NAMI's Honberg on ERPOs, Red Flag Laws

NYAPRS Note: Here’s a good comprehensive summary on the Extreme Risk Protection Orders that are associated with ‘Red Flag Laws’ by NAMI’s Ron Honberg from testimony he gave to the Senate Judiciary Committee on March 26 (see article on that hearing below).

NYAPRS views ERPOs as a very promising public safety strategy, provided it is presented to the public and implemented for ANY individual who poses a gun related threat.

It will be essential that we hold politicians’ feet to the fire when they describe this as a strategy pertaining only to people with mental health conditions  since the overwhelming majority of threats come outside of our community, let alone to avert highly damaging stigma and discrimination.

Further, Ron’s recommendation to include healthcare professionals among those who can petition for ERPOs only makes sense as long as this applies to ALL healthcare practitioners who essentially are treating the entire public.

        

Statement of Ron Honberg Arlington, Virginia

On Behalf Of The National Alliance On Mental Illness

Regarding Senate Judiciary Committee Hearing On “Red Flag Laws: Examining Guidelines For State Action”

March 26, 2019 10:00 A.M. 

In the aftermath of mass tragedies in recent years, the focus of public opinion and dialogue has often been on mental illness as the culprit. This is unfortunate, both because mental illness is frequently not the culprit, and because the often-unfounded presumption that acts of mass violence must be attributable to mental illness reinforces longstanding negative stereotypes linking mental illness with violence.

Overall, only 4% of violent acts in the U.S. are attributable to mental illness.i Most people with serious mental illness are never violent towards others and are more often victims of violence than perpetrators of violence. As described in greater detail below, although a small subset of people with serious mental illness may pose increased risks for violence towards others, this is generally associated either with other risk factors for violence or the untreated symptoms of psychosis, such as delusions or hallucinations.

Risk Factors for Violence Toward Others

Research on risk factors for violence, including gun violence, have identified the following factors as potential predictors. It is important to consider these factors in context. The fact that a certain behavior or characteristic may constitute a risk factor for violence doesn’t mean that most people who fall into this category will engage in violence.

Evidence-based factors that increase risks of violence include:

·         A history of violence, which the strongest predictor of future violence;

·         A history of physical or sexual abuse, particularly in childhood;

·         Abuse of alcohol or drugs;

·         Domestic violence has been identified as a risk factor, particularly for violence with a firearm;

·         Past convictions for violent misdemeanors;

·         Delusions and paranoia, sometimes characteristic of psychosis. People experiencing first episodes of psychosis may particularly be at risk. However, it should be noted that most people experiencing these symptoms will not act violently towards others.

Suicides – The Most Significant Risk

The magnitude of the suicide crisis in the U.S. cannot be overstated. In 2016, suicides were the 10th leading cause of death for all Americans. Nearly 45,000 people died by suicide. Suicide  rates were more than 2 times higher than homicide rates. For young people between the ages of 10 and 24, suicides were the second leading cause of death in 2016.iii

The epidemic of suicides has been particularly severe among veterans. In 2016, the U.S. Department of Veterans Affairs reported that about 20 veterans per day  take their own lives.  In that same year, veterans accounted for 14% of all suicide deaths in the U.S. Rises in suicide rates among young veterans between the ages of 18 and 34 have been particularly prevalent between 2006 and 2016.iv

Nearly half of all suicide death in the U.S. are with firearms. And, suicides account for 60% of gun deaths in the U.S. each year. Because guns, when used, are frequently lethal, 90% of suicide attempts with guns result in deaths. Others result in serious disability.

And, a significant percentage of people who die by suicide were diagnosed with major depression or another serious mental illness. While it is difficult to accurately diagnose the existence of a mental illness after a person’s death, the Centers for Disease Control (CDC) recently estimated that about half of all suicide deaths involved people diagnosed with mental illness, and they speculated that the actual rates may have been significantly higher because many others may have had mental health conditions but had not seen a mental health professional and thus were undiagnosed.v Other experts have suggested that rates of mental illness among those who complete suicides could be as high as 90%.vi

Extreme Risk Protection Orders (ERPOs).

