Red Flag Laws Should Not Target Mental Illness

by Brian Bergen-Aurand

Following last week’s murder of five journalists at the Capital Gazette in Annapolis, Maryland, several more states have passed or are seriously considering passing “red flag laws” or Extreme Risk Protection Orders (ERPOs). Such laws allow police officers, family members, and domestic or intimate partners to petition courts to temporarily remove firearms from a person they claim may present a danger to themselves or others. A judge determines the validity and (if so deemed) length of the removal. Many states limit the restriction to a maximum of one year and allow for appeals.

Washington State passed its Extreme Risk Protection Order Act (ERPO) with November 2016 ballot Initiative 1491 (I-1491). According to the Revised Code of Washington, the law “is designed to temporarily prevent individuals who are at high risk of harming themselves or others from accessing firearms by allowing family, household members, and police to obtain a court order when there is demonstrated evidence that the person poses a significant danger, including danger as a result of a dangerous mental health crisis or violent behavior.”

The state’s ERPO act provides for a petition process with review before a judge or a commissioner, an appeal process, and annual review—when petitioners may file to extend the removal and defendants may challenge it. It also requires that notices issued to defendants “include referrals to appropriate resources, including mental health, domestic violence, and counseling resources.”

Since the passage of the initiative, the ERPOs seem to have been used sparingly in our city. According to a Seattle Times article, as of May 2018, Seattle Police had seized 43 guns under Washington State’s ERPO. Perhaps the best-known case has been the recent one involving Alexander Sinclair McKenzie, an Army veteran with post traumatic stress disorder, who himself asked police to take his gun, was admitted into a medical facility, and then was taken into custody when, upon release, he failed to surrender the weapon. His case is still pending, according to Politifact.

During the initiative process, both the American Civil Liberties Union (ACLU) of Washington and National Alliance on Mental Illness (NAMI) Washington refrained from endorsing I-1491, the latter organization citing “specific identification of mental illness in the bill” and the bill’s reinforcing “false public perceptions about the relationship between mental illness and gun violence.”

Originally, I-1491 read, in part, “This measure would allow police, family, or household members to obtain court orders temporarily preventing firearms access by persons exhibiting mental illness, violent or other behavior indicating they may harm themselves or others.”

While the current version of Washington State’s ERPO includes slightly different language, it still risks linking mental health and violence in ways NAMI Washington and other organizations have highlighted.

ERPOs have been shown to reduce suicide rates by allowing professionals to intervene in crisis situations before they become deadly. Since two-thirds of firearms-related deaths in the United States are suicides, and more than half of all the suicides in America involve guns, this reduction is significant.

However, the key to this positive aspect of ERPOs is the focus on “crisis situations” and “immediate violent behavior.” The problems involving ERPOs arise when they are invoked with regard to “long-term mental health” and “mental illness.” In such cases, ERPOs are founded on ableism and what critics like scholar Greg Procknow refer to as “sane privilege.”

In his May 2018 article, “(Dis)Arming the madman: sane supremacy and the Second Amendment,” Procknow discusses his own history of mental illness and the ways in which red flag laws especially mark “people appearing to have a debilitated or mad mind,” pronouncing them guilty by association with “the perverted actions of one ‘madman’” each time a mass shooting receives prolonged attention.

“Red flag laws branch into the pathologization of the everyday, making anyone mentally odd and different the ‘everymaniac,’” argues Procknow. “Red flag laws depersonalize us and force us to remove our flesh mask(s), securing in its place a deceptive one where we emulate sane hegemonic norms to escape sane supremacist violence and our Second Amendment rights from being further stripped.”

“Red flag laws are a coordinated assault against mad communities—and assault we have not witnessed since the mass institutionalization of the early 1900s,” he continues.

While there may be a line for restricting gun access in the most extreme cases of pathology and incompetency, says Procknow, focusing gun control conversations on the question of preventing “the psychically imbalanced from accessing firearms…. stops the discussion moving on more productively to ‘how do we prevent gun violence and gun-related massacres?’”

In effect, the way in which red flag laws/ERPOs are conceptualized, worded, and put into practice, they further stigmatize and target folks with disablilities by emphasizing mental illness and linking it, directly or indirectly, to violence or the threat of violence. They provide punitive rather than restorative measures, and perpetuate an able-bodied worldview that exacerbates the situation in two ways: first, by inaccurately inverting the relation between mental health and violence and second, by further dissuading folks from seeking mental health treatment for fear of being further ostracized.

Many mental health experts have stressed these points. On the first point, according to the American Mental Health Counselors Association, we need to understand better the basic facts of the relation between mental illness and violence. To that point, the association states:

  • Most persons with serious mental illness are never violent. However, small subgroups of persons with serious mental illness are at increased risk of violence during certain high-risk periods, such as during a first-episode of psychosis and the period surrounding inpatient psychiatric hospitalization.
  • People with serious mental illness are rarely violent. Only 3 to 5 percent of all violence, including but not limited to firearm violence, is attributable to serious mental illness. The large majority of gun violence toward others is not caused by mental illness.
  • People with serious mental illness are far more likely to be victims of violence, including but not limited to firearm violence, than the perpetrators of violent acts.
  • Rates of violent crime victimization are 12 times higher among the population of persons with serious mental illness than among the overall U.S. population.

On the second point, a number of recent reports have warned that we need to rethink this implied link between mental illness and (gun) violence and work evermore to decrease the stigma attached to seeking mental health treatment.

In a January/February 2018 article in the International Journal of Law and Psychiatry entitled “Severe mental illness and firearm access: Is violence really the danger?” Miranda Lynne Baumann of Georgia State University and Brent Teasedale of Illinois State University declare, “While there is a link between mental illness and suicide, a dearth of empirical evidence exists to inform public policy on the link between firearm access and mental illness.” Their study, claim Baumann and Teasedale, indicates “that firearms constitute a serious risk factor for suicide, not violence, for disordered individuals.”

“Thus,” they assert, “legislative efforts to reduce firearm-related risk among disordered individuals should focus on self-harm, not violence.”

Those discussing and legislating around (gun) violence need to take care to remove claims that mental illness is a principal cause of (gun) violence in order to encourage individuals with mental illness to seek help.

This latter point is emphasized as well in Matthew E. Hirschtritt and Renee L. Binder’s recent article in the Journal of the American Medical Association, “A Reassessment of Blaming Mass Shootings on Mental Illness.”

“Attributing mass shootings to untreated serious mental illness,” caution Hirschtritt and Binder, “stigmatizes an already vulnerable and marginalized population, fails to identify individuals at the highest risk for committing violence with firearms, and distracts public attention from policy changes that are most likely to reduce the risk of gun violence.”

The primary policy change they recommend is increasing restrictions on gun access.

While both studies make allowances for ERPOs to take effect in moments of extreme crisis, they caution that references to “mental illness” and long-term mental health need to be redacted from such laws.

What we are seeing after looking closely at recent mass shootings such as at the Gazette is that certain patterns are emerging that may help us identify and treat potentially violent individuals, before they become mass shooters. Again, we have seen that past instances of violence may be one indication of the future potential for mass (gun) violence. As well, we have seen that a history of domestic or intimate partner abuse may be a sign of potential mass (gun) violence. And, again, we have seen that early responses to violence may have been the best prevention possible. But, what we still have not seen is any link between mental health and (gun) violence.


Brian Bergen-Aurand is an Editor at Large for the South Seattle Emerald.

Featured Image by Bart Everson.

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