – providing care for the patient and limiting access to guns – may be pursued simultaneously.

It is important to understand that risk-based gun removal laws are designed primarily to enable concerned citizens to intervene when they perceive a danger related to firearms; the laws are not typically written with mental health professionals in mind. They do not delineate the exact circumstances in which mental health clinicians may breach patient confidentiality in order to make a report to the police, nor do they mandate such breaches. Furthermore, they do not include immunity protections from civil liability related to breaches of confidentiality. Given this ambiguity, clinicians are well-advised to familiarize themselves with their local laws about exceptions to confidentiality, seeking consultation from an attorney or forensic psychiatrist where possible. At a minimum, clinicians should clearly identify the factors that raise concern about a patient’s gun possession and that might warrant disclosure to the police. They should also document their reasoning and consider whether other measures, such as emergency hospitalization or voluntarily surrender of guns to a trusted person, would be sufficient to keep the patient and/or others safe. Alternatively, clinicians should consider whether the threat of harm to others would justify a disclosure to law enforcement under other applicable state laws (e.g., Tarasoff (33) or New York’s SAFE Act) (10) without fear of liability. As in all clinical circumstances, careful consideration of possible actions requires analysis of the risks of disclosure versus non-disclosure.

When a disclosure is determined necessary, it is important to note that risk-based gun removal laws do not provide guidance about how much information should be disclosed to the police. The guiding principle of “disclose as little confidential information as possible to accomplish the objective at hand” may be helpful to remember in these cases. For example, the clinician will likely need to disclose the patient’s name, the location of the firearms, and any information that supports the clinician’s opinion that a serious risk exists (such as the patient’s statements about suicide, past history of self-harm, and additional suicide risk factors). However, disclosing a full psychosocial history and other details about treatment may be unnecessary to accomplish the objective of facilitating the police’s assessment of imminent risk.

If the police decide to intervene and restrict an individual’s access to firearms, the clinician may be asked to testify in a subsequent hearing about whether the guns should be returned. Data from Indiana and Connecticut indicate that many individuals waive their right to a court hearing, but if one occurs, the clinician may be asked to explain the circumstances leading to the gun removal or opine on the patient’s ongoing risk. Again, clinicians should seek consultation in these cases, ideally well in advance of the hearing. State laws about disclosure of medical information during court proceedings vary widely; in some states, patients may be able to invoke an evidentiary privilege under these circumstances in an effort to keep the clinical information out of court. Consultation with a forensic psychiatrist colleague and/or risk management attorney can be helpful should this circumstance arise.

Additionally, clinicians may have questions about whether to continue working with a patient after reporting a patient’s firearm risk. Gun removal laws do not preclude contact between the reporting individual and the one whose guns are removed, and the decision whether to continue the treatment relationship must be made based on clinical factors against the backdrop of the clinician’s obligation not to abandon the patient. Again, consultation with a mental health colleague or risk management professional can be helpful. In some cases, patients may be grateful for the clinician’s care and concern during the firearm crisis, but in others they may be angry at the clinician for initiating the process that led to what they perceive to be a violation of their rights. In the latter circumstance, it may be appropriate to transfer the patient to another clinician, taking care to provide an appropriate handoff and avoid abandonment.

Finally, although only a small number of states have risk-based gun removal laws, clinicians practicing in other jurisdictions may still have options and/or mandates to manage acutely dangerous situations involving firearms. For example, if a patient makes a threat to shoot her boss, as noted above, the clinician may have a duty to protect the intended victim by hospitalizing the patient, issuing a warning to the identified victim, and/or providing notification to law enforcement. In a different scenario, if a patient discloses that his children have access to an unlocked firearms storage cabinet, a report to child protective services may be required. Clinicians can easily lose sight of appropriate strategies to manage risk and provide care for patients during the emotionally charged clinical encounters that surround threats of harm from firearms. Risk-based firearm removal laws can be helpful under these difficult circumstances. However, it is important to remember that the laws have typically been designed to facilitate intervention by families and concerned citizens. Although they may be a helpful tool for mental health professionals, risk-based gun removal laws must be seen as just one part of a larger strategy to manage risk and provide appropriate clinical care for patients who pose a threat of suicide or violence.