The reality of school shootings has lived in parents, teachers, and students in the United States for the past two decades. Schools in America during that period have been infected by the gun violence epidemic in the form of firearm suicides, unintentional discharges, assaults, homicides, and mass shootings. Many school-going children are suffering from the consequences of gun violence due to the complacency of relevant stakeholders to address the root causes. Many stakeholders privy to this issue have also failed since the solution to gun violence in schools is not a responsibility of one level or one entity of government. On this gun violence issue in schools, there is a responsibility for everyone; the community, researchers and experts, family and friends, the federal government, state governments, prosecutors, law enforcement agencies and individuals (both legal and non-gun owners). Key to reducing the risk of gun violence in schools is enacting ‘red flag laws’ also known as ‘extreme risk laws.’ The laws are anchored on the notion that family, friends, and authority have the ability to notice warning signs when a person is in crisis and contemplating causing harm. The laws require that those able to and that have noticed warning signs from people capable of causing harm use intervention measures to prevent such persons from accessing firearms. Intervention measures have proven to be effective and saved American students from gun violence such as mass shootings or suicide. Enacting red flag laws or extreme risk laws is a criminal justice policy for effectively reducing the risk of gun violence in American schools.
Keywords: Judicial Policy, Gun Violence, Mass Shootings, Firearm, Red Flag laws, Gun Control, Active Shooter.
Red Flag Laws will Reduce the Risk of Gun Violence in Schools
One of America’s most pervasive societal and public health issue is gun violence. In the United States, an average of 125,000 people on average become victims of gun violence. Almost every day, people across the country over are compelled to grapple the effects of gun violence while the media is filled with stories of gun homicide, suicide, and mass shootings. Gun violence injures and claims approximately 340 lives on a daily basis. Schools aren’t spared from this scourge either. At least seven kids and teenagers lose their lives to gun violence from the 47 children and teenagers that are shot each day. These statistics make gun violence a problem in the country that requires policy intervention.
In all American schools, gun violence has no place. The devastating effect guns have in schools cannot be doubted as demonstrated by tragedies from various learning institutions across the U.S. such as Virginia Tech, Columbine, and Sandy Hook. Many have called for the arming of teachers and students, a move that may cause more gun-related injuries and deaths. Students and other persons (teaching and subordinate staff) conduct their business in a safer environment through the implementation of laws that prohibit guns in schools and impose tough penalties for the acquisition and possession of guns. The presence of guns in learning institutions can impede the candid discussion that is fundamental to the learning experience besides burdening the First Amendment’s right to academic freedom of speech. The enactment of Red flag laws would ensure that guns do not find their way into learning institutions and that even licensed gun holders would be barred from misusing their firearms.
To keep the schools free of gun violence, stakeholders need to take meaningful and lasting action. Meaningful and lasting action can only be guaranteed by a legislative process such as the enactment of extreme risk laws. The school community needs to prevent and intervene in the school-based gun violence problem. This can only be realized if the leaders adopt a multi-faceted strategy that will equip the school fraternity with the required tools to make learning institutions a safer place. Of all the proposed solutions to securing learning institutions, legislative measures are the most effective as opposed to arming teachers which could be counter-productive. Red flag laws eradicate or at the worst limit the presence of firearms in a school setting.
There have been clear warning signs in many instances of gun violence that the perpetrator poses a significant threat before firing. Before such warning signs escalate into tragedies, red flag laws give law enforcement and family members a way to intervene and prevent an attack. These laws temporarily remove firearms from dangerous situations by allowing law enforcement, immediate family members, or people around to petition a court for an order. The order, for as long as it is in effect, bars a person from acquiring or possessing a firearm if the court has sufficient evidence to believe, or if in its opinion has reasons to believe that a person poses serious risks of injuring themselves or others. Under such circumstances, cases of gun violence in the form of suicide or mass shooting could be prevented in schools.
There are persons under several categories who are prohibited from acquiring or possessing firearms under the current federal law. Mentally ill people, those with a criminal record, convicts, etc. are prohibited from acquiring and possessing firearms. A person would be legally able to acquire and possess firearms if they don’t belong to any of the categories or otherwise prohibited under current federal law despite displaying warning signs of contemplating suicide or other acts of violence. As such, there is a lacuna in law that could be filled by the red flag laws and help create a safer and conducive learning environment in schools.
To address gun violence in all its forms in America schools, this study provides a research-informed, and proactive remedy to prevent and more broadly address active shooter situations. The study focuses on a policy that intervenes in the act of violence before it occurs. Enacting sensible laws that prevent shooters from laying their hands on guns is the first and most fundamental step to preventing and ending incidences of gun violence in schools. Red flag laws otherwise known as extreme risk rules will temporarily prevent access to firearms for as long as law enforcement agencies or people around notice and act on warning signs of violence from possible perpetrators.
