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Massachusetts’ ‘Red Flag’ Gun Law Needs An Update04:19
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A Dayton Police detective wears his sidearm in a holster on Aug. 6 in Dayton. (John Minchillo/AP)
A Dayton Police detective wears his sidearm in a holster on Aug. 6 in Dayton. (John Minchillo/AP)

As the nation reels from the latest mass shootings in El Paso and Dayton, and this week’s news that four young men in four states were arrested for alleged plans for more mass shootings, there are calls for more states and the federal government to adopt so-called extreme risk protection orders (ERPOs), also known as red flag laws. Starting with Connecticut in 1999, Massachusetts, along with 14 other states and the District of Columbia, adopted similar laws.

But our law, adopted in July 2018, needs refinements.

Extreme risk protection orders allow police and certain others — but not clinicians in Massachusetts — to petition a district criminal court to order the police to remove gun licenses and guns from dangerous people. As a clinical matter, dangerousness for some is an imminent risk condition, and for others dangerousness is a chronic or intermittent but non-imminent risk. The NRA tweeted last November, “Someone should tell self-important anti-gun doctors to stay in their lane.” Physicians responded that matters of gun safety surely are “in our lane.”

According to data from Massachusetts state Rep. David Linsky, sponsor of our Extreme Risk Protection Order (ERPO) gun-removal law, 2,287 people in Massachusetts were killed by gunfire in the last decade, and 55% of all gun deaths in Massachusetts in 2015 were suicides.

Current federal and state laws have the goal of prohibiting dangerous people from owning guns. While studies have repeatedly shown only a small fraction of gun violence against others involves mental illness, mental illness plays a substantial role in suicide.

Extreme risk protection orders allow police and certain others -- but not clinicians in Massachusetts -- to ... remove gun licenses and guns from dangerous people.

Our current federal and state patchwork of laws is over-inclusive: limiting gun ownership from those who are at low risk of violence. This includes those convicted of nonviolent crimes like theft, fraud or embezzlement.

The patchwork is also under-inclusive: not limiting gun ownership by others who are at significant risk. This includes some people with depression who have never been civilly involuntarily committed, in addition to people who are frequently drunk and belligerent, on no-fly lists, violent gang members and those who express hateful and violent speech.

Under our Massachusetts ERPO, other than police, only people in the direct orbit of the dangerous gun owner can petition the court to have a gun-removal hearing: this includes individuals who are blood-related, married, residing with, dating, engaged or sharing a child. (Importantly, the law protects petitioners from civil liability for failing to petition.) Note who are missing and have no right to petition the court: physicians and other licensed clinicians.

But often, clinicians are the very people who are not only trained to assess gun violence risk (and low risk), but are privy to concerning information about the gun-owning patient and capable of providing the court with expert testimony or affidavits.

Separate from the ERPO law, Massachusetts has long entrusted chiefs of police with the discretion to approve or rescind gun licensure. The statute balances this authority with provisions for citizens denied guns to seek court redress. In addition, any person can legally contact the police and express concern that another person should not have access to guns because of imminent or long-term dangerousness. But here again, federal HIPAA privacy laws bar medical professionals from contacting the police unless the patient is both seriously and imminently dangerous to self or others, which constitutes a genuine emergency.

However, many, many gun-owning patients are at serious chronic risk of violence, although not imminently so. Think: intermittent drinkers, people with dementia, people who get into fisticuffs, people who relapse into depression or psychosis. They are at high chronic risk but not imminent risk of gun violence to self or others. And clinicians are thus barred from raising concerns about them with courts or the police.

Most gun violence to others involves people who are personality-disordered or people who are dealing with anger, entitlement, grudge, intoxication, family arguments, gangs, crime commission and criminal subculture — but not serious mental illness. This distinction is critical because physicians, often in emergency rooms, encounter dangerous people who should have no gun access, but who cannot and should not be committed to a psychiatric unit because they are not mentally ill.

It is useful to compare Connecticut, a state similar to ours. In Connecticut, typically after a call from a worried citizen, the police investigate, may seize the gun and file with the court. During the law’s first eight years, only about 10 gun seizures a year were instituted. Then, following the Virginia Tech 2007 mass shootings, the seizures increased to around 100 a year through 2013. An analysis of 762 gun seizures yielded the estimate that one suicide was averted for every 10 to 11 seizures.

According to the Massachusetts Trial Court (and as reported by WBUR), in the state’s first year with our ERPO: 20 petitions were filed, and 19 resulted in emergency hearings; 14 extreme risk protection orders were issued at the hearings (three were denied while two others were "not held" or rescheduled); and in 15 cases, items such as firearms or ammunition were surrendered.

So in our state of 6.7 million — almost twice that of Connecticut’s — we are petitioning only one-fifth as frequently. In my experience as a forensic psychiatrist, I see two dozen cases meriting petition a year, easily.

Massachusetts should modify our ERPO law to allow certain categories of licensed clinicians to petition the courts for an extreme risk protection order. Clinicians should be allowed to do so via a downloaded document, such as exists for initiating mental health involuntary commitments. This will allow clinicians to petition the court without leaving their clinical settings.

Massachusetts should also enact a law that allows certain categories of licensed clinicians to report to the police chief where the patient lives and that the patient should not have gun access. This should be based on a judgment about dangerousness, not mental illness. The disclosure of medical information relating to dangerousness should be as narrow as possible. Something like:

Chief, this is Dr. Rosmarin. In my opinion this person is dangerous and should not have a gun.

The chief would then have discretion to interview the owner, revoke the license and to seize any guns.

So in our state of 6.7 million -- almost twice that of Connecticut’s -- we are petitioning [for the removal of a gun] only one-fifth as frequently.

The clinician who breaches confidentiality about gun dangerousness would need to be statutorily protected from civil, criminal or licensing board liability, if the report was made in good faith. This is the same standard that is used for physician-generated “pink papers” for commitment to a hospital. The attorney general would probably have to request permission from the department of health and human services for a HIPAA exemption requiring both serious and imminent risk so that patients who pose a chronic, non-imminent risk can be reported.

But immunity for reporting is not enough. The licensed clinician must also be legally immunized for failure to report the person to the chief of police or to petition for an ERPO. This parallels the current law’s immunity for non-clinician petitioners who are aware of dangerousness but take no action.

Without civil and licensing board immunity for failure to report there will be the perverse incentive to over-report, which could worsen the danger instead of lessen it. It’s impossible for a clinician to mitigate risk if a patient leaves or avoids treatment, for example. The law must find a balance that preserves clinicians’ expert judgment and autonomy, without creating a system that encourages defensive medicine.

Guns and dangerousness are a part of everyday medical practice, and many clinicians face quandaries when faced with dangerous, non-commitable patients. Enactment of these proposals would enable clinicians to use their clinical judgment to protect their patients and others.

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This segment aired on August 22, 2019.

Related:

David Rosmarin Cognoscenti contributor
David Rosmarin, MD, leads the Forensic Service at McLean Hospital, which focuses on risk management with emphasis on risk assessment for violence and suicide. 

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