Implementation and Effectiveness of Connecticutâ•Žs Risk-Based Gun Removal Law: Does it Prevent Suicides?

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IMPLEMENTATION AND

EFFECTIVENESS OF CONNECTICUT’S

RISK-BASED GUN REMOVAL LAW: DOES

IT PREVENT SUICIDES?

JEFFREY W. SWANSON, PHD; MICHAEL A. NORKO, MD, MAR

SIU-JU LIN, PHD; KELLY ALANIS-HIRSCH, PHD

INDA K. FRISMAN, PHD; MADELON V. BARANOSKI, PHD, MSN

ICHELE M. EASTER, PHD; ALLISON G. ROBERTSON, PHD, MPH

ARVIN S. SWARTZ, MD AND RICHARD J. BONNIE, LLB*

NTRODUCTION

Developing practical, effective, and legally sustainable policies to separate

firearms from people at risk of harming themselves or others presents a

potentially important, but challenging, public health opportunity for gun violence

prevention in the United States. Risk-based, temporary, preemptive gun removal

is a legal tool that four states—Connecticut,

Indiana,

California,

and

Washington

—have adopted, and which has recently attracted considerable

This article is also available online at http://lcp.law.duke.edu/.

Jeffrey W. Swanson, PhD, Kelly Alanis-Hirsch, PhD, Michele M. Easter, PhD, Allison G.

Robertson, PhD, MPH, and Marvin S. Swartz, MD, are with the Department of Psychiatry and

Behavioral Sciences at Duke University School of Medicine. Hsiu-Ju Lin, PhD, and Linda K. Frisman,

PhD, are with the University of Connecticut School of Social Work. Michael A. Norko, MD, MAR, and

Madelon V. Baranoski, PhD, MSN, are with the Department of Psychiatry at Yale University School of

Medicine. Richard J. Bonnie, LLB, is with the University of Virginia Law School. The authors wish to

acknowledge the assistance of Tameka Hollis, MBA, and are grateful to the collaborating state agencies

in Connecticut for contributing the data that made this research possible. The research presented in this

article was supported by The Fund for a Safer Future, The Elizabeth K. Dollard Trust, and The Brain

and Behavior Foundation. The research, in part, was previously presented at the conference, Second

Generation of Second Amendment Law and Policy at New York University School of Law in New York

City on Friday, April 8, 2016; and as part of Dr. Swanson’s Frontiers in Science distinguished lecture at

the American Psychiatric Association’s 169th annual meeting, in Atlanta, Georgia, on May 16, 2016.

Corresponding author contact: Jeffrey W. Swanson, PhD; Box 3071 DUMC, Durham, NC, 27710;

[email protected]; 919 682-4827.

ONN. GEN. STAT. § 29-38c (1999).

2. I

ND. CODE ANN. § 35-47-14 (2006).

3. C

AL. PENAL CODE § 18100 (2016).

4. Washington Individual Gun Access Prevention by Court Order, Initiative

1491 (2016).

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180 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

interest among policymakers in other jurisdictions.

To date, there has been little

empirical scrutiny of these laws in practice and there are important unanswered

questions about how they work: What are the legal and logistical barriers to

implementing risk-based gun removal laws? Do they target the right people? Are

the laws fair? Do they actually help reduce gun deaths?

In 1999, following a highly publicized mass shooting,

Connecticut became the

first state to pass a law authorizing police to temporarily remove guns from

individuals when there is “probable cause to believe . . . that a person poses a risk

of imminent personal injury to himself or herself or to other individuals[.]”

Connecticut’s innovative statute established the legal practice of preemptive gun

removal as a civil court action based on a risk warrant, a process that neither

requires nor generates a record of criminal or mental health adjudication as its

predicate.

Our research study provides an analysis of the characteristics,

implementation, and outcomes of gun removals conducted under Connecticut’s

risk warrant law during the period of October 1999 through June 2013.

This

article summarizes key features of the study in an effort to inform other states

that are considering the adoption of similar gun-seizure laws.