Gun violence besides schools affects many other disciplines. Besides being a crime problem, it is also classified as a social, economic, and health problem that calls for effective and lasting solutions. Community engagement initiatives, research, and education, violence prevention, enforcement, and prosecution must be encompassed in strategies and programs that target gun violence. However, before the above stated are realized, there has to be legislation in place to prevent gun violence, especially in schools. Red flag laws have been tested in various states and found to have reduced the cases of gun violence in schools. It is critical as such that these laws be enacted across the United States to ensure the safety of millions of American students and save their parents, teachers, and loved ones from unnecessary grief.
Review of the Literature
The myriad of ways through which gun violence takes place in American schools has been documented in many studies and databases. All cases of gun violence on learning institutions have been tracked and recorded for the past 20 years. Almost 16,000 children and teens in American schools are shot and injured every year with approximately 3,000 children losing their lives as a result of gun violence. The shootings that happen every year in American schools expose an estimated 3 million children. The shootings have a devastating impact on the communities around, homes of the affected children, and all that witnessed the shooting. The effects may include but not limited to indulgence in criminal activity, difficulties in learning, failure in academics, posttraumatic stress disorder, anxiety, depression, and drug substance abuse. The definition of gun violence in this context refers to the discharge of live rounds of ammunition by a firearm inside or from outside into a library, hall, laboratory, classroom, dormitory, playground, or any school proximity. School in this instance refers to an institution of learning such as colleges, universities, high schools, middle schools, or elementary schools.
The cases of gun violence recorded in schools especially during the last seven years warrant a response from stakeholders. Recorded incidences of gun violence on school grounds are estimated to be over 400. At least 220 deaths resulted from these cases during that period with over 110 injuries recorded from the incidences of gun violence that took place in elementary, middle, or high school grounds. Many other documented cases of gun violence have taken place win institutions of higher learning with a significant number of injuries and lives lost. These incidents are not commonplace especially the recent mass shootings at Santa Fe, parklands, and Sandy Hook that barely represent one percent of the total cases of gun violence in schools. It is important that the government and other relevant stakeholders respond to these cases by enacting legislation that will limit the access of firearms, especially by the school community.
Enacting red flag rules have proved effective in curtailing the effects of gun violence in schools. Many forms of gun violence are recorded in learning institutions across the country. These include suicide and self-harm deaths using guns, unintentional discharges resulting in injury, assaults, and homicide. All of these cases of gun violence directly impact the social and emotional development of students and learning outcomes since they compromise on the safety of the schools regardless of their victim count or intent. Everything from performance on standardized tests to overall enrollment numbers, and the ability to maintain attention are affected by the lingering trauma from exposure to gun violence as evidenced by a growing body of research. A broader platform of solutions is required to address all of these effects starting from the enactment of red flag laws.
Red Flag Laws/Extreme Risk Protection Laws
Law enforcement agencies, friends, or family members in most instances of gun violence noticed warning signs of a perpetrator at risk of causing harm either to themselves or the people around them. States have begun enacting a lifesaving mechanism, in response to these tragedies, that can prevent incidences of gun violence before they occur. Before a person with warning signs can get to the point of orchestrating an incidence gun violence, red flag laws allow law enforcement, close friends, or household members to temporarily bar such an individual from accessing firearms. Before gun attacks in various schools such as the incidences in Isla Vista and Parkland, the attackers portrayed threatening behaviors and warning signs just like many other high-profile mass shooters. Many states have no clear process to restrict the access of firearms to such attackers in as much as family members and friends of these shooters in most cases have admitted to contacting law enforcement.
A court can temporarily restrict an individual’s access to firearms through the Red Flag law. All it takes is for law enforcement officers, household members, or families to petition a court directly to obtain an extreme risk protection order. The person will be barred from acquiring or possessing a firearm for as long as the order exists. These laws allow people to take concrete steps to disarm one who displays warning signs before he/she commits acts of crimes that may result in loss of lives and multiple injuries. The people around the probable shooter highly influence the success of red flag laws.
Red flag laws proactively intervene and keep those at risk of injuring themselves and hurting those around them away from the reach of firearms. They create a tool that legally empowers families, household members, close friends, and law enforcement officers to use certain force as allowed by law to restrain an individual with warning signs from accessing firearms thus saving lives and avoiding possible cases of suicide during desperate periods. Red flag laws have proved to be extremely effective in preventing gun-related violence in schools in Indiana and Connecticut (Morall, 2018). Extreme risk laws have significantly prevented gun homicides and mass shootings in schools owing to their proper implementation. Individuals that have made credible and evident threats of gun-related violence have been disarmed in various states across the country using red flag laws.