ERPOs are civil court orders issued by judges to temporarily remove firearms or ammunition from persons who are identified as posing immediate or imminent risks to the safety of themselves or others. Currently, 14 states plus the District of Columbia have passed laws authorizing ERPOs and similar legislation is pending in several other states.vii Although state laws differ in terms of requirements and procedures, ERPOs generally involve a two-stage process, depending upon the urgency of the specific situation.

In urgent cases which involve concern about potential immediate risk of gun violence, an “ex parte” hearing may be held which may or may not involve notice to the individual who is the subject of concern. In such cases, the judge may issue a temporary order prohibiting the  person from possessing or purchasing a firearm. Typically, these orders are in effect for three weeks or less. Based on experiences in the states, sometimes temporary orders are all that are required to alleviate the immediate crisis and prevent harms to the individual or to others.

When ex parte orders are issued or in cases where risk may be viewed as less immediate, a subsequent hearing will take place to further assess dangerousness and determine whether a longer-term order should be issued. At that hearing, the petitioner will be required to testify and present evidence why the order should be issued. The person who is the subject of the petition must be given notice of the hearing and provided with an opportunity to present evidence that he or she is not dangerous and that an ERPO should not be issued.

When the court determines, based on the evidence presented, that the order should be issued, it typically lasts for up to one year. At the end of this period or earlier if the respondent provides evidence satisfying the court that he or she is no longer dangerous, the firearms must be returned. Most state laws also include provisions permitting petitioners to file requests to renew orders if they believe the person remains dangerous and should continue not to have access to firearms.

NAMI’s position on ERPOs

NAMI supports state laws authorizing ERPOs when they are carefully crafted to focus on evidence-based risk factors for violence. ERPOs provide legal mechanisms for family members or law enforcement officers to petition courts for the removal of firearms from people whose actions or statements raise concerns about potential for violence towards themselves or  others. The criteria for issuing ERPOs in state laws are based on specific, real time behaviors rather than categorical assumptions based on past events, such as civil commitments, that may or may not reflect the person’s current state of mind. When properly utilized, they can be potentially lifesaving, particularly in preventing suicides, which are frequently impulsive acts.

To maximize the positive impact of ERPOs and to prevent unintended consequences or abuses of these laws, we offer the following six recommendations.

First, state ERPO laws should emphasize that determinations of risk should be based on individualized assessments rather than stereotypical assumptions about specific groups of people that are not grounded in evidence. For example, as clarified earlier in this testimony, an individual’s history of mental illness or specific diagnosis is not a good predictor for violence. It is therefore neither necessary or appropriate to specifically identify mental illness as a risk factor in state or federal laws. Doing so reinforces historical stigma and prejudice towards people with mental illness, without providing useful guidance on how to accurately assess potential risk factors.

Second, as with any deprivation of individual liberty, it is very important to ensure that subjects of ERPO petitions are afforded due process protections, including whenever possible notice  that a petition has been filed and a hearing scheduled, the right to present evidence in one’s own behalf, and the right to periodic reviews to assess whether it is necessary to continue the order.

Third, law enforcement officers assigned responsibility for removing firearms from individuals subject to ERPOs should receive training on crisis de-escalation and crisis intervention. The removal of firearms from individuals who are reluctant to give up their guns or who are in crisis can be difficult and even potentially volatile. In such situations, protecting the safety of officers and the individuals they are responding to is of paramount important. The nationally recognized Crisis Intervention Team (CIT) model is a proven best practice for training first responders on crisis intervention and for linking those people who require mental health care with needed services and supports.viii

Fourth, the use of stigmatizing language and terminology should be avoided in writing or describing these laws. Terms like “Red Flag Laws” risk increasing stigma towards people who have been historically marginalized and subjected to prejudice and discrimination, such as people with mental illnesses. Perhaps the most blatant example is the term used to refer to mental illness in the federal law authorizing the NICS system, “adjudicated as mentally defective.” Terms such as these are offensive and upsetting to people with mental illness and may even indirectly reinforce perceptions that mental health care should be avoided because of potentially adverse consequences.

The term “Extreme Risk Protection Order” is both less stigmatizing and more accurately describes the purpose of these laws, which is to reduce risks and save lives.

