Should SC police seize guns based on threats, but no crime? Trump, Graham say ‘yes’

South Carolina’s Republican U.S. Sen. Lindsey Graham says the best way to curb mass shootings is for states to identify people who pose a threat to themselves or others and keep guns out of their hands.

President Donald Trump has endorsed the idea.

“Most Republicans want to keep guns out of the hands of dangerous people,” Graham said Thursday in Columbia.

But will South Carolina’s Legislature, controlled by Republicans, agree?

It doesn’t appear likely.

S.C. Republicans seem to have little appetite to pass so-called “red flag” legislation, which supporters say would give states and communities tools to intervene when a person is deemed an imminent threat to themselves or others before they’ve committed any crime.

That intervention could result in a person temporarily losing possession of their firearms and the right to buy guns.

And while some Democrats are supportive, others say they’re skeptical such a measure will gain traction in the GOP-controlled General Assembly, adding the proposal would be nowhere near enough to stop gun violence.

The dissonance between the president and the state’s GOP lawmakers and senior Republican in Congress comes in the wake of mass shootings in Dayton, Ohio, and El Paso, Texas, earlier this month that have reignited the national debate over what to do about gun violence.

In the pair of shootings, which occurred within a 14-hour period, more than 30 people were killed and dozens more injured.

As chairman of the powerful Senate Judiciary Committee, Graham has vowed to push a bipartisan “red flag” bill with the Trump’s support to empower law enforcement to be able to take guns away from people deemed to be a threat and to prevent them from buying guns in the first place.

Graham announced last week he reached a deal with U.S. Sen. Richard Blumenthal, D-Conn., on a bill that would start a federal grant program to help states pass their own “red flag” laws.

The senators have not filed their legislation yet. But Graham has said the bill would provide federal grant money that would help states hire mental health professionals that can assist law enforcement in making the tough call of when to intervene, by identifying whether a person is likely to harm others.

“Banning the AR-15 is not the answer,” Graham said Thursday, adding he owns the assault rifle. “It’s the person with the gun and not the gun. But there are people out there, folks, that shouldn’t have any gun.”

After the Ohio and Texas shootings, Trump said he would support “red flag” legislation.

Seventeen states and the District of Columbia have enacted red flag legislation. Many of those laws were passed after a 2018 school shooting in Parkland, Florida, left 17 dead.

The alleged shooter was expelled from school for disciplinary issues, and students and teachers reported he displayed threatening behavior. His mother had contacted law enforcement on multiple occasions regarding his behavior, and he was known to possess firearms.

An Everytown for Gun Safety analysis of mass shootings from 2009 to 2017 found that in 51% of incidents, the shooter exhibited warning signs that they posed a risk to themselves or others before the shooting.

In another study from 2008 of incidents of violence targeting schools specifically, the U.S. Secret Service and Department of Education found that attackers often exhibit behavioral warnings and, in many cases, someone else has some knowledge of the planned attack ahead of time.

In the year following Washington state’s passage of a red flag law in 2016, Seattle police seized more than 40 guns, the Seattle Times reported. In most cases, according to the paper, most individuals did not challenge and voluntarily surrendered firearms. One instance included a man who posted a picture of an assault rifle on social media and sent threatening emails to a church. Another involved a man who brandished a pistol during a dispute with a neighbor in an apartment building.

N.C. Gov. Roy Cooper on Monday signed an executive directive meant to strengthen background checks for gun buyers, and called for action on a red flag bill.

S.C. Gov. Henry McMaster, a Graham and Trump ally, is waiting to see what emerges on Capitol Hill.

“We’re closely monitoring what President Trump and Senator Graham are working on at the federal level,” McMaster spokesman Brian Symmes said. “The governor believes we must be extremely careful with any legislation dealing with the Second Amendment, and he will never support any measure that eroded South Carolinians’ constitutional rights.”

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Questions of due process

Driving opposition to “red flag” proposals among S.C. Republicans are their concerns about infringing on Second Amendment and due process rights.

The issue, however, will be a topic of discussion when the S.C. House Republican Caucus meets next month.

“When you have the President of the United States and senior senator from South Carolina talking about red flag laws … certainly, as a legislative policy-making body, we will look at suggestions,” House Majority Leader Gary Simrill, R-York, said. “But what is paramount is not infringing upon Second Amendment rights of law-abiding citizens and (that) current laws are being enforced to the fullest.”

Both he and other Republican lawmakers argue existing state law has already stopped hundreds of people with mental illness from obtaining guns.

The State recently reported nearly 2,000 S.C. residents have been denied a request to buy a gun because of a 2013 law that allows law enforcement to add the names of residents found to have a mental illness in court or committed to a mental institution into the national database used for background checks for gun purchases.

