Texas Governor Greg Abbott clearly indicated his lack of support for “Red Flag” or “Extreme Risk Protection Orders” after the Texas Senate Select Committee on Violence in School and School Security hearings last July. Still, uninformed, anti-gun Texas legislators plan to present bills for such laws this coming year. These legislators ignore the simple fact that Texas already has procedures to address the risks posed by persons who are a significant danger to themselves or others. These existing laws are significantly more comprehensive than any “Red-Flag” law, better balance due process requirements, and are consistent with the simple fact that the risks lie with the person, not the firearm. The key is recognizing that these laws already exist and understanding how they can be used to safeguard the person from harming themself or others.
Texas provides for the apprehension of a person believed to be dangerous, a timely evaluation of the person, and if necessary, the placement of that person in a mental health facility for treatment. The most relevant statutes provide for a non-warrant detention, a warrant detention, a protective custody order, and court-ordered mental health services. As John Lott pointed out, “If someone’s mental illness really does pose a danger to others, why only stop them from legally purchasing a gun? They’ll have plenty of time to obtain a weapon illegally. Our best bet is to confine them to a mental health facility.” (John Lott, “CPRC in Investor’s Business Daily: Some gun laws dealing with mental illness do more harm than good” Investor’s Business Daily, 9/26/15.)
If, because the person has been ultimately adjudicated as a mental defective or involuntarily committed to any mental institution (18 U.S.C. § 922(d)(4)), that person’s firearms are subject to seizure and forfeiture under federal law. The following is a brief outline of the Texas procedures currently available to prevent the harms posed by a person determined to be a risk to themselves or others.
Non Warrant Emergency Mental Health Detention: Texas Health & Safety Code § 573.001
A Non Warrant Emergency Mental Health Detention may be initiated by a police officer or a person’s guardian. The law provides that peace offices are authorized to apprehend or take a person into custody without a warrant if three conditions are met:
(1) The police officer has reason to believe and does believe that the person being detained has a mental illness; (i.e., psychosis, depression, etc.)
(2) The police officer has reason to believe and does believe that because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and
(3) The police officer believes that there is insufficient time to obtain a warrant before taking the person into custody.
While a police officer is responsible for detaining the person, the officer’s decision on whether the person is a substantial risk of harming themself or others may be based both on 1) the police officer’s observations of the person’s behavior or other evidence of severe emotional distress and deterioration in the person’s mental condition; and 2) information provided to the officer by the representation of a credible person on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found. Clearly, credible persons may include family members, school employees, and employers.
A peace officer who takes a person into custody under these conditions may immediately seize any firearm found in possession of the person. The officer is then required to immediately transport the apprehended person to an inpatient mental health facility. A preliminary examination is required within twelve hours and the person may be admitted to the facility only if 1) the person is a person with mental illness; 2) the person evidences a substantial risk of serious harm to themself or others; 3) the described risk of harm is imminent unless the person is immediately restrained; and 4) emergency detention is the least restrictive means by which the necessary restraint may be accomplished.
If the law enforcement agency possessing the person’s firearm receives notice that the person taken into custody was ordered to receive inpatient mental health services, the agency has thirty days to provide written notice to the person by certified mail that, among other things, the person is prohibited from owning, possessing, or purchasing a firearm under federal law. The firearm will not be returned to the person. If the person wishes their firearm to be released to someone else, the person receiving the firearm must provide an affidavit that they will not allow the committed person to have access to the firearm.
A guardian of a person who is 18 years of age or older may transport the ward to an inpatient health facility for a preliminary examination if the guardian has reason to believe and does believe that 1) the ward is a person with mental illness, and 2) because of that mental illness there is a substantial risk of serious harm to the ward or to others unless the ward is immediately restrained. Immediately after transporting the ward to a mental health facility, the guardian is required to file an application for detention (a protective order) with the facility.
Warrant Mental Health Emergency Detention: Texas Heath & Safety Code § 573.011
Any adult may file a written application for an emergency detention of another person. These applications may be made after an officer has already apprehended the person under a warrantless detention, but may also be pursued by others without such detention.
The application must state: 1) a belief that the person evidences mental illness; 2) a belief that the person evidences a substantial risk of serious harm to themself or others; 3) a specific description of the risk of harm; 4) a belief that the risk of harm is imminent unless the person is immediately restrained; 5) that the applicant’s beliefs are derived from specific recent behavior, overt acts, attempts, or threats; 6) a detailed description of the specific behavior, acts, attempts, or threats; and 7) a detailed description of the applicant’s relationship to the person whose detention is sought. The application may be accompanied by any relevant information.
The judge or magistrate is required to examine the application and may interview the applicant. The court is required to issue to an on-duty peace officer a warrant for the person’s immediate apprehension if it reasonable cause to believe that 1) the person evidences mental illness; 2) the person evidences a substantial risk of serious harm to themself or others; 3) the risk of harm is imminent unless the person is immediately restrained; and 4) the necessary restraint cannot be accomplished without emergency detention. The officer is required to transport the person for a preliminary mental health examination at an inpatient mental health facility. The warrant serves as an application for detention in the facility.
Protective Custody Orders: Texas Health & Safety Code § 574.021
Under both a Non-Warrant and a Warrant Emergency Detention, a physician is required to perform a preliminary examination within 12 hours. The person may not be detained in custody for longer than 48 hours unless a written order for protective custody is obtained. The motion for a Protective Custody Order may be filed by the county or district attorney or on the court’s own motion.
A judge or designated magistrate may issue a protective custody order only if the judge or magistrate determines 1) that a physician has stated the opinion and the detailed reasons for the opinion that the proposed patient is a person with mental illness; and 2) the proposed patient presents a substantial risk of serious harm to themself or others if not immediately restrained pending the hearing.