Fifth, authority to initiate petitions for ERPOs in state laws should be expanded to include health care professionals. Most existing laws currently limit standing to petition for ERPOs to law enforcement officers and (in some states) family members. While NAMI respects the importance of protecting the therapeutic alliance between health care professionals and their patients, we also recognize that these professionals are often best positioned to recognize crises situations and when their patients are at risk of harming themselves or others. Although laws such as HIPAA and state confidentiality statutes set forth privacy protections, they also contain exceptions that permit communicating information when necessary to protect the safety of individuals or the public. Adding health care professionals to the list of those with authority to initiate petitions should not establish a mandate, but rather create an option for practitioners to act when circumstances so dictate.

Finally, if ERPOs are to be successfully implemented, it is necessary for states to expend resources on educating key stakeholders, including law enforcement, families, and others, about these laws and how to utilize them. Funding for training and the development of written resources for law enforcement, lawyers, judges, health and social service providers, and family members is necessary. Public education about the availability of these laws and how to use them will also be important, as will be technical assistance on the ground. The implementation of laws authorizing ERPOs will only be effective if assertive efforts are undertaken to educate stakeholders about these laws and provide training and technical assistance on how to use them.

Thank you for this opportunity to testify about ERPOs and their implementation in states. I look forward to your questions.

 

i J.Swanson, E. McGinty, S. Fazel and V. Mays, “Mental Illness and Reduction of Gun Violence and Suicide: Bringing Epidemiologic Research to Policy,” Annals of Epidemiology, 25 (2015), 366-376.

ii For more information about risk factors for gun violence and suicide, see J. Swanson, E. McGinty, et. al., “Mental Illness and Reduction of gun violence and Suicide: Bringing epidemiologic research to policy,” Annals of Epidemiology, 25 (2015) 366-376; also The Educational Fund To Stop Gun Violence, “Guns, Public Health and Mental Illness: Summary of the Best Available Research Evidence,” Feb. 2018.

iii National Institute of Mental Health, Factsheet on Suicide, downloaded 3/23/2019, https://www.nimh.nih.gov/health/statistics/suicide.shtml

iv L. Shane III, “VA suicide rates for younger veterans increased by more than 10 percent,” Military Times, Sept. 26, 2018, https://www.militarytimes.com/news/pentagon-congress/2018/09/26/suicide-rate-spikes-among-younger- veterans/

v CDC Vital Signs, “Suicides Rising Across the U.S.,” June 2018, https://www.cdc.gov/vitalsigns/pdf/vs-0618-suicide-

H.pdf

vi J. Cavanaugh, A. Carson, et. al., “Psychological Autopsy Studies of Suicide: A Systematic Review,” 33 Psychological Medicine, 395, 395-405 (2003).

vii States with ERPO laws as of the date of this hearing include California, Connecticut, Delaware, Florida, Illinois, Indiana, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.

viii For more information about the CIT program, see http://www.citinternational.org/What-is-CIT

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Please note that the hearing below was held last March 

"I Cannot Get Her Life Back": Lawmakers Hold Rare Gun Control Hearing To Discuss "Red Flag" State Laws

By Grace Segers, Camilo Montoya-Galvez  CBS News March 28, 2019

Washington -- Lawmakers on Capitol Hill held a rare hearing on gun control Tuesday morning to discuss so-called "red flag" laws enacted in several states to allow courts to issue orders confiscating the guns of individuals who are deemed to be a risk to others or themselves.

The Senate Judiciary Committee, led by Republican Chairman Sen. Lindsey Graham, heard from policy experts, law enforcement officials and advocates -- including a parent who lost her 19-year-old daughter to a shooting -- during the public session.

Judiciary Committee Chairman Lindsey Graham concluded the hearing after all senators present had asked questions.

"I'm far more enlightened than I was before," Graham said, adding that he hoped Congress would be able to come to a bipartisan agreement to help implement red flag laws in states.

"I really can't see a reason why we can't pursue this at the federal level, to incentivize states," Graham said.

There are currently two bills in the Senate, one introduced by GOP Sen. Marco Rubio, of Florida, and one proposed by Democratic Sen. Dianne Feinstein, of California, focused on incentivizing states to implement red flag laws.

