SAN ANTONIO – It seems to happen after every mass shooting -- the shooter’s past or behavior is identified as a missed red flag. Some Texas lawmakers who oppose red flag laws have argued that we already have laws that can force someone to give up their guns, so why do we need more, and is that accurate?
The Uvalde shooter made threats of violence and rape. He shared a video online depicting a dead animal in a plastic bag and even had the nickname “school shooter.” These details are findings in a report by the Texas House Committee investigating the massacre at Robb Elementary, where 19 children and two teachers were murdered.
However, the shooter did not have a criminal history, nor was he diagnosed with a mental illness. There have been conversations that Texas needs a system to connect the dots, but that system simply does not exist.
“We have a system where we report individuals to the DPS if they’ve been committed, for example, or if they have a guardian. And that theoretically prevents them from purchasing weapons. But unless you’ve hit the very tail end of that crisis system, unless you’re at the end of that whole process, you’re under the radar, and Texas has no mechanism to check for it,” said Judge Oscar Kazen.
Judge Kazen presides over Bexar County Probate Court 1. He deals with wills and estates after someone passes away, but he also deals with guardianship and emergency apprehension and detention. These are ways in which someone can be forced to give up a gun under certain circumstances.
For someone to be granted guardianship over another person, there must be evidence that a person is incapable of caring for themselves.
“You can’t provide for yourself. You can’t take care of yourself. You’re so permanently disabled and incapacitated that you can’t provide for your safety. Then a person can come in as their guardian,” Kazen said.
Emergency apprehension and detention are used in cases where someone has become a threat to themselves or others.
Are threatening statements made online enough to qualify for an emergency apprehension?
Judge Kazen says, “yes, if the threat is imminent and apparent that it’s related to mental illness.” He added that “if no law has been broken, but they are a danger to themselves, or they’re making threats to someone, then an officer can detain them and rather than take them to jail, take them to an emergency room for observation.”
At that time, if the person has guns or other weapons on them, law enforcement can confiscate those. If that person is not ultimately committed to a mental health facility, law enforcement officers are required to give the weapons back without the benefit of a hearing. Judge Kazen says very few individuals who are detained in Bexar County end up being committed to a facility.
According to the Southwest Texas Regional Advisory Council, or STRAC, over 12,000 people in San Antonio and Bexar County were placed under emergency apprehension and detention from July 1st, 2021, through June 30th, 2022. Of those detentions, there were 479 reports of weapons seized. STRAC does not track how many detentions result in a person being committed.
“Every day, law enforcement officers come marching into this court and shake their heads and hand me a document where I sign off that the person has not been committed, and they have to give them back their weapon,” Kazen said.
The judge said those officers are shaking their heads because “they just took the gun away from an eminently dangerous individual, and they’re giving it back without any mechanism to see if it’s even the right thing to do.”
Florida’s Red Flag Law
Bob Gualtieri, sheriff of Pinellas County, Florida, just outside of Tampa, said, “We’ve empowered people to take action when something bad happens. Isn’t the idea that we want to prevent something bad from happening?”
Florida enacted a red flag law in March 2018, just weeks after a shooter gunned down 17 people at Marjory Stoneman Douglas High School in Parkland, Florida. Since then, the risk protection orders afforded by that law have been used nearly 9,000 times in the state, including 1,200 times in Pinellas County, making it the second highest number by county in Florida.
“Somebody can do something, and it doesn’t have to rise to the level of being a crime, and it doesn’t have to rise to the level of being actionable under the mental health statute. In fact, it may not even be mental health-related,” Gualtieri said. “Somebody just may be an angry person that wants to exact revenge on somebody else, and it may not rise to the level of crime.”
A report must be made to law enforcement if someone in Florida says or does something thought to be a red flag. They investigate and decide whether something needs to be done.
“Even if it’s not actionable from a voluntary mental health standpoint or from a crime standpoint, is there something we should do? Because this person isn’t right. Something is wrong here,” Gualtieri said.
A supervisor or agency of attorneys then reviews the case before proceeding to a judge.
“We need to make sure, especially with Second Amendment rights and the right to keep and bear arms, the right to protect yourself is properly vetted,” Gualtieri said. “So we have all of these steps in place. Law enforcement officer investigates. They have to articulate it, supervisory review, agency counsel review. Then it goes to a judge. And if a judge determines that there’s legal sufficiency, then the judge can issue a temporary order.”
That temporary order is done ex parte, meaning the person is not present, similar to getting a warrant. The order is good for 14 days, and within those 14 days, a trial is scheduled. That’s when an attorney can represent the person in question to contest the order.
From there, a judge makes a ruling. The judge could deny the order or decide that a person cannot possess or purchase guns or ammunition for a year. If circumstances change within that year, the person can return to court and ask for a reconsideration.
Once the order expires, Gualtieri said there is nothing on a person’s record to reflect it. But when the order is in place, that person will not pass a background check to buy a gun. If they already possess weapons, they must give them up, but not necessarily to law enforcement.
“They can give it to a next-door neighbor that can give it to a family member. They give it to a friend, or if they want, they can surrender it to law enforcement. So this isn’t where cops are knocking on doors and taking people’s guns,” Gualtieri said.
The sheriff admits the law isn’t perfect. Someone could turn right around and return the guns to someone who’s not supposed to have them, or they could buy guns illegally.
Gualtieri said it is about creating speed bumps along a path to violence. While red flag laws are often discussed after mass shootings, in Pinellas County, they are more commonly used in domestic violence cases or when someone is threatening to hurt themselves.
“Everybody talks about prevention. People talk about getting information. People talk about connecting the dots,” Gualtieri said. “Well, if you get all this information, and even if you do connect the dots, but you’re not doing anything about it, you haven’t accomplished anything, and you’re leaving it open until the next time something bad happens.”
Federal gun legislation signed into law after the Uvalde school shooting provides states with $750 million to create and manage red flag laws. So far, top Texas lawmakers have not signaled any interest.
“It’s a tough challenge. How do you ever get to live in a free society where we also get to check all those things when you haven’t done anything wrong yet,” Gualtieri said.
“I don’t have the answer, but I’m really tired of watching people, who I know were just recently seriously dangerous to themselves, getting their gun back without any type of safety net,” he added.
If you believe someone you know needs an emergency apprehension or detention, you can call the police to request one. Ask for a mental health officer to respond. You can also contact a court directly to ask for a judge’s warrant.
Click this link for more help and resources here in Bexar County.