"He had mental health issues - so how did he get a gun?" Here's why "red flag" laws are really so complicated.

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People want to know how mentally ill offenders obtain firearms or why firearms were not confiscated.

Five point seven percent out of 25 million potential firearm applications were denied for “mental health commitments or adjudications” in 2020.

This article explains the complexities of mental health, access to firearms, shootings, and mass shootings on a national scale. It’s far more complicated than many think.

The focus of this article is state Red Flag laws confiscating firearms, “and” federal-state prohibitions as to purchasing a firearm, and how mental health issues apply.

The public seems to believe that anyone with a mental health issue should not possess firearms and is bewildered that the justice system cannot comprehensively address the issue. 

Per the recent mass shooting in Lewiston Maine where the offender had known mental health conditions, how could he have purchased a firearm? 18 people died. There were multiple warnings. He threatened to commit mass violence.

My analysis doesn’t apply to Lewiston or any other specific case. Rather, it addresses the wider issues of guns and mental health and the questions people have throughout the nation.

To my knowledge, no one has offered a comprehensive national overview of the complexities involved; the purpose of this article.

Note: There is an array of state laws that provide stipulations for firearm purchase prohibitions (links below). Because I do not know the provisions of every state law, I will be using the term “generally speaking” throughout this article.

The federal law as to firearm prohibitions is well defined.

There are separate state red flag laws confiscating guns for mental health and other reasons (i.e., domestic violence or potential suicides). States have individual requirements. Because I do not know the provisions of every state law, I will be using the term “generally speaking” throughout this article.

There are no federal red flag laws. However, on June 25, 2022, President Joe Biden signed the Bipartisan Safer Communities Act that included several changes to U.S. gun laws, one of which authorizes governments of individual states to receive grants from the federal government if they enact and enforce red flag laws.

A World Of Complexities

Anyone examining firearms and mental health is about to enter a world of complexities as to existing federal “and” state laws, the interpretation of those laws, Constitutional considerations, staffing issues of law enforcement agencies (thousands have left the job), the declining number of mental health professionals, court rulings and appeals, the problems with massive criminal history systems, and the immense dangers and manpower needs of enforcing red flag laws requiring the removal of firearms.

State Red Flag Laws-Mental Illness “And” Other Reasons

State Red Flag laws are also described as Extreme Risk Protection Orders or Extreme Risk Laws or Yellow Flag laws

When a person is in crisis and considering harming themselves or others, family members and law enforcement are often the first people to see the warning signs. Extreme Risk laws, sometimes referred to as “Red Flag” laws, allow loved ones or law enforcement to intervene by petitioning a court for an order to temporarily prevent someone in crisis from accessing guns.

Someone in crisis doesn’t solely apply to mental illness. When deciding whether to issue an Extreme Risk Protection Order (ERPO), courts should consider evidence-based criteria, not a mental health diagnosis, and whether the risk of violence is imminent. The evidence a judge may consider when issuing an order for firearm removal varies among states. It generally includes, but is not limited to:

Recent acts or threats of violence towards self or others.

History of threatening or dangerous behavior.

History of, or current, risky alcohol or controlled substance use.

Recent violation of a domestic violence protective order.

Unlawful or reckless use, display, or brandishing of a firearm.

Cruelty to animals.

Generally speaking, with red flag laws, what authorities need to remove firearms is adjudication. Someone in the judiciary needs to issue a court order to remove firearms based on an evaluation by mental health professionals “or” a preponderance of evidence that the person is a danger to themselves or others.

Every state has different stipulations. Per Wikipedia, “For example, in Indiana and New Mexico, only law enforcement may petition for an order. In contrast, in Oregon, any person living with the person of concern may file a petition. In New York, an order may be sought by a family member, a prosecutor or police official, a teacher, or a school administrator.”

