Two Years Of Oregon’s Red Flag Law Paints A Picture Of People In Crisis
Josh’s girlfriend broke up with him in the fall of 2017, and it hit him hard. He became depressed, started drinking and became more withdrawn. He got into a few mountain biking accidents, which his mom, Diane, thought were intentional. She thought he was trying to hurt himself.
“And then it just seemed like all of a sudden he spiraled down bad,” Diane said.
In February 2018, Josh shot himself in the leg. He owned five guns and initially he told his mom and sister it was an accident. But on the way to the hospital, Diane said he confided in her that he was trying to kill himself.
Guns & America is not using Josh’s or his family’s last name to protect his privacy.
Eventually she would use Oregon’s newly created extreme risk protection orders (ERPO) to have her son’s firearms removed.
The law, colloquially known as a “red flag law,” allows immediate family, co-habitants or law enforcement to ask a judge to prohibit a person from possessing or buying a firearm for one year. Once filed, respondents have 30 days to contest the order in court.
Guns & America has reviewed all 166 petitions that were filed in the state from Jan. 1, 2018, when the law went into effect, through Oct. 31, 2019.
They paint a picture of people in extraordinary crisis.
For the couple of months after Josh shot himself, he was in and out of the hospital. He would detox, start doing better, then relapse. In the hospital he would hide his depression, self harm and suicidal thoughts from doctors and social workers. Despite her entreaties, Diane said there was little they could do.
“But he definitely talked about — he was depressed,” she said. “He would say, ‘I want to die.’”
Doctors suggested she take his guns, but without his consent that was impossible.
“I had tried at one point and he got in my face and said, ‘Get the blank out of here,’” she recounted.
Finally, in April 2018 a police officer on a wellness check at their home told Diane about the new extreme risk protection orders.
Of the 166 petitions filed in Oregon in the nearly two years since the law took effect, 112 were for people who were at risk of suicide.
A Tillamook County woman, allegedly addicted to pain pills and in the midst of a divorce while living at a cancer treatment center, repeatedly demanded that her husband give her his firearm and ammunition so that she could take her own life. A father in Josephine County petitioned for an ERPO after his son’s numerous threats to kill himself escalated to self harm and violence toward family members.
“Has history of self harm including cutting, jumping from moving vehicles, and striking himself,” reads the petition, which goes on to say the son often fondled a firearm or knife when speaking to people.
Thirty-nine of the filed ERPOs, or about 23%, were related to domestic violence.
A Washington County man pointed a gun at his wife and said, “maybe I’ll take us both out.” A Josephine County man pushed a loaded pistol into his wife’s chest so hard it left a bruise. That petition, filled out by a Josephine County Sheriff’s Office deputy, reads, “respondent owns approximately 30 firearms, including assault weapons and body armor.”
Twenty-six of the suicide and domestic violence petitions were for both. Most of the petitions involved multiple factors such as threats of violence, use of physical force, owning or attempting to purchase deadly weapons, prior convictions and use of controlled substances.
Extreme Risk Protection Order Laws Nationwide
Currently, 17 states and the District of Columbia have extreme risk protection orders. Connecticut was the first state to pass a red flag law in 1999 after a mass shooting at the Connecticut State Lottery.
The laws vary in how they work. In Oregon, only law enforcement, immediate family, and co-habitants can petition for an ERPO. Maryland and D.C. allow mental health providers to petition and New York allows school administrators. In Hawaii, where the law goes into effect on Jan. 1, medical professionals, coworkers and educators can all petition.
In Florida, where legislators passed a red flag law after the 2018 Parkland shooting, Jerron Smith recently became the first in the state to be convicted of refusing to comply with an ERPO. Courts in Connecticut, Indiana and Florida have upheld the laws as constitutional.
A 2018 study found Indiana’s ERPO law was associated with a 7.5% reduction in firearm suicides over 10 years. Connecticut’s law was also associated with a reduction in suicide. Research has yet to show an impact on gun homicides.
Diane, the mother whose son had become suicidal after breaking up with his girlfriend, filed the paperwork for an ERPO at 9 a.m. on April 17, 2018, and was in front of a judge that afternoon. By 6:15 that same evening, a sheriff’s deputy delivered a certified copy of the order to Josh. His mom said he peacefully surrendered his firearms.
“It tore my heart out,” Diane said. “I felt like he hated me.”
But, she said, it also served as a wake up call to Josh, who soon after got sober. His mom said he started going to Alcoholics Anonymous and seeing a therapist. Diane agreed to have the order lifted early.
Josh didn’t want to be interviewed for this story, but did relay a message through his mom.
“He said he knows that he was so bad off that [the ERPO] was the right thing, but it still didn’t make him happy,” Diane said.
Still Not Widely Used
In an August interview with OPB, Oregon Attorney General Ellen Rosenblum said the law is working, but she acknowledged that “it is not being widely used, it is not widely known about.”
Of Oregon’s 36 counties, 11 haven’t issued a single ERPO. Another seven have issued just one. Part of that might be a function of awareness for the new law, but it may also be political.
“I believe that there’s a preconceived notion that these are not appropriate in our county,” said Rachael Espy, executive director of the SAFE Project, a domestic violence advocacy program in Coos County, Oregon.
“I think that it’s more of a culture here in Coos County that everyone has a right to a firearm because of our Second Amendment rights,” Espy said. “And while I agree that we should protect our Second Amendment rights, I don’t agree that everyone has a right to a firearm.”
She said it’s up to police chiefs and sheriffs to determine best practices and train their officers and deputies on enforcing “red flag” laws. If leadership doesn’t advocate for policies to protect survivors of domestic violence, then their subordinates won’t either, she said.
