Model legislation released by the U.S. Department of Justice Monday suggests school officials should be allowed to petition courts to restrict students’ access to guns if they are deemed a threat to themselves or others.
That provision under state “red flag laws” could give principals and superintendents a tool to intervene in the most extreme threats of violence, acting on research that shows school shooters often signal their intentions beforehand.
But allowing schools to file such reports could also add to existing concerns from some civil rights advocates and gun rights groups about providing adequate due process for individuals who are identified as potential threats.
“Research has shown that states can save lives by authorizing courts to issue extreme risk protection orders that temporarily prevent a person in crisis from accessing firearms,” the model legislation says, later adding that the agency “is not endorsing any particular formulation of a [red flag law], and the model is not intended to provide a comprehensive scheme that could be adopted wholesale.”
Red flag laws, also known as extreme risk protection orders, surged in popularity after the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., in which a former student killed 17 students and adults with an AR-15 rifle he had legally purchased a year before. At the time, just five states had such laws.
A wave of state legislatures, including the GOP-controlled Florida statehouse, passed such bills in the years since the shooting. Under varying provisions, the laws allow families and other petitioners to ask courts to temporarily suspend firearms access. Today, 19 states and the District of Columbia have enacted them.
But, though youth gun access is a frequent concern after school shootings, just a handful states — California, Hawaii, New York— include school administrators in their lists of those eligible to file such a report. More states may consider doing so if they follow the federal framework, which was released to comply with an April executive order signed by President Joe Biden following mass shootings in Boulder, Colo., and Atlanta.
New York was the first to include school principals in its red flag law, winning support from teachers’ union representatives like American Federation of Teachers President Randi Weingarten, who appeared alongside Gov. Andrew Cuomo in support of the legislation.
Hawaii soon followed New York, adding “educators” as those who may file a report. California expanded its law to include teachers as reporters in 2020.
Citing those states, the Justice Department model legislation lists school officials as potential petitioners, alongside people like law enforcement officials, family members, other household members, intimate partners, and health-care providers.
The state laws allow petitioners to cite varying forms of evidence that people may present a threat to themselves or others. The court may then restrict their ability to purchase and possess guns, sometimes taking immediate preliminary action before they consider a longer-term, more permanent petition.
Gun violence groups say that authority can not only aid in the prevention of mass shootings in places like schools; they also credit the legislation with helping to prevent suicides, a growing concern for educators.
The suggestion of including educators in red flag laws comes after years of emphasis on threat assessment procedures, through which school teams identify and support students in need of behavioral support to address misbehavior and concerns about potential violence and to help keep them on track in the classroom.
Those threat assessment teams typically don’t have authority to suspend a student’s access to guns, but they may make special school behavioral plans or, in some states, petition to have a student undergo a formal psychological evaluation. In Parkland, for example, a threat assessment team had previously referred the confessed gunman to an outside mental health agency, according to a consultant’s report commissioned by the school district. That agency determined it was not necessary to pursue a court-ordered psychiatric commitment.
The threat assessment process is based on federal research that shows most school attackers tell close friends and families about their plans beforehand, and those close to them sometimes struggle to intervene or don’t recognize the severity of the threat.
But some have warned that school threat assessment procedures can be harmful if not carried out correctly or consistently. In 2018, for example, the Portland Oregonian reported on a family’s frustrating experience after their son, who is on the autism spectrum, was flagged as a potential threat at school. The family struggled to learn about the nature of the complaint and how to remedy educators’ concerns, the paper reported. Though it was not legally required to do so, the family voluntarily surrendered its guns during the process.
John Kelly, a former president of the New York Association of School Psychologists, told the Associated Press in 2019 that he expected schools would only file petitions for extreme risk protection orders in the most extreme cases. Any report should consider the context of a threat and a student’s behavioral history, he said.
“It’s not a quick judgment,” Kelly told the AP. “It’s not based on hearsay.”
Gun rights groups have expressed concerns about red flag laws more broadly, saying they are concerned courts could suspend a person’s access to firearms without adequate evidence. Though the National Rifle Association expressed initial support for red flag laws after the Parkland shooting, the organization later said state laws needed to give the subject of extreme risk protection orders the ability to challenge them before they take effect.
And some state ACLU chapters have criticized pending extreme risk protection bills in their states for being too broad.