Extreme risk protection orders in some jurisdictions have been referred to as ‘danger-based eradication’ provisions. This is because they are drafted and design to temporarily keep firearms away from people posing threats and dangers to themselves and those around them. Research has demonstrated through evidence the psychological and mental traits possessed by a person at an increased risk of harming him/herself or injuring and even killing those around. When enforcing these laws or seeking an extreme risk protection order, the petitioners need to present this evidence in court for consideration. It is for the court to establish whether such evidence attains the threshold required to warrant extreme risk protection orders against the accused. The court factors in the following when determining whether or not to grant prohibition orders against acquisition and possession of firearms:
- A pattern or sequence of violent acts especially those relating to firearms within the past one year.
- Whether the person belongs to any category of those prohibited by law from acquiring or possessing a firearm.
- Assessment of the past six months regarding a violation of an effective domestic risk protective order.
- At the time of when the court is determining the petition, the violation (or lack of it) of an effective domestic protective order that is in force.
- Acts of violence or threats to innocent or unarmed people within the past 12 months.
Many stakeholders are involved in the enactment of red flag laws since gun violence in schools does not discriminate. Gun violence in schools is blind to differences in skin color, religion, ethnic alignment, and wounds the rich and the poor. Gun violence randomly and purposefully strikes schools both in cities and rural areas. It operates throughout the community. As a result, participation in enacting extreme protection laws requires the involvement and input of all stakeholders ranging from all three levels of government, government departments such as the Department of Homeland Security and the Department of Justice, health and social service agencies, civic organizations, faith communities, businesses and households to successfully prevent gun violence in schools. Good leadership is required to coordinate these stakeholders together with the resources required to implement the Red Flag law. A successful partnership between the stakeholders allows for the sharing of accomplishments, resources, and invites multiple perspectives.
Besides the red flag laws, two other justice policies have been implemented to curb the scourge of gun violence in schools. These are the firearm storage laws and an increase in the minimum age required to acquire and operate semi-automatic firearms.
Firearm Storage Laws
In most incidences of gun violence especially where the accused is a minor, the source of the gun is usually the home. Unsurprisingly, there is at least one loaded and an unlocked gun in homes of approximately 4.5 million with school-going children. In order to restrain children in these homes from accessing firearms, it was necessary to enact child access prevention laws commonly known as responsible firearm storage laws. Firearm storage laws require that firearm holders keep their weapons where they cannot be accessed by unauthorized persons for criminal activities. Under these laws, the person under whose ownership of a firearm lies is liable to a criminal offense in the event that his/her firearm is used to cause arm have adequately failed to store it. Most states have enacted the firearm storage laws.
Increase of the Minimum Age to Acquire and Possess Firearms
Most perpetrators of gun-based violence in schools are school-aged. According to police investigations and studies, most active shooters are aged between 18-22 years and have a connection to the school. In order to reduce the cases of gun violence in schools, many states enacted laws that limit minors from acquiring and possessing firearms by increasing the minimum age required to purchase, own, and operate handguns and semi-automatic rifles and shotguns. As such, school-going students below the age of 21 years cannot easily obtain firearms thus reducing the cases of gun violence perpetrated by minors. A licensed gun dealer, as a result, cannot sell handguns and semi-automatic rifles and shotguns to persons under the age of 21 years.
To prevent violent situations, the law figured out critical intervention tools known as ‘red flag laws.’ A family member or law enforcement officer can proceed to court and seek a civil restraining order acting on information that an individual has access to firearms and is a risk to him/herself and the people around. Commonly referred to as extreme risk protection orders, these red flag orders can only be issued after the court is satisfied that indeed the person in possession of a firearm or with access to a gun is actually a risk to him/herself or the people around. A person is prohibited from acquiring new guns and compelled to relinquish any firearms in their possession once an order has been issued. The order lasts up to 12 months since it is temporary but can be extended if warning signs are visible on the individual posing risk.
The Red flag law was discussed by the U.S. Congress in January 2019. The law began as an idea after a mass shooting at a school in Parkland in 2018. The bill was first introduced by Mr. Rubio and read twice before proceeding to the Committee on the Judiciary (committee stage) (Congress.Gov, 2019). The bill was then put on the calendar for debate, necessary amendments and vote after it was released by the committee. The bill then proceeded to the Senate after its passage by a simple majority during the vote. Upon reaching the Senate, another committee took up the bill then debated and voted for it whereby it was passed after receiving simple majority support. Thereafter the differences in the bill between the versions of the Upper and Lower Houses were worked out by a conference committee with members from both houses. The committee then submitted the worked-out version to the two houses for approval. The bill was passed on February 27, 2019. The president then assented to the bill ten days after the Government Printer printed the final copy. The extreme risk protection bill has been enacted and is in force in some states. It is yet to be enacted as federal law.
