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Risk Warrants: A New Tool for Keeping Guns Out of Dangerous Hands

Duke sociologist Jeffrey Swanson says there's one effective gun control policy that can win wide approval

Jeffrey Swanson on risk warrants.
Duke sociologist Jeffrey Swanson promotes risk warrants as an effective way forward for politicians on gun control.

In the outrage over yet another tragic school shooting, most lawmakers continue to offer divisive policy choices: either curtail access to firearms or allow more guns in more places. We believe a new policy called “risk warrants” could help break through this political paralysis.

Nearly everyone, including President Donald Trump and the NRA, seems to agree that people at genuine risk of harming themselves or others should not have guns. Background checks alone will never fix this problem, because background checks catch only a fraction of the people who truly pose a risk. That’s why bipartisan support is growing for laws authorizing judges to issue “risk warrants” — also called “gun violence restraining orders” or “extreme risk protective orders” — that temporarily remove firearms from those at risk of harming someone.

In gun policy debates, risky people who should not possess guns are often called “the mentally ill.” This phrase – used by all sides -- is highly misleading, however. Forty million Americans have diagnosable mental health conditions yet pose no danger to anyone. Disqualifying all those people from gun ownership would be ineffective, unfair and stigmatizing. It would also exclude large numbers of people who are not mentally ill, but who do pose a danger.

“A recent study evaluating Connecticut’s law analyzed suicide mortality between 1999 and 2013. The researchers estimated that for every 10 to 20 risk warrants issued, one life was saved by averting a suicide.”

Most mass shooters have no histories of treatment for mental illness. However, many have exhibited extreme anger, loss of control and other behaviors that worried their families, co-workers, teachers or neighbors. We need laws allowing citizens to bring concerns about a person’s dangerous behaviors to the attention of law enforcement, who can then seek a judicial order temporarily restricting the person’s access to firearms. Such laws allow orders to be issued when evidence shows a person is suicidal or has exhibited alarming behavior, signaling they are likely to hurt someone else.

Five states — Connecticut, Indiana, California, Washington and Oregon — have enacted laws authorizing such pre-emptive, risk-based, time-limited gun removal orders. These civil orders neither require, nor produce, a criminal record. They simply give police officers clear legal authority to search for and remove firearms when the officer has probable cause to believe someone poses an imminent risk of injuring someone. Typically, a judge issues a risk warrant for immediate gun removal in such cases. Then, within two weeks, a court hearing takes place at which the state must show clear and convincing evidence that the person continues to pose a significant public safety risk. If the state meets this burden, it may retain the firearms for up to one year.  These procedures fully respect the Second Amendment and the requirements of “due process.” 

A recent study evaluating Connecticut’s law analyzed suicide mortality between 1999 and 2013. The researchers estimated that for every 10 to 20 risk warrants issued, one life was saved by averting a suicide.

Risk protection order laws can be fairly administered and will save lives. Recent national polling shows these types of laws are supported by about two out of three gun owners and three out of four non-gun-owners. And national and state lawmakers increasingly appear ready to sign on to risk-based, time-limited gun removal as a concept. It is heartening that this approach has finally become part of the national conversation.

States are best suited to enact and carry out such laws, using state courts to issue risk warrants and local police to serve them. Congress should create incentives for more states to do so, however. The federal government should also bar people who are subject to risk protection orders from purchasing guns under the national instant background check system.

With about 100 people dying from gunfire in the United States every day, finding common ground on gun policy has become a moral imperative. Risk warrant laws are an important piece in the puzzle of gun violence prevention.

This article originally appeared in the Richmond Times-Dispatch. and the Charleston Post-Dispatch