When lawmakers in Massachusetts passed the so-called “red flag” law in July 2018, they touted it as a new and needed mechanism for family members to remove guns from someone in crisis. Supporters of the measure, formally known as the extreme risk protection order (ERPO) law, seldom talked about how it would affect law enforcement powers.
Nearly 18 months later, a review of more than two dozen of the 29 ERPO petitions filed through 2019 show that police appear to use the tool more than anyone — more than spouses, parents, romantic partners or any other close associates who the law allows to petition a judge to remove someone’s firearms.
Police chiefs have long been able to seize someone’s guns through other provisions of the state’s strong gun control laws, but with the red flag law, some officers said a litany of hurdles are cleared faster — allowing them to take guns and mitigate risks with less delay. Advocates for the law said that’s a good thing.
“That’s the hope,” bill sponsor Rep. Marjorie Decker said, “that moment when someone is in crisis, that there’s a much quicker way to assess the crisis and to remove somebody from their firearm.”
Before ERPO, police chiefs already could suspend or revoke someone’s gun license based on an “unsuitability” clause in the state’s firearms law. If the chief believed someone was “unsuitable” to possess a weapon because he or she was a risk to public safety, the chief could suspend that person’s license. But several police chiefs told WBUR that ERPO works faster than those older processes.
WBUR reviewed as many of the 29 petitions filed between July 2018 and Jan 1, 2020 as it could. (Four were impounded by the courts, shielded from public view.) Of the 25 petitions reviewed, 16 were granted for a least a year. Police filed 14 of the 25 petitions.
Under the law, a petitioner can ask a judge to remove guns immediately under an emergency order. If granted, there needs to be a hearing in front of a judge to extend the order within 10 days.
Walpole Police Chief John Carmichael, whose department filed one of the ERPO petitions, said that allows officers to help worried family members or gun owners they discover in distress.
“The police department could notify an on-duty judge and that judge can review the case and then issue the ERPO until the next court date,” Carmichael said. “You’re protecting public safety until that next court date. Making sure that person doesn’t have access to weapons.”
Many of the petitions painted a picture of people in crisis:
A woman in Taunton, who was already in a psychiatric hospital when the ERPO was filed, suffering from insomnia, depression, post-traumatic stress disorder, and suicidal thoughts. A Malden man police said was acting aggressive and angry, and asking officers about when he could legally shoot someone on his property. A Walpole man who told family members he was going to shoot himself.
Toby DaSilva is one of them. On July 31 last year, plagued by depression and anxiety, he decided he was going to end his life. He drove his car from his home in Middleborough to Boston, looking for a place to die. His Ruger pistol beside him was loaded with two bullets.
His family frantically called police, who tracked him to Boston Common. State troopers found him walking, unarmed, around the park. They put him in a police car, took his gun from his car, and brought him to Tufts Medical Center.
Nearly six months later, DaSilva said he believes police — and his family — saved his life by quickly taking his weapon away. He reflected on his thoughts about his 13-year-old son and what dying would have meant for him.
“I was in the hospital for three weeks, and I wasn’t able to see him,” DaSilva said. “That takes a toll on you when you don’t see your son for that long period of time. And if I actually went through with it, I would’ve never seen him. He would have never seen me.”
Now, DaSilva said, he’s medicated, seeing a therapist and has the support of his family. He’s working two jobs and sees his son regularly.
Police still have his gun. He was still hospitalized when the hearing to take his gun away for a year was held last August. He wants the pistol back because, he said, he’s doing the right things and feels better. But he worries about how the judge who will weigh whether to extend the petition past this August might perceive him.
“It’s up to the judge on what he thinks and how fit I am. But I’m kind of wary because when you see the word depression, he might take it as like, ‘Oh, he’s not capable of having it because of his depression or anxiety. He could go back to his old ways,’ ” he said. “Which I don’t think is true in my eyes.”
DaSilva’s case of avoided self-harm reflects one of the main concerns lawmakers wanted to address by passing ERPO. They also were focused on people who might be a threat to others.
That’s why Lakeville police showed up at Cynthia English’s house one afternoon in September 2018. After a months-long dispute with her next-door neighbors that included a harassment prevention order being filed against her, court records show police filed an ERPO against English based on a claim by one of the neighbors that she told them, “shut up, I’m packing.” English denied she said anything like that.
English, 68, ended up losing her firearms license and guns – a .38 Special revolver and Walther PPK pistol – for a year. When police showed up at her house, she said she felt defenseless and defeated.
“I felt like I was having a heart attack,” she said. “I couldn’t breathe. I was shaking and, unfortunately, I started crying. You can tell I’m not a crybaby.”
When the year-long suspension was up last September, English’s gun license had expired. She worried that police, who a year ago had said under oath that she was not safe to have weapons, would deem her “unsuitable” and refuse to sign off on her license.
