Magazine | March 19, 2018, Issue

Gun-Violence Restraining Orders Can Save Lives

(Luba Myts)
An underused tool to prevent mass shootings.

In the annals of “See something, say something,” there are few more heartbreaking and infuriating reads than the transcript of an informant’s call to the FBI on January 5, 2018. In a 13-minute detailed report, a person claiming to be close to Parkland, Fla., school shooter Nikolas Cruz described in excruciating detail Cruz’s mental problems, his violent tendencies, and the concern that he would go “into a school and just [shoot] the place up.”

The caller listed Instagram accounts, described pictures of Cruz posing with guns, and said that Cruz was “into ISIS” and had threatened his mother with a rifle before she died. The FBI did nothing. Five weeks later, Cruz walked into Marjory Stoneman Douglas High School, opened fire with his AR-15 rifle, and killed 14 students, two coaches, and one teacher.

A single FBI failure to act would have been bad enough, but it turns out that person after person had called authorities to report Cruz’s behavior, including — most notably — Cruz himself. He called local authorities to say that he was “dealing with a bunch of things.” He told police that he’d been in a fight and was struggling with the death of his mother.

Nothing was done. No one acted. Then Cruz killed kids.

As America reels from the latest mass shooting, three trends are emerging. First, time and again mass shooters raise red flags before their fatal rampage. They’ll exhibit evidence of radicalization (as did the Orlando, Fla., nightclub shooter and the Fort Hood killer), they’ll exhibit evidence of extreme mental distress (as did the Sandy Hook shooter and the Virginia Tech killer), or they’ll engage in dangerous or threatening behavior (as did Cruz). Both sane and insane killers have a hard time keeping their murderous intent to themselves. They broadcast their dangerous proclivities, especially to those who are closest to them.

Second, the bureaucratic systems designed to protect the public fail with depressing regularity. Since 2015, mass shootings in Charleston, S.C.; Orlando; Sutherland Springs, Texas; and Parkland happened after federal authorities either failed to properly update the background-check system or failed to follow up on warnings from the public. The Virginia Tech shooting happened after a state court judged the shooter to be a danger to himself, yet that information was never passed on to the federal background-check database.

Third, family members and others close to shooters often see warning signs but don’t possess the legal tools necessary to intervene. The Tucson mass shooter and the Aurora, Colo., killer both had extensive histories of troubling conduct but did not exhibit behavior that would have required institutionalization.

Conservatives and liberals respond to these failures differently. Liberal gun-control advocates lead with simple, repetitive responses: Make it harder to purchase firearms. Ban the “deadliest” weapons. Ban high-capacity magazines. Conservatives hear the rhetoric and roll their eyes. As Washington Post fact-checker Glenn Kessler has shown, not one of these so-called commonsense gun restrictions would have stopped any mass shooting since 2012.

Such restrictions also represent a form of collective punishment. The only people who we know would be affected by a so-called assault weapons ban are law-abiding Americans. Criminals — especially mass killers, who often plan their attacks months in advance — would have no problem circumventing purchase restrictions in a nation awash in millions of AR-15s, tens of millions of high-capacity magazines, and hundreds of millions of semi-automatic handguns and rifles.

Conservative responses are more promising. The leading “left of boom” suggestions — enforcing existing gun laws better and strengthening the nation’s mental-health system — at least have the virtue of targeting actual criminals or providing greater resources to identify and institutionalize the dangerously mentally ill. But they both still depend on large, impersonal bureaucracies to perform vital functions — the very bureaucracies that we’ve seen are most prone to failure.

But there is something new under the public-policy sun, a proposal that both the Left and the Right can embrace — a “left of boom” solution that can keep guns out of the hands of dangerous people without the collective punishment of larger gun-control proposals and without relying on vast bureaucracies to function beyond their demonstrated capacity. The proposal is targeted, protects due process, and is already saving lives.

It’s called a gun-violence restraining order, or GVRO.

On February 16 — two days after the Parkland massacre — I wrote about the GVRO in  National Review Online. I described the GVRO as a local-court order that allows law enforcement to temporarily remove guns from a potential shooter’s home. It is usually sought by a person in a close relationship with the potential shooter. A well-crafted GVRO law should contain the following elements:

1) It should limit those who have standing to seek the order to close relatives, those living with the respondent, and perhaps also school principals or employers.

2) It should require petitioners to come forward with clear and convincing evidence that the respondent is a significant danger to himself or others.

3) It should grant the respondent an opportunity to contest the claims against him.

4) In the event of an emergency, ex parte order, a full hearing should be scheduled quickly — ideally within 72 hours.

5) The order should lapse after a defined period of time (30 days would be acceptable) unless petitioners can produce clear and convincing evidence of continued need.

The GVRO avoids bureaucracies. Family members or principals could go straight to local court. It imposes accountability. Local judges would be forced to rule promptly on the request, and if the order were granted, local law enforcement would be forced to respond quickly. It protects liberty. A high burden of proof and a requirement that petitioners provide admissible evidence such as sworn statements, photographs, or text messages would limit the chances of abuse. Finally, the process is familiar. Americans are used to restraining orders in other contexts, and the GVRO wouldn’t have a steep learning curve.

Though the idea originated in progressive circles, there’s nothing inherently left-wing about a GVRO. California, Washington, Oregon, Indiana, and Connecticut have passed various versions of GVRO laws, and similar proposals are under consideration in at least 18 states. The Trump administration is considering backing the concept.

In fact, I can’t remember writing a piece that received a larger, more positive bipartisan reaction than my online piece supporting GVROs. America faces a strange reality. Even as overall gun crime has decreased dramatically, mass killings are on the rise. Each one is a shock to our nation. Each one claims too many innocent lives. Each one escalates the gun-control debate and exacerbates political polarization. Americans are desperate for an effective and constitutional response.

There is no single solution to mass killings, but GVROs could help turn the tide. A number of people could have stopped the Parkland massacre. And that’s not the only killing that could have been prevented. The Las Vegas shooting is an exception, but it’s easy to identify other shootings before which a GVRO could have given family members or school officials a fighting chance to stop a tragedy.

When bureaucracies fail, “See something, say something” just isn’t enough. Empowered by a GVRO, families and school officials may finally be able to do something — and save lives.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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