Placeholder Image

[Scott Olson/Getty Images]

Gun Policy

In Ohio, a Red Flag Bill Will Have to Surmount an Increasingly Pro-Gun Legislature

Republican Governor Mike DeWine and his GOP predecessor both favored the civil gun seizure tool. After Dayton, there may be a new political window.

Of all the policy responses to mass shootings, red flag laws may be the most politically palatable. Legislation allowing courts to temporarily seize firearms from legal gun owners who pose an acute risk to themselves or others have drawn support from national Republicans, including President Donald Trump and, at least hypothetically, the National Rifle Association. Five Republican governors have signed red flag bills since the Parkland school shooting, and the laws are now in place in 17 states.

But Ohio was not one of them, an absence now made conspicuous by the tragedy in Dayton. The man who shot 36 people, nine of them fatally, in the city’s downtown on Saturday night looks in many ways like he may have been an ideal case for a red flag law: Reports indicate the AR-style rifle he used was legally purchased, but he had a pattern of dangerous behavior that might have been grounds for having his guns taken away with a red flag law in place. He violently lashed out at girlfriends, and former classmates told the Associated Press he had been suspended twice from his high school for writing a “rape list” and a “kill list” of his classmates.

Like his predecessor, fellow Republican John Kasich, current Ohio Governor Mike DeWine has supported enacting a red flag law in the state since soon after he took office at the beginning of this year. On August 6, he doubled down on his support, including red flag legislation — a so-called safety protection order — in the gun violence prevention package he is pushing in the aftermath of the Dayton rampage. Dewine’s new 17-point gun reform plan also includes background checks and increased mental health funding.

But to make it to DeWine’s desk, any bill would have to navigate a Republican-led General Assembly, the state’s legislature, which has been largely hostile to any new gun restrictions and, in many cases, has worked to expand gun rights.

All but one of the states that have enacted red flag laws during the past two years have Democratic majorities in their legislatures. The lone exception was Florida, where an unprecedented grassroots youth movement drove Republicans to pass a slate of new safety measures in the wake of the Parkland shooting, including a red flag law.

A red flag bill was also filed in Ohio last year, but never even came up for a vote. A similar bill has been languishing since February. In both cases, the legislation was quashed by State Senator William Coley, the chairman of the Government Reform and Oversight Committee, who has used his position to deny the measures a vote despite indications of bipartisan support.

Coley did not immediately respond to a request for comment from The Trace. Earlier this week, he said in an interview with Cleveland.com that his colleagues were simply not enthusiastic about red flag orders. “As we talked with members of the committee and with experts in the field,” he said, “there just wasn’t a lot of support for the proposal.”

But many other groups have supported such proposals. Among those testifying alongside gun violence prevention groups in favor of bringing red flag orders to Ohio in 2018 were the Ohio Association of Police Chiefs and the National Alliance on Mental Illness.

The Ohio General Assembly has shifted rightward in the last two decades. With one brief intermission from the 2008 election to the 2010 midterms when Democrats held the House, the GOP has controlled both legislative chambers since 1998. In that time, the state has not passed any significant gun safety legislation beyond what the federal government requires, according to Giffords, the gun reform group. Ohio has no assault weapon law, magazine capacity limit, child access prevention law, policy for disarming people who illegally own guns or are subject to a domestic violence restraining orders, or regulation of private gun transfers. Before the Dayton shooting, state lawmakers were working to remove permitting requirements to carry a concealed weapon in public.

Still, there has been some recent indication of a bipartisan willingness to work on a handful of gun reform policies, chief among them a red flag law.

Senator John Eklund, a Republican, co-sponsored the 2018 Senate red flag bill along with Democrat Sandra Williams. He told The Trace there was “bipartisan support, yes, but a great divergence of opinion when it came to the details.” Eklund said he biggest stumbling block was whether the legislation would allow for temporary “ex parte” orders to seize weapons, which a court issues in an initial emergency hearing without the gun owner present.

“To a lawyer, ex parte hearings are not unusual or shocking. They happen all the time. They have a long tradition in Anglo-American jurisprudence,” Eklund said. For example, ex parte hearings are routinely used for domestic violence restraining orders, which are generally not controversial. “But to some laymen, it could sound like the Gestapo,” he added.

At the national level, the NRA signaled hypothetical support for red flag laws in the wake of the Parkland shooting, but it has opposed any specific legislation that includes ex parte hearings. Since the ex parte hearings are what make the civil gun seizures useful in an emergency, they have been included in every proposed red flag law. And the NRA has opposed all those bills.

While local gun rights groups like Ohio Gun Owners and Ohio Concealed Carry testified against Ohio’s red flag bill last year, the NRA did not make a public statement on the legislation in either 2018 or 2019. Eklund said he had talked with local NRA representatives about the bill he co-sponsored, and called the discussions “amicable.”

In a sign that there could be movement on a red flag law bill this time around, one local gun rights group that opposed the 2018 measure, the Buckeye Firearms Association, expressed broad support for the process outlined by DeWine immediately after the Dayton shooting. “They [the DeWine administration] have gone to great lengths to protect our due process rights, and that is very critical,” association member Larry Moore told The Cincinnati Enquirer. “I don’t see us fighting this at all. Again, the devil is always in the details of what comes before the General Assembly.”

Meanwhile, Republican State Senate President Larry Obhof has also signaled openness to the red flag proposal, saying this week it’s “an issue we can look at and might be able to work through.”

Williams, the Democratic co-sponsor of the law, said she had never received a clear answer from Coley or any other member of the legislative leadership as to why the 2018 and 2019 bills had stalled. “We were told the NRA was not opposed,” Williams told The Trace. She said that when she had a breakfast meeting with DeWine earlier this year, he indicated an openness to working on her legislation, though that was the only time she discussed the bill with the governor.

She has introduced the bill twice again this year — once in February and again in May — and plans to offer it to the General Assembly a third time this week, this time with Republican co-sponsor Peggy Lehner.

Williams said she is more optimistic about the bill’s prospects this August because, after the Dayton shooting, members of the public are deluging elected officials with demands to pass some gun laws

.“People are telling the legislature to get busy!” she said.