Instead, Lt. Sean Joyce – the same officer who petitioned the court to take away English’s guns and license a year ago – signed the back of her firearms ID card. “It’s ironic,” she said. “Isn’t that what irony is? He’s the one who gave it back to me, and he acted like my best friend when he gave it back.”
Lakeville’s current police chief, Matthew Perkins, declined to talk about the case. He was not the police chief when the ERPO was filed against English.
After her experience, English said she lost her faith in the justice system. She questions the quality of evidence presented in these ERPO petitions. Even in cases of suspected mental illness, she wonders, is it based just on the statements of one person? Is it a “he said, she said” situation, like how she views her own?
“I think I was really railroaded,” she said. “I think I was treated poorly. I was treated like a second-class citizen and there was no evidence to support what she said. And I just feel really wronged.”
Jim Wallace, of the Gun Owners Action League, said stories like English’s trouble him.
“The bottom line is it’s incumbent upon us to make sure we protect people’s public safety,” he said. “But it’s also incumbent upon us to protect their civil rights and due process.”
For Wallace, the power police chiefs had to take away guns before the ERPO law makes him question whether the law was necessary.
“Police already had this authority,” he said. “We’ve never liked it, but it has existed for a long time that they can suspend a license for virtually no reason.”
Still, police leaders championed the benefits of ERPO, including its speed and efficiency in emergencies.
Malden police Capt. Glenn Cronin, whose department has filed three petitions, explained the ERPO fast tracks powers police previously had. Unlike having a chief revoke a license, an emergency ERPO petition can move through the court system at all hours of the night. In many cases, police were able to go into the person’s home and within hours seize the guns and license.
Cronin recalled the department’s most recent ERPO petition. A man was having what Cronin called an “epic meltdown.” The petition filed said he was behaving with “extreme aggression” and was “acting irate,” and that he asked officers about when it was legal to shoot someone on his property.
“We went in front of the judge and the judge issued it,” he said. “And we went right to the house … We just felt as though we had to get these out of his hands, because at that point, he did not seem a suitable person to be carrying … any type of weapon.”
Cronin said every time the department brings someone to the hospital for psychiatric reasons, officers check if that person owns guns.
“And if they do, we are definitely going with the extreme protection order for their own protection and maybe people that they live with,” he said.
Chiefs also noted that police sometimes essentially stand in for family members or others concerned about their loved one. Rather than sending a distraught person to the courthouse to fill out the petition, officers do it themselves.
“What law enforcement sometimes does, is we step in to take over that role and just take the burden off the family,” Carmichael, the Walpole police chief, said.
Court records show that ERPO isn’t always needed to get guns out of the house. In the 21 cases where an emergency ERPO was granted, weapons were only seized 14 times. That’s because the person either didn’t have weapons, or they’d already been taken through another means, such as a prior arrest or police encounter.
And Massachusetts’ infrequent use of the ERPO statute stands in stark contrast to many of the 16 other states with similar laws.
Oregon has seen 166 ERPO petitions filed in just under two years. Florida used it 2,000 times over a year-and-a-half. Connecticut was the first state to enact an ERPO law in 1999; a record 260 people had firearms seized in 2018.
Most of the 17 states that have red flag laws, like Massachusetts, allow family or household members to petition the courts. Three states, including Florida, only allow law enforcement to file, and Connecticut allows only police and prosecutors to seek ERPO.
Police chiefs and one of the law’s authors, state Rep. David Linsky, said there’s such a low number here because Massachusetts already has some of the most rigid gun laws in the country. In addition to the suitability clause, people can also have guns taken away as a condition of a restraining order.
The Giffords Law Center, a gun control group, ranks Massachusetts fifth among all states when it comes to gun law strength.
“One has to look at this law in context with all of the other Massachusetts extensive firearms laws,” Linsky said. “And the reality is that no one law can solve our firearm violence problem. It takes a whole group of different practices and procedures and statutes to be able to decrease firearm violence.”
There are also just fewer guns in Massachusetts. According to one measure used by researchers, which relies on the firearm suicide rate, 22 percent of Mass. residents own a gun. That’s nearly dead last, slightly more than Hawaii.
The small number of petitions doesn’t mean Massachusetts law isn’t effective, said Kelly Drane, research manager for the Giffords Center. More important than the number, Drane said, is the implementation of the law. Are court clerks and police trained on the law? Are there materials about the law in courthouses and police stations?
“If it’s 29 orders and a really strong implementation plan, then 29 orders may have been all that Massachusetts needed,” Drane said.
Decker, the lawmaker who sponsored the bill, said she’s not concerned by how many petitions have been filed, or by who, but that people have access to them when they need them.
“My hope is that every person,” she said, “who feels that somebody in their home is going to hurt themselves with a gun, or who’s going to hurt someone else with a gun, knows that there is a law out there that has been passed that makes it possible for them to ... reach out for help.”
This story was first published by WBUR 90.9FM on the wbur.org website on Feb.3. The Reporter and WBUR share content through a media partnership.