Red flag laws are “designed to address crisis situations in which there is an acute concern about an individual’s access to firearms” but the specific provisions of such laws differ from state-to-state, varying on matters such as “who can initiate the gun removal process, whether a warrant is required, what factors the court must consider before ordering firearm removal, what must be proven in court, how long the firearms are restricted, and what process is used to restore the individual’s firearm access”

Nationwide in 2020, red-flag laws were used to remove guns about 5,000 times.

An April 2018 poll found that 85% of registered voters support legislation that would “allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others”

Generally speaking, when a red flag firearm confiscation is granted, the court issues a protection order that allows the police to confiscate the weapon(s) temporarily.  Gun(s) will be taken away depending on the circumstances surrounding their case. In the meantime, they will also be barred from purchasing or owning any firearms.

There are those who contest the Constitutionality of red flag laws.

Stopping Mentally Ill People (And Others) From Buying Firearms-Federal And State Laws

When it comes to mental illness, what “federal” authorities need to prohibit a firearms transaction or purchase is an involuntary commitment to a mental health institution, and even then, there are methods of treatment recovery (i.e., he is no longer mentally ill) that could allow that person to purchase or regain firearms.

Firearm prohibitions (at the point of sale) do not include a voluntary admission to treatment. He has to be ordered by a court. He has to be found to be a danger to himself or others by mental health experts.

The federal Gun Control Act (GCA) makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, to include any person:

Convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

Who is a fugitive from justice;

Who is an unlawful user of or addicted to any controlled substance; 

Who has been adjudicated as a mental defective or has been committed to any mental institution;

Who is an illegal alien;

Who has been discharged from the Armed Forces under dishonorable conditions;

Who has renounced his or her United States citizenship;

Who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

Who has been convicted of a misdemeanor crime of domestic violence.

The GCA also makes it unlawful for any person under indictment for a crime punishable by imprisonment for a term exceeding one year to ship, transport, or receive firearms or ammunition. 

Further, the GCA makes it unlawful to sell or otherwise dispose of firearms or ammunition to any person who is prohibited from shipping, transporting, receiving, or possessing firearms or ammunition.

State Laws

Many states have enacted prohibitions that mirror federal law in the areas of felony convictions, domestic violence, mental health, and drug addiction prohibitions.

Many states have expanded categories of prohibited people in key areas.

See a record of state probations of owning a firearm based on mental health.

For nearly 40 years, federal law has barred certain individuals with a history of mental health treatment from purchasing, receiving, or possessing firearms. State laws are a patchwork of different regulations, some much more inclusive than the federal statute, others that parallel it closely. In some states, such laws are nonexistent.

For the past 20 years, it has been possible to petition for relief from the federal prohibition; however, this is not the case with all state laws. The mechanisms for relief under state laws, when present, vary significantly, and not all require the input of a mental health professional or even of any physician.

Multiple Methods Of Obtaining Firearms

As anyone in the justice system will tell you, firearms from friends, associates, gun shows, auctions, social media, or criminals are readily available. CNN: And licensed gun shops aren’t the only places to buy a firearm. “You could buy guns from someone from an online classified ad, people at a yard sale or on the street corner selling guns, or people who are at a gun show but not a retail dealer,” all without having to pass a background check…”

Thus anyone, regardless of their background, could go to an auction or other sources and legally purchase a wide variety of firearms.

Finding A Person-Confiscating His Firearms-Record Keeping Systems

If you have a court order, law enforcement needs to find the person in question and locate his guns. As anyone in the justice system will tell you, people wanted for questioning or crimes can exist for years without contact or apprehension. I’m not sure that this could happen in small towns like Lewiston but it happens daily in urban areas.

According to the FBI’s National Crime Information Center, which police use for background checks on suspects, there are more than 789,000 outstanding warrants for felonies and serious misdemeanors filed in their system, but the actual number of warrants in the United States is much higher. This statistic indicates that finding someone (based on existing records) with mental health issues threatening violence can be a daunting task.

Readers need to understand that federal and state records of criminals are not updated by justice agencies. There are considerable gaps in the information provided. The person in question could be pulled over for a traffic stop or briefly held as police investigate a crime but when officers run his name through the National Crime Information Center or state repositories, the information “could” be incomplete or inaccurate. 

