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‘Red flag’ gun legislation returns to Utah Capitol

2 proposals look at how weapons should be removed if someone believed to be a threat to self or others

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Rep. Stephen Handy

Ravell Call, Deseret News

SALT LAKE CITY — The Utah lawmaker who sponsored a failed “red flag” bill last year to get firearms away from someone deemed to be in danger of harming themselves or others is bringing the legislation back to the Hill.

Rep. Steve Handy, R-Layton, said he is trying again with HB229 to create an extreme risk protection order because there is a great deal of data showing its effectiveness. The bill would enable a family member or someone from law enforcement to request that the court strip a firearm from a person in crisis.

Sen. Daniel Thatcher, R-West Valley City, also introduced a bill pertaining to guns, but emphasized HB87 is not a red flag bill. Thatcher, who opposes extreme risk protection orders, said his legislation would make a “simple” change to an existing system and wouldn’t “infringe on someone’s constitutional right.”

The bills — the first gun related legislation to surface during the 2020 session — are already generating response from both Second Amendment supporters and those who want to see tighter restrictions on firearms.

Handy said there’s at least 20 years of history showing the provisions in his bill work. Utah wouldn’t be the first to enact an extreme risk protection order — 18 states plus the District of Columbia already have a similar option in place.

Following a family member or law enforcement officer’s request, the court could set a hearing within 14 days where the firearm’s owner would have the opportunity to present their case. As the bill is written, the judge could then return the firearms or restrict the owner from possessing one for up to a year.

That person could be in danger of hurting themselves or others, Handy said, pointing out that one of his focuses for the bill is the opportunity to reduce suicides.

He pointed to a study overseen by the Utah Department of Human Services that found 85% of firearm deaths from 2006 to 2015 in Utah were the result of suicide. The study also shows that firearms account for roughly 50% of suicides in Utah.

“We have a public health problem and a lot of people think, including law enforcement and the suicide prevention people and mental health people, that this is an opportunity — a tool in the toolbox — to hopefully save some lives and reduce violence while still protecting a constitutional right,” Handy said.

His efforts in 2019 met an abrupt end during the legislative session. The 2020 bill is essentially the same as last year’s legislation, Handy said.

Clark Aposhian, chairman of the Utah Shooting Sports Council, argues that extreme risk protection orders are unnecessary, unconstitutional and often misused, citing family law and divorce cases as examples.

Aposhian, who successfully fought a protective order sought by his-ex wife after a 2013 incident, said there should be a very high evidentiary standard to infringe on someone’s right to bear arms. He believes extreme risk protection orders don’t meet that bar.

He also took issue with the time it might take a judge to hear the case.

People have been trying to pass this act for 20 years, Aposhian said, and still 32 states have rejected it. He believes Utah already has existing laws that can effectively separate people in crisis from their guns, as well as get them mental health help.

“All (extreme risk protection orders) are doing is taking one of their many tools away from that person — a firearm. And they are leaving the person — that is, the dangerous item in the equation — completely alone,” Aposhian said. “We strongly recommend that person be helped through their crisis if they are in fact ... dangerous.”

Handy said that though some people say red flag laws are unconstitutional and have no due process, extreme risk protective orders have never been overturned on a constitutional challenge.

Ermiya Fanaeian, a gun control activist and co-founder of March for Our Lives Utah, voiced her full support of Handy’s bill and called it something that those in the gun violence prevention movement have been waiting for.

“Not only is this going to prevent the potential for somebody to harm others, but also the potential to harm themself,” Fanaeian said.

Nevertheless, Fanaeian said she is skeptical about the bill’s chances..

“After seeing how much the gun reform bills were struck down, I’m not so optimistic this session,” she said. “But of course we’re still going to be fighting tooth and nail to do what we can and to pass what we can.”

Handy said he doesn’t think a lot of lawmakers understand the legislation, nor are they currently focused on it. However, now that the bill will start moving, he feels there may be a better opportunity.

“There is some other legislation that people are trying to do because they don’t like this way to do it,” Handy said, referencing Thatcher’s HB87. “But there’s 20 years of history on extreme risk protective orders and we know quite a bit about them, and there’s some very good data about how effective they are.”

Thatcher’s bill would make a small alternation to state code. Currently, if an individual’s gun has been handed over to law enforcement, they can retrieve their property from police at any time by walking into a station and asking for it back. Once police check and make sure the owner is not a restricted person, the firearm is returned to them, Thatcher said.

Thatcher’s legislation would require police to also check court records to make sure there is not a pending action that could prohibit the person from owning a firearm.

“It uses existing restrictions that we have already established are appropriate restrictions. It doesn’t create any new crimes, it doesn’t restrict any new people who weren’t restricted before,” Thatcher said. “It’s really pretty minimal.”

Aposhian said he still has some concerns because the legislation doesn’t adequately explain how an owner can prove they are competent to get their firearm back.

The owner of the firearm has to prove on a “subjective basis” to a law enforcement official that they are able to possess that firearm, Aposhian said. That’s challenging.

Fanaeian also voiced her support for Thatcher’s bill, saying that even though it proposes a simple change, it would still create efforts to ensure firearms aren’t going into the hands of those who are potentially at risk.

“Law enforcement can very much give the firearm back and the individual can be completely fine,” she said. “But we have also seen time and time again where it’s gone the opposite direction and law enforcement has given the firearm back to the at-risk individual and that individual has done some incredibly dangerous action with that firearm.”