We’re taking an ostrich approach to enforcing gun laws — with deadly results
The Colorado Springs LGBTQ+ nightclub shooting shows the limits of red-flag laws and the need for multiple approaches to prevent mass shootings. In 2021, the suspect in this shooting was arrested after reportedly threatening violence with a bomb, “multiple weapons” and ammunition. The threat was serious enough that police evacuated neighbors. Still, law enforcement did not seek a red-flag order, perhaps because the county commission had declared the county to be a Second Amendment sanctuary.
States such as Colorado with red-flag laws clearly need to use them more, especially where there is violent hate speech. The 31 states that do not have red-flag laws should pass them immediately. But, as a supplement to red-flag laws, we should empower law enforcement to prevent mass shootings by removing firearms from people who are prohibited from possessing firearms without a red-flag order.
The St. Louis school shooting in October illustrates. Just nine days before the deadly rampage, police said the shooter’s mother called 911 and asked them to remove her troubled son’s AR-style rifle. The police declined to do so, explaining that they did not have “clear authority” to confiscate the rifle that day because Missouri does not have a red-flag law. But unbeknownst to the officers, the shooter was committing a crime simply by possessing the firearm.
We know gun possession was a crime because earlier that month the shooter failed a federal instant background check. Licensed gun dealers in every state must run a background check to see if would-be purchasers fall into any of the federal or state prohibited categories. But bizarrely, police are not allowed to use the background check system, even when they have good reason to suspect that a person standing right in front of them is in illegal possession of a firearm. Blindfolding the police in this way likely contributed to the St. Louis tragedy and may lead to more gun deaths until the policy is changed.
Police shouldn’t have carte blanche to initiate background checks on private citizens. But when police have probable cause to believe that an individual falls into a category that prohibits possession, they should be able to query the database. This probable cause requirement parallels the prerequisites for other types of police searches and means that the background checks would satisfy the constitutional requirements of the Fourth Amendment.
The St. Louis tragedy provides a vivid example of probable cause. The family told police that the gun owner had “spent time in and out of mental health programs.” This information should have been a sufficient justification for the police to check the database, because federal law prohibits firearm possession by individuals who have been involuntarily committed to a mental health facility.
Law enforcement asked more than two decades ago for the authority to check the federal database as part of their criminal investigations. The justification given for denying that request was gun-owner “privacy.” That was never a good justification. Prior mental health treatment is sensitive information, but background checks don’t reveal it. When gun dealers run background checks, the only information they receive is either “Proceed” or “Denied” (or in rare cases “Delayed”). They are not told which of several possible reasons is the cause for a denial.
Police would get the same limited information (“Proceed,” “Denied” or “Delayed”) that gun dealers receive. A “Denied” would establish that an individual is prohibited from possessing a firearm and would justify gun removal. Owners whose firearms were removed after a denial would be able to challenge that result under an existing FBI appeal process. Or they would be able to ask a state court judge to return their guns by showing that police lacked probable cause for initiating the background check in the first place.
Today, most background checks are completed expeditiously, with more than five out of six performed immediately. The police would be able to use the results of a background check to remove a gun only if the FBI sent an unequivocal denial. For those queries that remain unresolved, the police would have to wait or justify firearm removal on an alternative basis — for example, by discovering that the gun owner had a felony record.
Removing this blindfold from police is increasingly important because of the gaping private sale loophole that avoids the background check requirement. A 2017 survey found that “22 percent of gun owners reported having purchased their most recent gun through a transaction that did not require a background check.” After the St. Louis shooter was blocked from buying a firearm from a federally licensed gun dealer, he exploited the private sale loophole by reportedly buying the AR-style rifle that he used from a private seller who wasn’t required to perform a background check.
Even if Congress finds the intestinal fortitude to do what 84 percent of voters want and they close the private sale loophole, it would still be important to let police initiate their own investigative background checks. People who initially pass a background check and lawfully acquire a gun may subsequently become illegal possessors. This can happen, for example, because they are subject to a temporary restraining order, convicted of a felony, or involuntarily committed to a mental institution. Most states have no credible system of dispossessing gun owners who are no longer legal possessors — even people who have just been convicted of violent felonies.
Because of the twin problems of loophole private purchases and post-sale disqualifications, millions of Americans unlawfully possess firearms. Some states periodically require drivers to retest their ability to safely operate an automobile, but most states never retest whether gun owners fall into prohibited categories. Especially in a world where we do not systematically check all gun owners, it is important that police be able to check when they have a reasonable suspicion of illegal possession. We shouldn’t bury the heads of law enforcement in the sand.
Ian Ayres and Fredrick Vars are law professors at Yale University and the University of Alabama, respectively, and co-authors of the book “Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.”