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After the massacres in El Paso, Texas and Dayton, Ohio over the weekend, many have called for “red flag” laws, including President Donald Trump.
The District has a “red flag” law, or Extreme Risk Protection Orders (ERPOs) that allow a family member or other third party to ask a court to remove a person’s gun due to mental health concerns—but no one has ever used it.
As of Monday, D.C. Superior Court has not yet had any requests for an ERPO since the law took effect in January 2019, a spokesperson tells City Paper. By comparison, Maryland seized guns from 148 people in the first three months the law was enacted.
Part of the problem might be people aren’t aware of the “red flag” law.
“I don’t know of any public awareness campaign that has gone out that make D.C. residents knowledgeable about this resource,” says Dawn Dalton of the DC Coalition Against Domestic Violence.
“Most residents don’t know that the ‘red flag’ law is a tool they can use,” says Erik Salmi, a spokesperson for Ward 6 Councilmember Charles Allen. “It takes a lot of coordination to stand up a new law that involves so many public safety agencies.”
In response to the 99 homicides D.C. has seen thus far in 2019, the mayor’s office and law enforcement have used the bully pulpit to try to get illegal guns off the streets by informing residents on how to report. Mayor Muriel Bowser has asked residents to “speak up” in press conferences and on social media.
“The Superior Court is finalizing its internal system for moving forward on the extreme risk protection order program, sometimes referred to as the red flag laws,” said Bowser during a July press conference. The D.C. Superior Court is prepared; infrastructure was ready the day the law took effect, a court spokesperson tells City Paper.
“As D.C. gets the message out to more people in our city, we are very hopeful that this legislation will help prevent gun violence here as well,” says Rachel Usdan, with the DC chapter of Moms Demand Action.
The D.C. Council passed the law as part of a broader gun control package in December 2018. Because councilmembers passed the Firearms Safety Omnibus Amendment Act of 2018 as an emergency measure, the “red flag” law took effect in January 2019.
The law says a family member, domestic partner, police officer, or mental health professional can petition the D.C. Superior Court to prohibit someone from carrying a firearm or license to carry if they believe that person “poses a significant danger of causing bodily injury to self or others.” If the court grants an ERPO, the Metropolitan Police Department (MPD) is instructed to seize the gun.
What makes D.C.’s “red flag” law unique is that there’s an immunity clause. If police take an illegal gun in D.C., the person who had the gun is immune from possession-related charges. But is the gun was used in a crime, the full weight of the law still applies.
Police Chief Peter Newsham tells City Paper he wasn’t surprised to hear that no one has used the “red flag” law because most people associate it with legal guns, and D.C. does not have many registered firearms. When asked if MPD has or is considering a public awareness campaign, he says “we have not—we haven’t considered doing that. I was wondering if the Council would do that through another agency.”
Newsham did voice concerns about the “red flag” law before it passed.
“I think the immunity clause is not a good idea—that’s water under the bridge because the law has passed with the provision in it,” Newsham tells City Paper, adding this doesn’t factor into MPD’s lack of a public awareness campaign. “What we are going to do is communicate internallyto officers,” he adds.
In addition to the District, at least 17 states have some kind of “red flag” law. But implementing this kind of law is complicated, says Julia Weber, a fellow at the Giffords Law Center to Prevent Gun Violence.
Maryland has been very successful with its law, thanks in part to one local sheriff who’s been one of its most ardent advocates. “Maryland did a lot of grassroots organizing when they attempted to pass the law,” Weber tells City Paper. She says people have just begun using the California “red flag” law within the last year or so, even though it was the first state to pass such a law in 2014, with implementation beginning in 2016. Even now, many of the 58 counties in California have not requested a restraining order, she adds.
“I’d caution against assuming one [red flag] law is successful while another is unsuccessful based on numbers,” says Weber, “ERPO is a tool in the toolbox but it’s not the only tool.”
Ultimately, councilmembers are hopeful residents will eventually take advantage of the D.C. “red flag” law, but emphasize it isn’t the panacea.
“We know all of our partners are committed to getting it in place, and through oversight and support, Councilmember Allen will help them with implementation and coordination so we can use this new tool to save lives and prevent gun violence,” says Salmi.
“I’m proud that the red flag law is on the books in D.C. and I hope more states adopt the laws. Research shows that once ERPOs are regularly used in a state they help save lives,” says Ward 1 Councilmember Brianne Nadeau in a statement to City Paper.
“Red flag laws are a part of the solution, but they’re not the only solution and it’s important that our national leaders don’t stop the conversation there,” she says. “The District also must become a state so that it can enact common sense gun violence prevention laws without Congressional interference.”