Ernst Asks About High Rates Of Veteran Suicides

Republican Sen. Joni Ernst, of Iowa, asked Ronald Honberg, the senior policy adviser of the advocacy group National Alliance on Mental Illness, about the propensity for veterans returning from combat and suffering from post-traumatic stress disorder to commit suicide using a gun.

"Many of our veterans, particularly our young veterans, have heroically defended our country and experienced horrific circumstances, and come back and need services and support," Honberg said, adding that it was important to de-stigmatize mental illness.

"We need to talk about mental illness not in terms of violence and criminality," Honberg said. He continued that it was important not to generalize about veterans and those suffering mental illness and their likelihood of committing gun violence, but to look at cases individually to determine whether a person should have his or her firearms taken away.

Protester Interrupts Ted Cruz

When Republican Sen. Ted Cruz began his questioning, a protester stood and yelled for Cruz to "end gun terror."

"Thank you Jacinda Ardern!" The protester, a woman, shouted as she was escorted out of the hearing room, referring to the prime minister of New Zealand who announced a ban on assault weapons after a mass shooting killed 50 people earlier this month.

"People are dying and you're killing them!" The protester yelled at Cruz, presumably for his lack of support for banning assault weapons.

Florida sheriff: "It's imperative that you don't just rely on law enforcement"

Ric Bradshaw, the sheriff of Palm Beach County, urged lawmakers to ensure that mental health professionals be involved in any process of removing firearms from those who are a threat to themselves or others.

"It's imperative that you don't just rely on law enforcement," Bradshaw said. Although he said that officers involved in removing firearms often have training in crisis management, clinicians and mental health experts should also be involved.

Dave Kopel, the research director of the Independence Institute and a gun rights advocate who supports red flag laws, warned that mental health professionals should be involved in the decision to remove firearms, to ensure that people's weapons are not removed without due cause.

"Without good due process, this process could be abused," Kopel said.

Honberg pointed out that it's more common for people with mental illness to commit suicide with a firearm than to perpetrate violence against others.

"It's very important that we not conflate mental illness with criminality," said Honberg.

Witnesses Give Opening Statements

Among the first recommendations was one that embraced the idea behind red flag laws but not the term "red flag." Ron Honberg, senior policy adviser of the advocacy group National Alliance on Mental Illness, suggested that "terms like 'red flag' laws should be avoided." Using the phrase "red flag," he said, indicates that mental illness is a red flag, which would stigmatize mental illness as inherently violent.

Amanda Wilcox, the legislation and policy chair for the California chapters of the Brady Campaign to Prevent Gun Violence, spoke about her daughter Laura's death in a shooting in 2001. Laura was 19 years old. Wilcox said that red flag laws could have prevented Laura's death, as the shooter's family, girlfriend and caseworker had been concerned about him.

Wilcox said that these laws could "save lives every day," noting that firearms could be returned to people.

"One can always give the gun back. I cannot get her life back," Wilcox said about her daughter Laura.

Dave Kopel, research director of the Independence Institute and a gun rights advocate, offered another perspective, describing his opposition to red flag laws which are too strict. He advocated on behalf of individuals' rights to due process, and to defend themselves against having their firearms confiscated without sufficient cause.

"Federal funding should support best practices, and not the worst," Kopel said.

Feinstein Touts Positive Results Of California's Adoption Of Red Flag Law

In her opening statement, Judiciary Committee Ranking Member Dianne Feinstein discussed her proposed law, the Extreme Risk Protection Order Act of 2019, which would provide grants to incentivize states to adopt red flag laws.

Feinstein cited the example of Nikolas Cruz, the shooter who killed 17 people in Marjory Stoneman Douglas High School in Parkland, Florida, last year. Cruz had shown warning signs of violence prior to the shooting. Florida adopted a red flag law soon after the shooting.

Feinstein noted that San Diego has confiscated 318 firearms, including several automatic weapons, under California's red flag law. She expressed her regret that Congress had not taken more action to prevent gun violence until now.

"I though that the Sandy Hook shooting was a moment when Congress would step up and take action," Feinstein said, referring to the shooting at an elementary school in Connecticut which killed 27 people, including 20 children. She compared the American response to that of New Zealand, which banned automatic weapons six days after the massacre of 50 people earlier this month.

"I am hopeful that Congress will once again find the courage to do what's right," Feinstein said.

