Making the red flag fly: Examining a nearly decade-old law

Another legislative session is over and new laws are about to go into effect that will change things, some things, in Oregon. Right?

What people around government know and everyone else should, is that passing a law is one thing and getting it to work as intended is a whole different matter. 

Consider legislation from nine years ago and working only in part: the red flag law.

A decade ago, many Second Amendment advocates argued that the problem with persistent shooting deaths was not so much the broad availability of guns as the ability of specific dangerous people to get hold of them. A response to that emerged around the country in the form of red flag laws, which provide for removal of weapons (mostly but not exclusively firearms) from people who seemed at high risk of harming themselves or others. 

Oregon’s track record on shootings tends to follow national rates, by population. It does have a below-average number of shootings of one person by another, but also has an especially high rate of suicide by firearm. 

So far, 22 states including Oregon have enacted red flag-type laws. (Those without are mainly Republican-led states, and one, Oklahoma, has a law generally barring them.) Some of these laws refer to Extreme Risk Protection Orders (that’s the proper name in Oregon), and others refer to Risk Warrants, Gun Violence Restraining Orders or Extreme Risk Firearm Protection orders. The operating idea is similar.

The process for using it starts with someone either in law enforcement or in the family or household of the person thought to be a hazard applying to a court for an order. If the order is approved, notice is served on the person. Any readily available firearms must be turned over either to law enforcement or a third party, who could be a friend or relative. 

A judge considering an order has to consider risk factors specified in state law, including reports of threats of suicide or violence (or past history of those things), lawbreaking involving violence or drug abuse or other indicators. 

In August 2023, the Secretary of State’s Office reviewed the results so far of the 2017 Oregon red flag law, which took effect in 2018. The resulting report sounded ambiguous: The red flag concept had potential which was so far unfulfilled, the report suggested.

“In the first 4 and a half years that Oregon’s ERPO [Extreme Risk Protection Orders] law was in effect a total of 564 petitions were filed, with the vast majority requested by local law enforcement,” the report said. “Respondents only requested a hearing to challenge an order in about a third of these cases, with the orders being upheld about half of the time. ERPO use has varied widely among counties, with seven counties not having any since the law was implemented.”

As national use has varied — states such as Indiana and Florida use it more than Oregon — so do Oregon’s 36 counties vary not only widely but unexpectedly. You might guess heavier use of it in Multnomah County than elsewhere, but the numbers of red flag orders issued was higher in raw totals (and much higher per capita) in Washington and Deschutes counties and much higher per capita. 

The highest number of orders in any county in Oregon per capita was — brace yourself — in Lake County (with 99 orders per 100,000 people). The second-highest per capita rate was in another haven for the Second Amendment, Josephine County. 

Why the disparity? When Portland City Councilor Steve Novick recently reviewed the state red flag report, he was puzzled by the low Portland rate.

In a March 3 email, Novick said “After doing some reconnoitering, I concluded that a major likely reason for that is that the Portland Police Bureau never prioritized training officers on the existence and use of the law, which was passed in Oregon in 2017. The PPB Behavioral Health Unit is trained in the law, and actually files the paperwork to initiate what are called “Extreme Risk Protective Orders,” or ERPOs — but they are largely dependent on patrol officers to identify and inform them of situations where ERPOs might be appropriate.” 

Novick convened a group to review this, and invited a police officer from Bend who talked about how the red flag law was used more there. Since, Novick said he received a note from Sergeant Josh Silverman of the Behavioral Health Unit, who said, “BHU officers and I are starting next month to teach a one-hour, in-person ERPO class at in-service to every sworn member of the bureau. It will take until December to get everyone trained up, as we’re running about one session a week for groups of 20–40 officers.”

That may have some practical effect. The lower use of red flag capabilities probably isn’t due either to an inability or unwillingness to use it, but to a failure to build it into a standing part of police procedure. Once it’s there, it may be used more often.

And a considerable number of lives may be saved, through a law put into effect as it was, so many years ago, originally intended.