Using ‘Red Flag’ Laws for Potential Firearms Threats on Campus

Here’s how campus public safety departments can ensure red flag laws are correctly applied and comply with the Second Amendment.
Published: February 10, 2023

November’s shooting at the University of Virginia highlights the ongoing concern of gun violence on campuses and the application of “red flag” laws to some of those cases. While it is possible to calculate the number of incidents on college campuses, it is even more difficult to calculate the number of threats received each year by threat assessment teams and behavior intervention teams.

In July 2020 a red flag law went into effect in Virginia (Virginia Code § 19.2-152.13. Emergency substantial risk order). The purpose of these red flag laws is to prevent a subject identified as a “near future” threat from purchasing or possessing firearms. Currently, 19 states have these laws, and when used properly, may mitigate immediate firearms-related threats to campus safety.

However, caution must be exercised before using red flag laws since they can potentially infringe upon a person’s Second Amendment rights. Creating a procedure guided by the law and devoting the resources for a thorough investigation can ensure these laws are ethically and correctly applied.

(Note : On February 2, 2023, United States 5th Circuit Court ruled [United States v. Zackery Rahimi USDC No. 4:21-CR-83-1] charges made under 18 USC Section 922(g)(8) is an “outlier that our ancestors would never have accepted. Therefore, the statute is unconstitutional.” This statue relates to court orders restraining a person from harassing, stalking, or threatening an intimate partner.

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Most state red flag laws are connected to 18 USC Section 922(g)(4): It is unlawful to possess a firearm by any person “who has been adjudicated as a mental defective or who has been committed to a mental institution.” Although a comprehensive investigation by law enforcement does not equate to a mental adjudication, it serves the same goal of societal protection. The constitutionality of red flag laws will undoubtedly be addressed in future court cases.)

Investigations Must Be Independent, Held in Neutral Location

Like other states, Virginia’s law requires an independent investigation by law enforcement to determine if the grounds for an Emergency Substantial Risk Order (ESRO) exist. There must be probably cause showing an act of violence, force, or threat is “near future.”  A petition is completed, and the investigation’s findings are presented to a magistrate. If a magistrate determines probable cause exists, an ESRO is issued.

The required independent investigation is similar to a thorough background check on an applicant. A subject’s background information, such as previous mental health incidents, access to weapons, and the ability to carry out a threat must be examined. The investigator must determine the nature of the threat, how it was conveyed, who heard it, and other investigative details.

The subject’s interview should take place at a neutral location. Since this is not a criminal investigation, Miranda Warnings are not required, but crimes could be uncovered during the investigation. Consensual interview techniques in a neutral location make any confession to a crime admissible, even without a Miranda Warning.

This is an interview and not an interrogation; the focus of the interview is to determine if an immediate threat to public safety exists. This interview could also assist in determining if services, such as mental health evaluation and treatment, are needed.

Comprehensive investigation diligence is paramount, but time is also needed to properly conduct an investigation. While accurate investigations take time, the need to obtain the necessary information to obtain a red flag order puts pressure on the investigator to complete the investigation. Other processes, such as court-ordered mental health evaluations, may buy the investigator additional time.

A Real-World Example of the Appropriate Use of Red Flag Laws

Officers from my agency were called by a group of students concerned by the statements and behavior of another student. A police officer responded and interviewed the reporting students. Information was gathered, a report was completed, and the threat assessment team was notified.

Immediately after the initial report was completed, an investigator was assigned to the case. A new call for service with a separate case number was opened for the independent investigation.

The investigator interviewed the students to gather further information, to include the actual words used by the subject, the names of each person who heard the threat, and how the threat was communicated.

During the investigation, female students came forward stating the subject made them feel uncomfortable due to that person’s aggressive behavior towards them (the investigator notified Title IX). The investigation validated the threat with evidence showing the subject requested the location of the closest gun store and stated they wanted to purchase a gun and shoot people on campus.

The investigator also interviewed the subject’s parents who related the student had a history of mental illness, was on medication, and routinely received counseling.  According to the parents, there were no weapons in the residence, and the subject did not have access to any.

The State Police were contacted and confirmed the subject had not recently purchased a firearm and did not have a concealed carry permit.

A records check revealed the subject’s involvement in several mental health calls, including suicide attempts, and temporary detention orders.

The investigator interviewed the subject. During the interview, the subject related thoughts of purchasing a firearm and shooting people. The subject did not to appear to be in crisis at the time of the interview but underlying mental health issues existed, which were noted in the investigation.

The subject admitted to being in a “manic” state when they made the statement to the other student and, further, when in a “manic” state, the subject is usually not aware of their subsequent actions. During the interview the subject was not in a “manic” state and had no plans to harm anyone.

The investigator completed a petition for an ESRO, along with an accompanying affidavit. The documents and probable cause were presented to a magistrate, and the ESRO was issued.

Grounds to detain the subject for a mental health evaluation did not exist since the subject was not in crisis during the interview. The parents told the investigator they were going to contact the subject’s counselor.

The school’s threat assessment team conducted its own separate investigation and directed that the subject was restricted to online classes and could not return to campus in person.

Follow-up Is Needed After ESROs Issued

Issuance of a red flag order does not end the case. Even a subject who cannot purchase or possess a firearm may still be a threat. Other measures must be taken to ensure safety for the campus community, including the subject. These measures, such as mental health evaluations, trespass notifications, and notifications to local jurisdictions, must be part of an overall threat mitigation plan.

By strict adherence to the law and a thorough independent investigation, red flag laws can provide a tool to reduce threats to the community while protecting a citizen’s Second Amendment rights.

Lieutenant Matthew Borders is a police lieutenant in one of the largest colleges in the U.S. He has 23 years of law enforcement experience in state, local, and college agencies. Currently he serves as a Support Services Lieutenant, overseeing the department’s the Criminal Investigative Division.  Lieutenant Borders has been a Department of Criminal Justice Services-certified General Instructor since 2004 and a certified firearms instructor since 2009.

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