Graham Begins Hearing: "Nobody Is Going To Come And Take Your Guns"

Judiciary Committee Chairman Lindsey Graham began the hearing by praising Democratic Sen. Richard Blumenthal for his efforts in trying to pass gun control measures. Connecticut, Blumenthal's home state, is one of the state to enact a red flag law.

Graham said that red flag laws did not violate the Second Amendment, but allowed family and friends to petition a judge to remove firearms from a person who poses a risk to themselves or others.

"Nobody is going to come and take your guns," Graham said, "But at the same time, every right has limits."

"We're trying to balance the right to own a gun under the Second Amendment with mental health issues," Graham continued. He cautioned against passing a federal red flag laws.

"I think passing a federal law is more than the market can bear," Graham said, but said Congress may be able to create incentives for states to pass their own red flag laws.

Activists Fill Hearing Room

Activists from groups such as the Brady Campaign to Prevent Gun Violence and Moms Demand Action crowded inside the hearing room in the Dirksen Senate office building, attending to show their support for enacting gun control legislation.

Renata, an intern with the Brady Campaign and a senior at the State University of New York in Albany, told CBS News that she was attending the hearing to raise awareness about how gun violence affects the African-American community.

"As a person who grew up in that community, it's only right to come and make a direct impact, and force our lawmakers to pass commonsense gun laws," Renata said.

Mary Wright Baylor, an activist with Moms Demand Action in the Burke Fairfax chapter in Virginia, said that she was attending to show support for red flag laws, which she called the "easiest and most commonsense" gun control measures to enact. She also said that she was a survivor of gun suicide, and understood how "the despair of gun violence shapes lives."

"Let's take guns away from people who a risk to themselves and to others," Baylor said, adding that she hoped this hearing would "move the needle" on gun control.

"This is going to be a matter of changing the culture and persuading people to see the big picture," she said.

What Are "Red Flag" Laws?

Sometimes called "extreme risk protection order" laws, "red flag" laws are designed to allow family members or law enforcement officials to go to a state court and ask a judge to issue an order that confiscates the guns of an individual who they believe poses a threat to their safety.

Those seeking the restraining order must present evidence to the court as to why the individual poses a threat to others, as well as to himself or herself. If a judge agrees to write the order after holding a hearing, the guns of the individual would be removed on a temporary basis.

There are currently 14 states which have implemented red flag laws, and more than two dozen legislatures considering this measure.

Who Is Testifying?

The senate panel will hear from a group of five policy experts, local law enforcement officials and advocates, including a parent who lost her daughter to a shooting. They are:

Ronald Honberg, senior policy adviser of the advocacy group National Alliance on Mental Illness

Amanda Wilcox, legislation and policy chair for the California chapters of the Brady Campaign to Prevent Gun Violence. Wilcox's 19-year old daughter, Laura, was shot to death at a Nevada mental health clinic in 2001

Ric Bradshaw, Palm Beach County Sheriff

Kimberly Wyatt, prosecuting attorney at the King County Prosecuting Attorney's Office

Dave Kopel, research director of the Independence Institute and a gun rights advocate

Gun Control: A Contentious Issue In Congress

Gun control has long been a highly contentious issue in Congress. Despite multiple mass shooting in which individuals have used high capacity, military-style weapons to kill dozens -- from elementary school students at Sandy Hook in 2015, to revelers in an Orlando nightclub in 2016 -- no federal gun control measures have passed in recent years. 

Democrats have embraced gun control as one of their top legislative priorities, with many gun control advocates like Georgia Rep. Lucy MacBeth, whose 17-year-old son was shot to death in Florida, winning competitive suburban districts during the November midterm elections.

Most Republicans, meanwhile, continue to oppose any weapons ban, citing the "right to bear arms" enshrined in the Second Amendment. Democrats have accused their congressional colleagues in the GOP of being beholden to the powerful National Rifle Association (NRA).

The "red flag" proposals, however, have garnered bipartisan support in Congress, including from Sens. Marco Rubio of Florida and Lindsey Graham of South Carolina, who agreed to hold Tuesday's hearing.

https://www.cbsnews.com/live-news/red-flag-gun-control-bill-house-judiciary-hearing-watch-live-stream-today-2019-03-26/