Could red flag laws be replaced by involuntary commitment?

Image via Never Back Down/X.

Gov. Ron DeSantis is calling for a “repeal” of “red flag” laws that stop people from buying guns if a court says they’re too dangerous to own them.

The legislation, signed into law during the last year of the Rick Scott administration, was a response to the lack of oversight that facilitated a former student’s mass murder at a Parkland High School in Feb. 2018.

The Governor believes red flag laws are a “huge due process violation.”

“If you look at this red flag law that was passed, you can go in, they can go in and say, this person’s a danger, they should have their firearms taken away, which is property in addition to being something connected with the constitutional right. And then the burden shifts where you have to prove to a court that you are not a a menace or a threat. That’s not the way due process works. The burden’s always on the government, yet they’ve shifted the burden for doing that,” DeSantis said this week.

So what would replace red flag laws?

Potentially, “involuntary commitment” would be the move, if DeSantis’ comments as a presidential candidate are meaningful.

In 2023, he said that a murder of 18 people in Lewiston, Maine, likely would have been avoided if the killer had been locked in a mental hospital, but that red flag laws like Florida’s wouldn’t have helped avert the tragedy.

“I mean, I think he obviously was a well-trained individual. There were these flags when he was training, he did go to the hospital. I think the question is why wasn’t he committed? Beyond that, we’ll probably figure out going forward. But clearly this is a guy that’s very dangerous because he’s got the training and then he seems to have had a breakdown,” DeSantis told CNN.

DeSantis added that “an involuntary commitment though would have kept him off the street and I think that would have probably done the trick.” Then he expounded on his problems with red flag laws.

“What red flag is, is people would go in and say you may be a danger so you could have someone lodge a complaint, different states do it differently, oftentimes with not adequate due process,” DeSantis said, though it’s unclear how due process would have played into what would have been a long-term involuntary commitment for the gunman.

Staying with the 2023 interview, he argued America “used to do higher levels of involuntary commitment.”

“The pendulum swung a lot to the other direction. I’m not saying it needs to go all the way back where it was. But I do think that we need to recognize that there are some people whose behavior is a danger to community and danger to society that right now are getting put back on the street and I’d want there to be a mechanism to, to do that. I think realistically, you know, you have to have the resources in place and the facilities in place to do that,” DeSantis said.

The argument for increased involuntary commitment has been workshopped before by DeSantis on the trail, including in August in Iowa.

“If you look at what happens at a police station when people are coming into the criminal justice system, there’s a huge percentage of these people that have mental health issues and it’s not even, like, a big shooting that gets all the headlines, just regular crimes. So many people, we used to have more of an institutional process where people would be institutionalized, who couldn’t function in society,” DeSantis said.

“We deinstitutionalized some 30 or 40 years ago. You know, I’m not sure that that was the right thing to do,” DeSantis added. “I see all these homeless in Los Angeles and San Francisco and some of these other liberal cities, they’re doing drugs or doing all this, but their mental health is ultimately the root of this. It’s behavior, it’s not that there’s not enough jobs or anything like that.”

Former President Ronald Reagan, who DeSantis has cited as a role model, is most responsible for said deinstitutionalization.

Reagan repealed legislation championed by Jimmy Carter that supported mental health institutions. The Mental Health Systems Act authorized grants to public and nonprofit private community mental health centers for operational costs, with an eye toward helping the “chronically mentally ill.” It arose from work during Carter’s single term, via a presidential commission on mental health.

Reagan instead provided block grants to the states at reduced levels, amounting to 75% to 80% of what they would have gotten under the Carter framework.