PROVIDENCE, R.I. (WPRI) — Cumberland Deputy Police Chief Doug Ciullo remembers the first time his department used Rhode Island’s new “red flag” law: a local business was concerned an employee was a danger, and reached out for help.
It was last year, and Ciullo recalls talking to the mayor, who asked him if the police had done everything they could to ensure the community was safe.
“I realized, no, we haven’t,” Ciullo said. “We’ve got this law on the books. We could go ahead and apply for one of these orders.”
It was the first of five times that Cumberland police asked the courts to remove someone’s access to a gun under an Extreme Risk Protection Order, created by the red flag law that Gov. Gina Raimondo signed in June 2018.
A Target 12 review of court data shows police in Rhode Island have asked the courts to remove someone’s access to guns 21 times since the law went into effect.
Cumberland’s five petitions lead all communities. Cranston has gone to the courts four times, Woonsocket has done it three times, and it’s happened one time each in Barrington, Central Falls, Hopkinton, Narragansett, South Kingstown, Warren, Warwick, and Westerly. The state police also used the red flag law once, on a resident of Providence.
The map below shows the communities where police have petitioned the courts for a red flag order
Ciullo — who is also the department’s prosecutor — said he thinks Cumberland authorities have sought more orders than other communities because they’re familiar with the still-new process.
“It’s like anything else — once you do it and get comfortable with it you understand what needs to be done,” Ciullo told Target 12 during an interview at the police department. “We want to make sure that the community is safe, that the individual is safe, and we have this tool to use.”
Ciullo said Cumberland police ended up dismissing three of the five red flag petitions they filed with the court because “we were confident that the person was no longer a risk.”
Rhode Island is one of 17 states that has a red flag law on the books. (Neither Texas nor Ohio, where a combined 32 people were killed in mass shootings last weekend, have enacted one.)
The law allows a police department to ask a Superior Court judge to block someone’s access to guns — either by removing firearms from their possession or blocking their ability to purchase weapons — if they are deemed a danger to themselves or the community.
Red flag hearings are civil proceedings, not criminal ones. The hearings are closed to the public, and the individuals’ identities are not disclosed.
When police petition the courts for an Extreme Risk Protection Order, there is an initial hearing, usually that day, at which a judge decides if there is probable cause to think someone is risk. If so, the judge can issue a 14-day order to remove the person’s firearms. The initial court proceeding is “ex parte,” which means the individual is not notified or present.
If a judge agrees to issue the 14-day order, police are authorized to search the individual’s home and confiscate any firearms found there. A second hearing is then scheduled where police have to present “clear and convincing” evidence that the person is a potential threat to themselves or the community. That hearing is also closed to the public, but the individual is notified and can appear to argue on their own behalf.
After the second hearing, a judge can issue an order blocking the individual’s access to guns for up to a year. Violating the order constitutes felony contempt of court, carrying a punishment of up to 10 years in prison. The person has the right to petition for termination of the order once every 12 months.
Frank Saccoccio, president of the Rhode Island Second Amendment Coalition, said while the intent of the law is good, he thinks the way it is written in Rhode Island is unconstitutional because the subject of the red flag order is in the dark about the first hearing.
“You could be denied your constitutional right based on someone’s subjective determination they submitted in a hearing. You have no rights to be there and no notice of it,” Saccoccio said. “It’s a secret proceeding to remove your constitutional rights.”
But Allison Anderman, senior counsel for the nonprofit Giffords Law Center to Prevent Gun Violence, said every state with a red flag law has an ex parte hearing.
“In Rhode Island the [initial] order can only last for 14 days,” Anderman said. “Ensuring that a person who is dangerous doesn’t have access to a gun is very high public safety interest.”
A state-by-state analysis by the Giffords Center found that among the states with some sort of red flag law, Rhode Island is just one of three where only police can petition the courts for intervention. Other states allow family members or others from the community — like educators — to ask a judge to block access to firearms.
Anderman suggested Rhode Island should broaden that part of the statute.
“It’s family and household members and community members that are close to the shooter who are in the best positions to notice signs that people are dangerous,” she said. “In many cases, however, going to police may be the most effective path, but putting anything in between the crucial information that someone is in crisis is something we want to avoid.”
Saccoccio argues the bar at the initial hearing is too low, as well.
“What happens if somebody lied? What happens if somebody got it wrong? Now you have to go in front of a judge and say, ‘There is nothing wrong with me,'” Saccoccio said. “If there were an immediate risk of harm, yes, they should have some tool to go in there and stop that harm. But there are not enough safeguards to say, ‘What if they’re wrong?’”
The Second Amendment Coalition is considering filing suit against the red flag law if a compelling plaintiff comes forward, he said.
According to Anderman, none of the states that have enacted red flag laws in the last five years have faced a legal challenge, and older versions of the statute on the books in Connecticut and Indiana were upheld by the courts.
Now in the wake of last weekend’s massacres, members of Congress are considering whether to enact a proposed federal red flag law, including a bipartisan version sponsored by U.S. Sens. Jack Reed, D-R.I., and Marco Rubio, R-Florida. The pair reintroduced the measure in January after GOP Senate leaders declined to allow a vote on it in 2018.