Controversial ‘red flag’ law proposal heard in Frankfort
Published 4:26 pm Friday, December 15, 2023
FRANKFORT — Friday morning, impassioned Kentuckians filled three committee rooms and hallways in Frankfort to hear about State Sen. Whitney Westerfield’s plans to introduce a bill that would allow the temporary removal of firearms from those experiencing a mental health crisis.
Supporters donned purple shirts that said “I support CARR” — the proposed Crisis Aversion and Rights Retention Act.
Westerfield, R-Fruit Hill, started working on the CARR bill after the Uvalde elementary school shooting in Texas in May 2022.
He said that while he had heard about countless shootings before then, the victims, who were the same age as his children, caught his attention.
But Westerfield didn’t want to make the same mistakes as other states.
“I tried as a Second Amendment supporter, as a gun owner, as a former NRA member, I wanted to make sure that it was constitutionally sound,” he said.
Whitney Austin, a survivor of a 2018 mass shooting in Cincinnati, testified at Friday’s committee meeting.
She co-founded Whitney/Strong to make communities safer “through respectful dialogue, following the data, love for one another and seeking common ground,” she said.
Austin shared a few statistics. According to the CDC, 947 Kentuckians died by guns in 2021 —about one every nine hours, and 56% of those deaths were suicides.
Austin said that this law is a way to “press pause” to save someone from hurting themselves or others during a temporary mental health crisis.
“I want to start with our collective desire to protect innocent life,” Austin said. “As a gun owner leading my organization that represents a very diverse supporter base, I know every day from conversations that gun owners and non-gun owners alike, Republicans and Democrats, we all align on this foundational value.”
What is in the proposed CARR bills?
Westerfield shared details on two different versions of a CARR bill Friday morning.
He emphasized that both are highly subject to change as he and cosponsor State Sen. David Yates, D-Louisville, receive feedback from Kentuckians and colleagues.
Both versions would allow a court to temporarily remove firearms from a Kentuckian’s possession if they are shown to be experiencing a mental health crisis that may lead to them harming themselves or others with the firearm.
Concerned family members, friends or other individuals would need to convince a law enforcement officer to petition a court for this temporary removal, and could not petition a court on their own.
The respondent’s guns would be returned after their mental health crisis was addressed.
The second version includes an “ex parte hearing,” a hearing in which the court hears evidence from the petitioner without the presence of the respondent to defend themselves.
Then, if a judge agrees that firearms should be taken away temporarily, the court has the authority to do that immediately before holding a hearing with both parties present within a week or so.
Ex parte hearings have been unpopular among some Second Amendment advocates, Westerfield said, so his first version excludes them.
Instead, in that version, a law enforcement officer would go directly to the individual thought to be experiencing a mental health crisis first.
They would give the individual a choice: either relinquish their guns now and have a hearing in about a week or keep their guns and have a hearing within hours, or as soon as possible.
There are issues with this method, though, Westerfield said.
“If you tell someone that you fear has got a mental health issue or trauma, something that you’re worried they’re about to break, and then you don’t act with some near immediacy, you might actually provoke the act,” he said.
“That’s the concern. And you’re balancing that risk and that concern with the Second Amendment rights that they have.”
Rep. Savannah Maddox, R-Dry Ridge, has been one of the staunchest opponents of the CARR bill.
Friday, she said that gun control is never the answer, and that CARR had the potential to violate the constitutional right to due process, presumption of innocence and unlawful searches and seizures.
She also shared concerns about violating the Second Amendment rights of other members of a household in which one member is affected by this law.
“So often, we are told that we must do something,” Maddox said. “Yes, we must do something. We must fervently resist any effort to pass gun control legislation, and we must be serious about analyzing the data and putting a stop to these ineffective policies that put innocent citizens in harm’s way.”
Maddox was far from the only opponent. Rep. Daniel Elliott, R-Danville, asked why Kentucky’s involuntary commitment law wasn’t sufficient.
Westerfield said that CARR was more of an intermediate step.
“I think there’s a universe of people who present with a severe enough issue that we should hit this pause button and just let’s make sure everything’s OK,” he said. “Maybe get some help that you need, but you don’t need to be involuntarily committed.”
Several other legislators expressed support for the bill, sharing their own stories about themselves or people they know experiencing mental health crises that would fall under the purview of this bill.
What are the odds this becomes law?
Westerfield said that CARR is a long way from passage.
He compared it to a recently passed dating violence statute that took nine years from its first introduction to become law.
“I know that there’s more support than you’re hearing,” he said.
“There is because I’m hearing it, Whitney (Austin)’s hearing it. But there’s still a whole lot of resistance.”
Austin has been working with former state senators Morgan McGarvey and Paul Hornback for the past four years on similar bills.
“It’s been a long haul, but every single step along the way, because we have been very thoughtful and intelligent and passionate about our advocacy, more and more elected officials have joined along the way,” she said.
“So does that mean it’s ready to go pass? No. But this is the way you do the work, is to file bills to become legislation.”