Part II sketches the relevant policy landscape in order to demonstrate that

point-of-purchase background checks are a necessary but insufficient component

of a strategy to reduce gun violence in the United States, and that risk-based

preemptive gun removal schemes provide a complementary policy to bridge the

gap. Part III briefly recounts the history of enactment and gradual

implementation of Connecticut’s risk-based gun removal law, beginning with the

high-profile homicide that drove public opinion to support the law. Part IV

describes our research study’s quantitative and qualitative methods and data

sources. Part V presents the results of the study. It first describes the

characteristics of gun removal cases in Connecticut. Next, it summarizes views of

stakeholders regarding the effectiveness and fairness of gun removal, as well as

particular challenges faced in implementing the risk warrant law. It then analyzes

suicides committed by the individuals from whom firearms had been seized to

5. Six additional states—Illinois, Michigan, Minnesota, Missouri, New York, and Virginia—had

introduced similar bills by the end of 2016. E-mail from Kelly Roskam, General Counsel, Educational

Fund to Stop Gun Violence, to author (Dec. 8, 2016) (on file with author). Nevada introduced a similar

bill, S.B.387, on March 20, 2017. See Nev. S.B. No. 387, (Mar. 20, 2017), http://www.leg.state.nv.us/

Session/79th 2017/Bills/SB/SB387.pdf

6. See Jonathan Rabinovitz, Rampage in Connecticut: Connecticut Lottery Worker Kills 4 Bosses,

Then Himself, N.Y.

TIMES (Mar. 7, 1998), http://http://www.nytimes.com/1998 /03/07/ nyregion/rampage-

connecticut-overview-connecticut-lottery-worker-kills-4-bosses-then.html?_r=0 [https://perma.cc/E585-

2UZ5] (describing a shooting in which a thirty-five-year-old lottery worker used a semiautomatic

handgun to kill four executives at the Connecticut Lottery headquarters in Hartford).

7. C

ONN. GEN. STAT. § 29-38c (1999).

8. See id. (describing the statutory criteria and process for gun removal as a civil judicial

determination on the basis of probable cause to believe there is imminent risk of gun violence but not

requiring any criminal charge or record).

9. Implementation and Effectiveness of Dangerous Persons’ Gun-Seizure Laws in Connecticut and

Indiana, research study funded by a grant from the New Venture Fund (Fund for a Safer Future) to Duke

University; GA 0327014, Jeffrey Swanson, Principal Investigator (2014–2018).

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determine whether the policy saved lives, and concludes with an estimate of the

number of gun removal cases that are necessary to avert one suicide. Part VI

summarizes the findings and draws key policy implications. Finally, Part VII

renders the study’s conclusion.

HE POLICY LANDSCAPE:

HE LIMITS OF BACKGROUND CHECKS AND THE POTENTIALLY IMPORTANT

ROLE OF RISK-BASED PREEMPTIVE GUN REMOVAL LAWS

Intentional gun violence in the United States remains a daunting public

health problem—diverse in its surrounding circumstances, complex in its causal

pathways, and far reaching in its social and economic consequences.

How to

solve the problem remains the subject of a contentious and partisan political

debate, pitting public safety interests against the Second Amendment right.

The

1994 Brady Law’s

requirement of point-of-purchase background checks for

firearm sales from federally licensed dealers has long been the mainstay of

federal and state efforts to prevent gun violence. This is arguably a necessary but

insufficient policy approach.

Wide variation in the operational criteria for gun

restrictions across states, inconsistencies in local policies and practices that apply

these criteria to individual cases, and major gaps in state authorities’ reporting of

gun-disqualifying records to the National Instant Criminal Background Check

System (NICS), all contribute to inefficient identification of people who should

not have guns.

Existing statutory schemes thus fall short of the practical goal of

implementing gun prohibitions for dangerous people because most states have

not closed point-of-purchase loopholes

and, with few exceptions, have no

10. See Centers for Disease Control and Prevention (CDC), Injury Prevention & Control: Data &

Statistics, Web-based Injury Statistics Query and Reporting System (WISQARS

), Fatal Injury Reports

and Nonfatal Injury Reports (2016), http://www.cdc.gov/injury/wisqars/index.html [https://perma.cc/

7F3C-2EPY] (reporting that 33,599 fatal and 81,034 nonfatal gun injuries occurred in the United States

in 2014); see also Garen J. Wintemute, The Epidemiology of Firearm Violence in the Twenty-First Century

United States, 36 A

NN. REV. PUB. HEALTH 5, 8–16 (2015) (discussing recent trends and current statistics

of U.S. gun violence).