Federal law, too, bars anyone who has been convicted of certain crimes, adjudicated as mentally ill, involuntarily committed or subject to a final domestic violence restraining order from having guns.

However, a common thread in recent mass shootings is the firearms used were purchased legally, Graham said. He noted the alleged Dayton shooter was not prohibited under current law from possessing firearms, despite displaying warning signs he was considering acts of violence, including a rape list and a kill list.

Red flag laws help fill that gap, providing tools for law enforcement to intervene “and keep guns out of people’s hands that pose a threat to our community” before it’s too late, Richland County Sheriff Leon Lott said.

“If we don’t do something, we’re going to continue to have mass shootings,” Lott said, urging state lawmakers to pass a red flag law. “We can’t sit back.”

Graham says such laws provide “robust” due process and a system of checks and balances. People would have the opportunity to respond to any evidence presented at hearings and swiftly challenge confiscation orders in court.

Graham said the same process that applies to involuntarily committing someone to a psychiatric facility would apply to gun ownership. A judge would have to be convinced “of an imminent threat of death or bodily harm” to issue an emergency order to immediately suspend access to firearms until a hearing is held within seven days, he said.

At the hearing, authorities would have “to prove by clear and convincing evidence the person is a danger to themselves or others.”

“Nobody is going to lose their gun unless they have their day in court, but we’re not going to create a situation where the cops sit on the sidelines and watch somebody blow up when there are plenty of warning signs,” Graham said on Fox News this week. “The Second Amendment is not a suicide pact.”

‘Innocent until proven guilty’?

Some lawmakers, however, see red flag laws as a departure from the idea of “innocent until proven guilty.”

Graham’s proposal already has drawn political backlash from hardline gun rights advocates in the state.

“That is a loss of liberty … and a definition of tyranny in my mind,” state Rep. Jonathon Hill, R-Anderson, said of seizing weapons without a criminal conviction.

In March, Hill stood with National Association for Gun Rights President Dudley Brown and denounced Graham’s “red flag” gun confiscation proposal.

Instead, Hill is proposing a “constitutional carry” bill that would allow lawful gun owners to carry their firearms, concealed or not, without a permit.

“Responsible citizens exercising their rights in a responsible manner will do more to keep one another safe than some of these government mandates that are being discussed,” Hill said. “It’s going to come down to the everyday guy to stop some of these situations.”

Graham’s proposal has critics across the aisle, too.

“What they’re proposing is … unconstitutional,” said House Minority Leader Todd Rutherford, D-Richland. “This person has not been convicted of anything. ... You can’t go and raid someone’s house based on the word of someone else.”

Instead, he said lawmakers must focus on expanding background check requirements and closing the co-called “Charleston loophole” on gun background checks.

That loophole is a federal rule that says a gun purchase may go forward if a federal background check has not been completed after three days. That rule allowed avowed white supremacist Dylann Roof to purchase the gun he used to kill nine black parishioners at Charleston’s “Mother” Emanuel AME Church before an agent could complete his background check.

“I would vote to pass (a red flag law) and support it, but I don’t think they can get it to that point,” Rutherford said.

In the GOP-controlled Senate, Republicans have no plans to file “red flag” legislation in 2020, but are willing to “take a hard look” at any proposal that may come forward, according to a spokesman.

Senate Majority Leader Shane Massey, R-Edgefield, said the GOP caucus at present has not had any conversations about red flag laws.

Senate Judiciary Chairman Luke Rankin, R-Horry, could not be reached for comment.

‘Neutralizing clear, identifiable threats’

Some lawmakers, however, remain determined to press on, hoping a push at the national level will spur momentum in the Palmetto state.

State Rep. Ivory Thigpen, D-Richland, introduced a red flag bill earlier this year, but it went nowhere and won no co-sponsors.

The bill would allow law enforcement to obtain a warrant to seize any firearms and ammunition from an individual based on recent threats or acts of violence directed at others or toward themselves. That includes brandishing or reckless use of a firearm and any history of violence, threats, substance abuse, animal cruelty or involuntary confinement.

Similar to Graham’s proposal, Thigpen’s bill says a hearing must be held within seven days in probate court to determine whether any seized firearms and ammunition should be returned.

“This is not about taking guns away from people. This is about neutralizing clear, identifiable threats,” Thigpen said. “Something has to be done, and I think this is a small step, but a reasonable step, to move us to a safer place.”

Graham said he anticipates pushback on his proposal, “but these problems don’t fix themselves.”

“How many cases do we have to live through until somebody does something about it?”