There are multiple agencies at various parts of the justice system that have access to criminal records and the responsibility for updating an offender’s status. There are times when records are not updated or not updated on a timely basis.

A Mental Health Condition Rarely Means Violence 

Twenty percent of all US adults have some form of mental illness, but very few of them have a mental illness that will increase their likelihood of violence,” Slate.

That means that tens of millions of Americans have mental health backgrounds.

We within the justice system have been told repeatedly that we have to be careful not to be overzealous when interacting with people with mental health issues. We have been told endlessly that the overwhelming majority of people with mental health backgrounds will not engage in violence.

The Number Of Firearms

There are 350 million firearms in the United States in private hands, see Washington Post. Some say that it’s closer to 400 million.

So we acknowledge that there are daily interactions between many thousands of people who have mental health backgrounds “and” have access to guns, and in the overwhelming majority of those interactions, nothing nefarious happens.

Summation From Rand On Mental Health And Violence

In the aftermath of acts of gun violence, questions often arise about whether the assailant had a history of one or more mental health conditions.

In 2018, more than 50 percent of Americans believed that people with schizophrenia and alcohol use disorders posed a danger to others, and 30 percent believed that people with depression posed such a threat.

Mental health conditions are diverse in both symptoms and severity, and these factors affect the likelihood that someone with a given condition has received a formal diagnosis and received treatment. Among adults with any mental illness, only 43 percent received mental health services. Among those with serious mental illness, only 64 percent received treatment.

Thus, diagnoses and treatment for mental health conditions should be considered imperfect markers of mental illness.

Mental Illness and Firearm Violence

In 2018, 18,830 people died by homicide in the United States, 13,958 (74 percent) of whom died by firearm (Centers for Disease Control and Prevention, 2020). Among 951 patients in a study sample who completed at least one follow-up interview within one year of discharge from a psychiatric facility, there were 67 acts of interpersonal gun violence perpetrated by 23 people.  This is arguably the strongest evidence in the United States to date suggesting that few people with mental illness are violent with firearms against strangers.

In conclusion, people with certain mental illnesses, notably schizophrenia and related psychoses, have a higher risk of committing violent crime than people without such illnesses do, but less than 1 percent are likely to commit a firearm-related offense.

Having a mental illness or a co-occurring substance use disorder (or both) is a poor predictor of dying by suicide or committing an act of interpersonal violence; the majority of people with these conditions do not exhibit these outcomes.

Numbers And Categories Of People Prohibited From Buying Firearms

Bureau of Justice Statistics Report

In 2020, almost 25.0 million applications for firearm transfers and permits were subject to background checks under the Brady Handgun Violence Prevention Act (Brady Act). This was a nearly 50% increase from about 16.7 million applications in 2019.

Approximately 400,000 applications were denied in 2020. From the time that the Brady Act went into effect in 1994 to 2020, almost 291.7 million applications were subject to background checks and about 4.4 million (1.5%) applications were denied.

The FBI received about 12.8 million applications in 2020 and denied 185,000 (1.5%), while state and local checking agencies received more than 12.2 million applications and denied about 212,000 (1.7%).

In 2020, state checking agencies denied 2.7% of purchase permits, 1.8% of instant checks, 1.2% of exempt carry permits, and 0.2% of other approvals.

Reasons For Firearm Denials

Across all checking agencies, state law prohibitions were the most common nonfelony reason for denial in 2020 (12.6%), accounting for 15.7% of denials issued by state checking agencies and 37.8% issued by local checking agencies.

Drug use or addiction accounted for 8.6% of denials overall in 2020, followed by misdemeanor convictions of domestic violence (6.5%) and mental health commitments or adjudications (5.7%).

About 5.1% of denials in 2020 were due to fugitive-from-justice status or warrants for arrest, 3.3% were due to protection or restraining orders, and 2.6% were due to illegal or unlawful entry into the United States.

