Red Flag Laws save lives — but the Supreme Court could soon take them away.
Last November, students at a local public university were beginning to worry about their roommate. He had been acting increasingly erratic: neglecting his emotional support dog, making concerning comments while watching true crime documentaries; and, in one alarming incident, pointing a gun at himself and others at a party. When law enforcement officers were notified and executed a search of his dorm, they found a binder of mass shooters’ manifestos, blueprints of university buildings, and a list of specific student ID numbers.
This chilling scenario might have ended in an all-too-familiar tragedy. But it didn’t — instead, law enforcement officers were able to immediately remove firearms from this student using Virginia’s Red Flag Law.
This term, the Supreme Court has agreed to hear an explosive gun rights case that could severely curtail Red Flag Laws, which would take one of the best tools for preventing a situation like the above from ending in bloodshed out of prosecutors’ hands.
Red Flag Laws (called Emergency Substantial Risk Orders, or ESROs, in Virginia) allow law enforcement to temporarily remove firearms from someone who might be an imminent danger to themselves or others. These laws have recently gained momentum: before the 2018 Parkland school shooting, only five states had such laws on the books; just five years later, nearly half do. Now, student survivors of these tragedies may see the Supreme Court undo years of their impassioned advocacy overnight.
Virginia’s Red Flag Law was enacted in 2020 as part of a suite of criminal justice reforms, and since then, Fairfax County — a site of such suburban political shifts that it is home to both NRA headquarters and multiple chapters of Moms Demand Action — has handled hundreds of ESROs, the most in Virginia. (As a point of comparison, Washington, DC, has handled only 50 Red Flag cases in five years of having a similar law.)
Our office has achieved these standout numbers by prioritizing Red Flag cases at every level: I trained a specialized team of prosecutors to handle ESROs; they in turn coordinate extremely closely with county police, who also have specialized staff. My office has also collaborated with county government and local nonprofits to educate our community, and we obsess over our data to hold ourselves accountable and maximize use of this tool.
Red Flag Laws are usually advocated for to prevent potential mass shootings, but police data shows that most Fairfax cases involve mental health crises (53%) or domestic violence (30%). Other studies have shown that Red Flag Laws across the country are most effective at preventing suicides, which make up more than half of US gun deaths. Decades of research has shown that suicidal crises tend to be short-lived and impulsive, so removing a gun from the possession of someone at risk of suicide is one of the best ways to save their life.
The most common critique of Red Flag Laws is that they infringe on a person’s civil liberties, which couldn’t be further from the truth. In these cases, police independently investigate the situation and, if they decide to seek an ESRO from a magistrate, the respondent (the person to whom the order applies) is not allowed to possess, purchase, or transport firearms while under the order. This emergency order is temporary, and all respondents have a court hearing within 14 days, where they are entitled to have an attorney and argue their case in front of a judge. If prosecutors prove that there is clear and convincing evidence the respondent still represents a substantial risk of injury to themselves or others, a judge will grant a Substantial Risk Order (converted from the prior Emergency Substantial Risk Order) for up to 6 months; it can be renewed in future court hearings.
In my role as county prosecutor, I’m focused on building public safety and preventing harm. Politicians debate the complex causes of crime trends, but we know this truth: there are too many guns in our communities. The United States remains the only industrialized nation in the world where so many people are killed by guns; gun violence is the leading cause of death for children and teens. Guns also exacerbate already dangerous situations: one third of the Red Flag cases in Fairfax are sought for domestic violence. Red Flag Laws are one of the few tools prosecutors do have to keep potentially dangerous situations from exploding into violence.
Now, the Supreme Court is hearing a case that could put this life-saving tool in jeopardy by undermining the very legal basis for Red Flag Laws. The case, US v Rahimi, challenges a federal law that prohibits someone from possessing a gun if they’re subject to certain protective orders, such as those arising in situations of domestic violence. The plaintiff, Zackey Rahimi, first had his firearms taken away in 2019, after his girlfriend at the time obtained a protective order because he assaulted her and threatened to kill her. Later, Rahimi brandished weapons and opened fire in public; he was subsequently found guilty of violating this federal law and sentenced to prison. He appealed his conviction, claiming that the federal law violated his Second Amendment rights, but the Fifth Circuit Court of Appeals disagreed and affirmed his conviction.
But last year, the Supreme Court –a far-right bench of ideologues intent on an extreme political agenda– created a new, bewildering legal test for gun laws. Now, Alito says, regulations on gun rights must be consistent with “the nation’s historical tradition of firearm regulation” — a standard so outlandish and imprecise that it has already wrought chaos in the lower courts.
In light of the Bruen decision, the Fifth Circuit revisited Rahimi’s case and ultimately struck down that same federal law, reversing Rahimi’s conviction. The Fifth Circuit Judge argued that there was no historical support for such a law, finding that the Constitution does not allow firearm bans based on individual determinations of dangerousness in civil (non-criminal) proceedings.
Now, the question of whether people who have violated domestic violence protective orders are prohibited from possessing firearms is headed to the Supreme Court. As a prosecutor who cares about keeping my community safe, this is an easy question to answer, and should be equally easy for the Court. But this bench has shown no shame in using manufactured legal reasoning to roll back common-sense gun laws across the country, and I fear the consequences of their decision in the Rahimi case. The Court could very well deliver yet another devastating blow to gun violence prevention laws, especially if it finds that they may not be based on individual determinations of dangerousness in civil proceedings — the very basis for Red Flag Laws.
As we saw when a tragic situation unfolded in Maine just last week, state and local governments have extremely limited means to prevent gun violence. If Maine had implemented Red Flag Laws to get guns temporarily out of the hands of individuals during times of crisis — a tailored, constitutional approach that we use every day to save lives here in Fairfax County — a community may have been spared. The Supreme Court should be on the side of saving lives, yet it could easily decide the Rahimi case in a way that strikes down Red Flag Laws forever, adding yet another devastating ruling to a series that has sacrificed the lives of our fellow citizens on the altar of the Second Amendment.
