The Rhode Island House of Representatives voted 60 to eight Thursday to pass a “Red Flag” bill that would allow courts to take action against individuals who own a firearm and are considered to pose imminent danger to themselves or others. The House also voted to pass legislation (H-7075) banning “bump stocks,” which are modifications to semiautomatic weapons that increase their firing rate. Both bills will now move on to the state senate.
Legislation similar to the Red Flag bill is being considered by lawmakers in states across the country following the Parkland, Florida shooting, in which the gunman displayed warning signs of violence prior to the incident.
The Red Flag bill “gives law enforcement the tools necessary to intervene at a very crucial time,” allowing law enforcement act quickly to disarm a potential shooter, said Speaker Nicholas Mattiello, D-Cranston, a bill co-sponsor, at the legislative session. “The professional law enforcement community” has emphasized that “this is the bill that is needed to protect everyone,” he added.
The Red Flag bill enables police officers to petition for “extreme risk protection orders” to be issued against individuals exhibiting one or more of 11 different behaviors that make them a potentially active threat. Considerations would include criminal and mental health history, patterns of violence or domestic abuse and substance and alcohol abuse history. Ultimately, a judge would decide whether the petition provided “clear and convincing evidence” for a protection order to be issued. The orders would last for one year and can be renewed.
In February, Gov. Gina Raimondo passed a red flag executive order as a preliminary measure to achieve the same objectives.
The House Judiciary Committee voted 12 to zero to approve the Red Flag bill Tuesday, with two Republican members abstaining. However, the committee also made a series of major revisions in response to concerns that the Red Flag bill could infringe upon civil liberties.
The key change to the bill includes ensuring that only law enforcement would have the right to file a petition for protective orders; previously, the attorney general and family members of the person in question were also allowed to do so, according to a list of talking points provided by the Office of the Speaker of the House. Officers would be required to provide “credible evidence” sworn under oath.
The new version of the bill also stated that “unlawful, threatening or reckless use or brandishing of a firearm” in social media posts could serve as grounds for a judge to grant an order.
Many of the changes came in response to a 14-page report released by the Rhode Island chapter of the American Civil Liberties Union in March. The report warned that the Red Flag bill could set a precedent for law enforcement and courts to violate civil rights without adequate due process.
“When you are dealing with legislation, the devil is always in the details,” said Steven Brown, director of Rhode Island’s ACLU. “The danger is that (the Red Flag bill) ends up getting used for purposes that it was never intended to be used for. There are provisions in the bill that authorize action against individuals based on very vague and open-ended standards.”
According to the ACLU’s report, the bill’s broad scope could be used as a pretext for police to remove lawfully owned weapons from alleged gang members or people using “overblown political rhetoric” on social media.
Moreover, when police are tasked with exercising significant discretion, that power is often used disproportionately against marginalized groups, Brown said.
The ACLU also called into question the duration of the protective orders; the fact that courts could compel individuals to engage in mental health evaluations, or else face contempt of court; and the bill’s loose definition of “imminent danger.” Individuals with criminal backgrounds or histories of mental health issues without a record of recent violence could still face protective orders if a judge determines that they pose an imminent and “significant” danger.
“The bill places judges in the unenviable — indeed, impossible — position of trying to predict who may and may not become a mass murderer,” the ACLU report noted.
The Rhode Island Coalition Against Gun Violence has not endorsed the Red Flag bill, according to Katherine Kerwin, director of communications for the coalition.
According to Larry Berman, director of communications for the Office of the Speaker, Mattiello and the Red Flag bill’s other sponsors reviewed similar legislation from other states like California and Oregon. They also consulted extensively with state agencies to make adjustments prior to Thursday’s vote.
The revised bill now requires the court to review protective orders within 30 days of their issue and for individuals to be given access to a public defender. There would also be the opportunity to submit a written request for appeal.
In addition, measures have been taken to guard against intentional false reporting. The penalty for filing a petition for a protective order in “bad faith” would lead to fines of $5,000 and up to five years of imprisonment.
But for some legislators, these changes to the Red Flag bill were not sufficient to mitigate due process concerns.
“We should be taking guns from people who should not have them. I think everyone agrees with that — the question is, how do we do it?” said House Minority Whip Blake Filippi, R-Block Island. “I don’t think this bill respects the process (that) is necessary to take away someone’s fundamental right.”
Nevertheless, proponents of the bill place a premium on the number of lives it could save. Rep. Teresa Tanzi, D-Narragansett, emphasized the bill’s role in suicide prevention.
“Nine out of 10 people who attempt suicide and do not complete suicide go on to never attempt again,” Tanzi said. “Now, those who attempt suicide with a handgun — nine out of ten of those individuals do not survive. … You take the gun out of the equation, (they would) go on to live full, productive, happy lives.”
Approximately 70 supporters of Moms Demand Action, an organization advocating gun control that helped develop the Red Flag bill, formed a visible presence at the legislative session. Sitting in bright red shirts in the wings of the house, they clapped quietly when the bill was passed.
“I joined Moms after (the Sandy Hook Elementary School shooting); I lived in that area, and it just destroyed me,” said Barbara Swanson of Narragansett, a survivor engagement leader responsible for coordinating with survivors of shootings to advocate for gun control. “But for some reason, Parkland destroyed me worse.”
“I have grandchildren; I don’t want them to live in a violent society,” she added. “We have a second amendment, but with rights come responsibilities.”
— Additional reporting by Sophie Culpepper