“If it’s not a resource that’s readily offered, that they’re not trained on, that they’re not encouraged to use, then why would they use it?” Espy asked
While Oregon’s law may not have been fully embraced, in Colorado, elected officials and law enforcement are bracing for a showdown.
The Colorado Legislature passed an ERPO law this year that will take effect on Jan. 1 and a number of Colorado sheriffs have said they won’t enforce the law or use it in their counties. On Dec. 7, approximately 200 people attended a “We Will Not Comply” rally at the state capitol. The Three Percent militia, an anti-government group, provided security. Speakers included a number of Republican state representatives and candidates for Congress.
“Essentially what I’m saying is, I won’t be an applicant for a red flag order,” Weld County Sheriff Steve Reams told KUNC in August. ”If we have someone who is a significant risk to themselves or others, we’ll go out and handle that person … but taking their guns away is not how to make a situation better when a person is in crisis.”
Det. Lucas Franks with the Washington County Sheriff’s Office in Oregon has been using extreme risk protection orders for almost two years and disagrees with Sheriff Reams.
Before extreme risk protection orders were an option, he said there were times when his hands would be tied, when he had done everything he could legally do and he would have to accept an ongoing risk.
“It’s certainly not the answer to all the problems, but it can be a useful tool,” Franks said. “That void that we may not have been able to resolve in the past, the ERPO potentially helps with that.”
In some states a warrant may be issued allowing law enforcement to search the respondent’s home. Oregon isn’t one of those states. Det. Franks said enforcing a risk protection order in Oregon still requires some cooperation from the respondent.
“There’s no mechanism for us to go booting the door and searching around ourselves,” Franks said of Oregon’s law. “That’s just not part of it.”
Even before an extreme risk protection order reaches police, it has to pass a judge’s scrutiny. Through October, 32 of the 166 requests in Oregon have been denied by judges and an additional 12 were dismissed after respondents requested a hearing. That means around 27% of requested ERPOs did not result in gun removals.
Reasons judges denied petitions vary. Five were denied because the petitioner wasn’t eligible to request the order — it was filed by someone’s neighbor or boss, for example. Four were denied because the petitioner didn’t show up to the initial hearing and another 15 were denied because the judge determined the evidence was insufficient to warrant an ERPO. Others were dismissed if the respondent was already prohibited from owning firearms or if other kinds of restraining orders were more appropriate.
‘That’s Not Enough’
Jane, a woman in a domestic violence situation, nearly had her petition denied in July 2018.
Guns & America is not using her real name because of safety concerns.
Jane said she had been living on adrenaline for more than two months after her husband had a psychotic break.
Near the end of April 2018, Jane’s husband told their daughter that he was going to die on May 1. She said that unraveled their marriage and made her worry about her safety and that of her children.
Jane said her life was a roller coaster after that. Her husband became paranoid, erratic and would talk about ending his life if she ever left him.
“And throughout all of this, we’re still meeting with counselors,” Jane said. “He’s being sent to the hospital. The police are being called and still…there was nothing I could do.”
One night in June, she said, she realized she couldn’t stay in the marriage any longer. Although her husband had always had what she described as violent tendencies, he had never been violent toward her. Still, that night, she was lying in bed and couldn’t sleep.
“And I just remember thinking: At any time if he wanted to kill me, there’s nothing I could do. I’m helpless,” she recalled. “And that’s when I realized, ‘Maybe you don’t know this person like you thought you did and maybe you’re not as safe as you thought you were.’”
Two months after his break began, she told him she wanted a divorce. She said he became homicidal. He accused her of having an affair and threatened to put a bullet in her head. When the police came that day, he repeated the same threats and said he was planning on ending his life.
Her husband was hospitalized and the police told her to look into a restraining order, but didn’t offer any details or help.
“As a person who’s in this crisis mode and experiencing their whole world turning upside down, it felt like I had no idea what I was doing,” she said. “Show me, tell me where to go, what makes sense?”
Jane was left to do her own research online and found information that incorrectly suggested that because her husband had never actually hurt her, she didn’t qualify for a restraining order. Under Oregon law, threats of abuse are sufficient for a Family Abuse Prevention Act, or FAPA, protection order. Without a restraining order, Jane felt unsafe. She stumbled across the ERPOs online and thought they applied to her situation so she applied for one.
After explaining her situation to the judge, Jane said he still wasn’t convinced it met the requirements for an ERPO.
“When the judge was asking me questions, it was like, ‘That’s not enough. That’s not enough. I can’t grant this to you,’” she said. “But he said he would get a sniper rifle. He said specifically that he was going to shoot me.”
It wasn’t until she mentioned that her husband had just gotten his Oregon state ID that the judge changed his mind. Jane’s husband didn’t own any firearms but he had expressed an interest in buying one. And with a state ID he finally had the ability to do so legally. The judge granted the ERPO which meant her husband wouldn’t be able to pass the required background check to buy a firearm.
The ERPO expired in July, and Jane said her relationship with her ex-husband is hostile but working. She said he’s on medication now, and while they don’t speak, he spends every other weekend with their children. He has even cancelled a few times when he said he felt off, a reassuring sign to her that he is more self aware.
She said getting the protection order changed the way she interacted with her husband.
“I wanted him to still have parenting time and that was important to me,” she said.
Without the ERPO, she said, she never would have even considered it.
Resources if you or someone you know is considering suicide:
National Suicide Prevention Lifeline: 1-800-273-8255 or suicidepreventionlifeline.org
Options For Deaf & Hard of Hearing: 1-800-799-4889
en Español: 1-888-628-9454
Veterans Crisis Line & Military Crisis Line: 1-800-273-8255, Press 1
Crisis Text Line: 741-741
In emergency situations, call 911
Guns & America is a public media reporting project on the role of guns in American life.
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