Graham Written Statement for the Record and Background for Hearing Entitled “Red Flag Laws: Examining Guidelines for State Action”

Written Statement for the Record

Senator Lindsey O. Graham

Chairman, Senate Judiciary Committee

For a hearing entitled

“Red Flag Laws: Examining Guidelines for State Action”

Tuesday, March 26, 2019

I support the Second Amendment.  It’s a critical piece of our Constitution and our nation’s history.

While Republicans and Democrats – on this Committee and across America – can disagree on the Second Amendment, what’s clear to me is that recent tragedies in the United States are examples of a common problem – a failure to identify and lessen risk from individuals who may be showing signs of distress and the willingness to hurt themselves or others. 

It is my hope that today’s hearing will shed light on an area where I believe bipartisan support could be achieved. 

The use of Extreme Risk Protection Orders also known as “Red Flag” orders have shown promise in the states. 

While no two state laws are the same, Red Flag laws generally work by a family or household member or law enforcement officer petitioning a court to temporarily restrict an individual’s ability to buy or access firearms.  The burden of proof is placed on law enforcement to prove the person in question has become an imminent danger and there is a Due Process right for the individual to challenge the determination.

This is not a red or blue state issue.  Politically, these laws are found in red, blue, and purple states.

In March 2018, the Trump Administration called on every state to enact Extreme Risk Protection Orders. President Trump also directed the Department of Justice to provide technical assistance to states – at their request – regarding establishing and implementing Extreme Risk Protection Orders.

Outside groups with opposing views of the Second Amendment – the National Rifle Association and Giffords Law Center – have also expressed support for Red Flag legislation.

As we saw with the shooting at Marjory Stoneman Douglas High School in Florida, all too often individuals who pose a danger do everything except take an ad out in the paper in terms of sending warning signs.

In response to that terrible act, Florida passed a Red Flag law over a year ago.  Here are some of the results:

• 21 million people call Florida home.  Only about 450 ERPOs were ordered as of July 31, 2018.
• In Broward County, 108 people were impacted, including 28 cases where the person was accused of domestic violence, 45 from people who were suffering from mental illness and 34 people who were contemplating suicide.
• According to numbers from Pinellas County, the majority of risk protection cases have involved people with histories of mental illness who threatened to hurt themselves.

Today’s hearing will focus on the possibility of incentivizing states to create their own Red Flag laws – which would be unique to their states. 

It is the start of a discussion. It is a learning opportunity for us all. Hopefully it can be productive and make our towns, communities, cities and states a little safer.

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Quick Question and Answer on Red Flag Protection Orders

March 26, 2019

 Why is Chairman Graham holding this hearing?

• Graham has been a strong supporter of the Second Amendment and supports a dialogue on the creation of ‘Red Flag’ Extreme Risk Protection Orders for people who show significant signs of potential harm to themselves or others.
• This hearing will be to learn more about the possibility of incentivizing states to pass them at the state level.
• It’s a learning opportunity about what works and what does not. 

What is a ‘Red Flag’ Protection Order?

• Extreme Risk Protection Order (ERPO) laws allow families, household members, or law enforcement officers to petition a court directly for an order temporarily restricting a person’s access to firearms if they show signs of potential harm to themselves or others.

What does the Trump Administration say about ‘Red Flag’ Extreme Risk Protection Orders?

• In March 2018, the Trump Administration called on every State to adopt an Extreme Risk Protection Orders (ERPOs).
• President Trump also directed the Department of Justice to provide technical assistance to States, at their request, on establishing and implementing ERPOs.

 The NRA supports the Second Amendment.  What do they say about ‘Red Flag’ legislation?

• The National Rifle Association is supportive of Red Flag legislation at the state level.
• As Chris Cox, executive director for the NRA’s Institute for Legislative Action said, "We need to stop dangerous people before they act. So, Congress should provide funding for states to adapt risk protection orders.”

Where are ‘Red Flag’ ERPO’s in effect?

• Thirteen states including some of the most pro and anti-Second Amendment states have passed these type of laws.
• Vice President Mike Pence, when he served as Governor of Indiana, upheld and enforced a Red Flag Protection Order.
• Florida passed a law after the school shooting at Marjory Stoneman Douglas High School. 

How has the Florida ‘Red Flag’ law worked in its first year?

• As of July 31, 2018 about 450 out of 21 million people who live in Florida were subject to an ERPO.
• In Broward County, 108 people were impacted including 28 cases where the person was accused of domestic violence, 45 from people who were suffering from mental illness and 34 people who were contemplating suicide.
• Numbers from another county, Pinellas, shows the majority of risk protection cases have involved people with histories of mental illness who threatened to hurt themselves.

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