The main agency involved in the enactment of the extreme risk protection bill is the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The Bureau of Alcohol, Tobacco, Firearms, and Explosives safeguards people from among other things illicit acquisition, possession, and use of firearms (ATF, 2019). The agency works with other stakeholders in the education sector to ensure cases of gun violence in schools are contained. The Federal Bureau of Investigations also works closely with ATF in coming up with ways of reducing gun violence by storing data that is used for decision making. Advocacy organizations such as the Second Amendment Foundation, Gun Owners of America, and National Rifle Association (NRA) serve to educate licensed firearm owners on the correct usage and storage of the firearms. They also add their input to the bill through public hearing then recommend their views to the relevant house committee for consideration. The common agenda among all these agencies is to tighten gun safety laws.
The red flag laws are implemented through the courts at the state level. Once an interested person has sufficient reasons to believe that an individual in possession of a firearm poses danger, he/she can petition the court to issue prohibition orders against the acquisition and possession of a gun. The person then submits evidence in court for review. If the evidence meets the set threshold for danger or threat within the person exhibiting warning signs or those around him or her school community), the court will issue orders prohibiting such a person from acquiring a firearm. The accused if already in possession will be required to surrender the firearm. The orders are effective immediately and in force for a period of 12 months.
Red flag laws impact three categories of people. The first are the law enforcement officers, family members, or people around who notice warning signs. These are the people required to seek prohibition orders through the legal justice system. The second category is the person(s) posing the danger to him/herself or the school community. This is the accused who’s expected to withdraw his/her firearm ownership rights. The third category is the school community that is at risk of gun violence. In case the person perpetrator is not denied access to a firearm, injuries or even deaths could result from the intended criminal actions. As such, the red flag laws protect the school community.
The extreme risk protection order has achieved the desired results in states where it has been implemented. It has been an important element in preventing cases of gun violence in schools since in most cases perpetrators can be detected. In many school communities, red flag laws have intercepted cases of gun violence before they happen. A recently passed Red Flag law in Maryland according to leaders from the state’s law enforcement authorities has been used to prevent over five instances involving significant threats in schools. Several cases of gun violence against schools have been prevented in Florida since the implementation of Red Flag law in 2018 including one whereby a potential school shooter wanted to kill people for fun as and another where a male student wanted to kill an ex-girlfriend threatening to kill himself thereafter. These pieces of evidence demonstrate that the law has achieved desired results in jurisdictions that have implemented it.
Had I been one of the policymakers involved, I would have ensured that the law is implemented and binds all states through a federal decree. The law has proved to be effective against gun violence in schools yet only 16 states have implemented it. Following the enactment of the law, various forms of gun violence in learning institutions has decreased by at least 19% especially homicide and suicide. The firearm suicide rate reduced by 7.5% in Indiana following the enactment of the Red Flag law. I would ensure the public gets to know of the Red Flag laws through civic education then ensure all states have implemented the laws to ensure gun violence in schools becomes a thing of the past.
Over the past decade, there have been numerous cases of gun violence in schools. Over 3,000 students have lost their lives while 16,000 others end up injured as a result of gun violence. The incidences of gun violence affect mostly students from elementary, intermediate, and high schools. To end this scourge, it was critical that the relevant stakeholders come up with effective criminal justice policies that would guarantee safety in schools. It follows as such that Congress passed the Red Flag law and has been adopted by several states. The law requires that persons accused of posing threats to themselves of those around be prohibited from acquiring or possessing firearms by court order. The law has been effective in reducing the number of gun violence incidents in schools in states that it has been enacted.
Further research needs to be conducted to draw the line between criminal and civil legal actions regarding the red flag laws. The law may be subject to abuse by a law enforcement officer in contravention of the fifth and 14th Amendments of the U.S. constitution if not defined along criminal or civil lines. If rendered a criminal law, police officers may violate the rights of ownership by obtaining orders and confiscating firearms without following due process. If defined along civil lines, the petitioner may go to court and seek prohibitory orders ex-parte. That means that the accused will be prohibited from acquiring or possessing a firearm without facing his/her accuser. As such, further studies need to be conducted to define the law in a way that does not infringe on the constitutional rights of Americans.
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