Definitions-“Adjudicated As A Mental Defective”

USDOJ: A person is “adjudicated as a mental defective” if a court, board, commission, or other lawful authority has made a determination that a person, as a result of marked subnormal intelligence, mental illness, incompetency, condition, or disease: Is a danger to himself or to others; lacks the mental capacity to contract or manage his own affairs; is found insane by a court in a criminal case; or Is found incompetent to stand trial, or not guilty by reason of lack of mental responsibility.

A person is “committed to a mental institution” if that person has been formally committed to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment: To a mental institution involuntarily; for mental defectiveness or mental illness; or for other reasons, such as for drug use.

The term does not include a person in a mental institution for observation.


If you’ve gotten this far, you just waded through a bewildering array of federal “and” state laws that depend on the accuracy of vast and complex federal and state criminal record keeping systems.

Even if those vast systems were perfect for accuracy, there are endless ways that anyone can circumvent prohibitions as to buying or possessing a firearm or multiple firearms. I spoke to a family member who inherited a handgun and asked if it was a legal transition. Yes, it was.

We are dealing with law enforcement agencies that are losing thousands of employees. Even if there wasn’t a police staffing situation, you have to have a sufficient number of trained mental health professionals to correctly evaluate the individual in question when required.

Finally, even if the checks and balances were perfect, then law enforcement has to find this person and his weapons which could take a considerable amount of time.

Even if you know where the person is, you have to assemble a team of officers to knock on the door of a mentally ill person who may have violent tendencies and may be under the influence (not unusual) and enforce a court order for apprehension and/or confiscation of his firearms. This can be an extremely dangerous encounter. For many jurisdictions, this would require more police officers than those on patrol for the rest of their service area.

There are endless court rulings and battles examining the Second Amendment (and other provisions of the US Constitution) and the right to possess firearms, what kind of guns are illegal, or who can have them. It seems to change daily.

Keeping firearms out of the hands of mentally ill individuals who have expressed an intent to harm others is a wildly complex undertaking. Keeping firearms out of the hands of known criminals seems to be impossible.

Yes, generally speaking, when it’s abundantly obvious that a person struggling with mental health issues has firearms and has told others that he intends to do harm, the justice system will react quickly. But again, remember, we within the system have been told multiple times that mental illness and violence are rare events and that we should not be overzealous. 

But there are many variables to consider and the fact that something didn’t happen as designed (i.e., locating the person) does not surprise anyone in the justice system. People are demanding that the police operate with the precision of a mathematical formula when the obstacles can be very complicated.

Mass shootings (or shootings in general) are societal issues and government is challenged at multiple points in giving citizens the precision they seek.

It’s up to friends and family to keep firearms out of the hands of mentally unstable people through gun locks or other means. It’s up to friends and family to immediately convey threats of violence (or mass violence) to law enforcement.

Mental health treatment needs to be available and affordable.

There should be dedicated state mental health-police teams that can evaluate threats and immediately respond. Making evaluations or decisions within many law enforcement agencies can be a daunting and confusing task due to staffing, other priorities, or expert knowledge of laws.

This will cost federal and state governments an immense amount of money. But expecting an over-extended law enforcement system (that is losing thousands of cops) to immediately drop everything else and conduct an analysis of the threat, an apprehension, a mental health evaluation, and the removal of firearms may be an unrealistic expectation. We live in a world where we are demanding more from law enforcement (i.e., school security, hate crime protection, security at events, and protection from mass shooters) while concurrently losing thousands of police officers.

Just dealing with mental health within the day-to-day criminal justice system is a daunting task. There is data suggesting that most people within our correctional systems have mental health issues that run the gamut from a formal diagnosis to brain injuries to personality disorders to anxiety and depression.

Most criminal offenders have histories of serious substance abuse. Most were under the influence of drugs or alcohol at the time of their arrests. Combining mental health issues with substance abuse is common. Parole and probation and prison mental health caseloads have never been higher.

Within the context of the daily realities of the justice system, immediate and precise responses to threats will be immensely challenging. If society demands speed and precision, it needs to pay for it.

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