The protective custody order authorizes the patient to be immediately transported to a mental health facility and the person shall be detained in the facility until a probable cause hearing is held, which must be done within 72 hours after being detained. The hearing must be held to determine if 1) a physician has stated the opinion and the detailed reasons for the opinion that the proposed patient is a person with mental illness; and 2) there is probable cause to believe that the proposed patient under a protective custody order presents a substantial risk of serious harm to themself or others to the extent that the proposed patient cannot be at liberty pending the hearing on court-ordered mental health services. If the conditions are met, the patient must remain in protective custody until a final order for court-ordered mental health services is entered or the person is released or discharged. The person may be released by the court if the court determines that no probable cause exists to believe that the patient presents a substantial risk of serious harm to themself or others.
Court-Ordered Mental Health Services: Texas Health & Safety Code § 574.001
A county or district attorney or other adult may file a sworn written application for court-ordered mental health services. However, if a “certificate of medical examination” is not included, the application must be filed by a county or district attorney. A “certificate of medical examination for mental health” is a sworn statement by an examining physician that states, among other things: 1) a brief diagnosis of the examined person’s physical and mental condition; 2) an accurate description of the mental health treatment, if any, given by or administered under the direction of the examining physician; and 3) the examining physician’s opinion that the examined person is a person with mental illness and, as a result of that illness, the examined person is likely to cause serious harm to themself or others or is suffering from mental or physical deterioration that prevents them from caring for themself and make rational and informed decisions.
These are non-emergency orders for mental health services. Unless the person is detained under one of the emergency provisions, the proposed patient “is entitled to remain at liberty pending the hearing on the application.”
The application may request temporary mental health services or, if the person has already received court-ordered inpatient mental health services for at least 60 days, extended inpatient mental health services. The application must include a statement that the proposed patient is a person with mental illness and meets the criteria in Section 574.034 (temporary services for up to 90 days) or Section 574.035 (extended services for up to twelve months) for court-ordered mental health services.
A hearing must be set within 14 days of the application being filed, generally before the judge if for temporary mental health services or a jury for extended mental health services. A hearing on an application for court-ordered mental health services may not be held unless there are on file with the court at least two certificates of medical examination for mental illness completed by different physicians each of whom has examined the proposed patient during the preceding 30 days. At least one of the physicians must be a psychiatrist if a psychiatrist is available in the county. The certificate of medical examination for mental illness must, among other things, provide the examining physician’s opinion that the person is one with mental illness and, as a result of that illness, is likely to cause serious harm to themself or others or suffers from other disabling mental limitations.
The court is required to deny the application for court-ordered temporary or extended mental health services if, after a hearing, the court or jury fails to find, from clear and convincing evidence, that the proposed patient is a person with mental illness and meets the applicable criteria for court-ordered mental health services.
Substance Abuse Detentions
The above four procedures are designed for those suffering from a mental illness. It would seem a stretch to argue that someone wishing to harm themself or others is not suffering from a mental illness, whether it be depression or a psychotic breakdown. Almost identical provisions are available, however, for those suffering from substance abuse rather than an mental illness:
- Emergency Apprehension and Detention Where Insufficient Time for a Warrant: Texas Health & Safety Code § 462.041
- Emergency Apprehension and Detention Pursuant to Court-Ordered Warrant: Texas Health & Safety Code § 462.042
- Protective Custody Orders: Texas Health & Safety Code § 462.065
- Court-ordered Treatment: Texas Health & Safety Code § 462.061
Marital Dissolution Protective Orders
An application for a protective order may be filed by any adult member (or former member) of a family or household to protect themselves or any other member, or by an adult member of a dating relationship, or by a prosecuting attorney, or by the Dept. of Family Services. The court is required to issue a protective order if it finds that family violence has occurred and is likely to occur in the future. If the court makes such a finding, it is required to issue a protective order applying only to a person found to have committed family violence. In addition to the statutory prohibition, the court must include as part of the protective order a provision prohibiting the person found to have committed family violence from possessing a firearm (unless the person is a peace officer). Under certain circumstances, the court may issue a temporary ex parte order.
Under current Texas law, a person who is determined to be a risk to themself or others is not only removed from where they may access their firearms, but placed into a facility where they will not have access to other dangerous instrumentalities and will receive treatment. The new wave of red flag laws are designed for one purpose: to take away firearms. This objective was clearly reflected by a question posed by a Senator during my testimony before the Texas Senate Select Committee on Violence in School and School Security. After I posed the question as to why a person’s firearms would need to be confiscated while that person was being detained, evaluated, and treated because the person will have been removed from where they could use their firearms, one Senator responded, “Why not?”
Obviously, for like-minded legislators, the issue is not about protecting against the risks of those who are a potential risk to themselves or others, but about gun confiscation. What these legislators want is a procedure where, even though the person isn’t really a sufficient risk of harm to themself or others, a procedure with a significantly lower threshold is available to take away their firearms.
If a person truly posses a serious risk of harm to themselves or others, the focus must be on the person, not their firearms. Simply removing the firearms ignores the real problem. Also, any lower due process threshold making it easier to take a person’s firearms as opposed to detaining the person is legally dubious and factually unsupportable. This is particularly true where, if the person is truly a danger to themselves or others, existing Texas law allows for the detention and treatment of the person in a mental health facility where they are removed from not only their firearms, but other potential instruments by which they could cause harm. They are also prevented from obtaining other firearms illegally.
As has been the problem throughout history, lawmakers seem to believe that every tragedy requires new legislation, most times for no other purpose than promoting their own political careers. Rarely would these new laws have prevented the tragedy the legislators are reacting to, and are often nothing more than poorly-designed additions to already-existing laws. This is clearly the situation in Texas and the proposal for “Red Flag” laws. Published in