11. See generally P

HILIP J. COOK & KRISTIN A. GOSS, THE GUN CONTROL DEBATE (2014)

(explaining that the appropriate role of gun control in reducing gun-related violence is the subject of a

long-running policy debate).

12. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, § 107 Stat. 1536 (1994).

13. See Philip J. Cook & Jens Ludwig,

The Limited Impact of the Brady Act: Evaluation and

Implications, in R

EDUCING GUN VIOLENCE IN AMERICA: INFORMING POLICY WITH EVIDENCE AND

ANALYSIS 21, 28 (Daniel W. Webster & Jon S. Vernick eds., 2013) (explaining that the Brady Act’s

background check requirement is too narrow because many criminals obtain guns through unregulated

secondary markets).

14. Federal firearms law is nested in widely variable state civil commitment practices. See Paul S.

Appelbaum & Jeffrey W. Swanson, Gun Laws and Mental Illness: How Sensible are the Current

Restrictions? 61 P

SYCHIATRIC SERVS. 652, 652–54 (2010) (discussing the limitations of imposing gun

restrictions based on mental health).

15. See L

AW CENTER TO PREVENT GUN VIOLENCE, UNIVERSAL BACKGROUND CHECKS,

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182 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

policies in place to proactively remove guns from legally prohibited persons.

a more fundamental level, the federal prohibiting criteria themselves, as defined

in the 1968 Gun Control Act

and mirrored in many states’ statutes, tend to

correlate poorly with actual risk of violence and suicide. The rules are both over-

and under-inclusive, insofar as they prohibit many people at a very low risk of

violence from owning guns while also failing to identify many others who are at

a high risk of violence.

SUMMARY OF STATE LAW, http://smartgunlaws.org/gun-laws/policy-areas/background-checks/universal

-background-checks/ [https://perma.cc/T379-KF4E] (reporting that only eight states—California,

Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, and Washington, as well as the

District of Columbia currently require comprehensive background checks for all transfers of all classes

of firearms, including purchases from unlicensed sellers); see also U.S. Dep’t of Just., Off. of the Inspector

Gen., Review of ATF’s Project Gunrunner 10 (Nov. 2010), http://www.justice.gov/oig/reports

/ATF/e1101.pdf [https://perma.cc/CU35-MKQM] (noting that “individuals prohibited by law from

possessing guns can easily obtain them from private sellers and do so without any federal records of the

transactions”).

16. See Garen J. Wintemute, et al., Evaluation of California’s Armed and Prohibited Persons System:

Study Protocol for a Cluster-Randomised Trial, I

NJURY PREVENTION 1, 1–5 (2016) (discussing the

problem that large numbers of legal gun purchasers in the United States subsequently become prohibited

from firearms due to a criminal conviction, mental health-related adjudication, or domestic violence

order of protection, or acquire some other gun-disqualifying status under federal or state law; that

“almost no attention has been given to interventions focused on [these] individuals. . .”; and discussing

California’s innovative Armed and Prohibited Persons System as a proposed state policy solution but

one that lacks research evidence for its effectiveness). Insofar as background-check laws and policies are

focused solely on regulating point-of-sale firearm transfers, they stop short of providing a mandate or

authority for local law enforcement agents to assertively search for and remove any guns that may already

be in the possession of a person who transitions to a gun-prohibited status. However, a gun-disqualified

person who is found incidentally to possess guns may be subject to criminal charges of illegal gun

possession under state law. An example appears in United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012),

a case involving a criminal defendant, Nathan Rehlander, who was indicted in Maine for illegal gun

possession under 18 U.S.C. § 922(d)(4) due to a previous involuntary civil commitment—but only after

police had later encountered Rehlander in responding to an assault complaint and discovered his gun-

disqualifying mental health history; there had apparently been no removal of guns from Rehlander when

he first acquired the status of a gun-prohibited person.

17. See Gun Control Act of 1968, 18 U.S.C. § 922(d)(4) (2006) (most common disqualifying criteria

include felony convictions, unlawful immigration status, and adjudication related to mental illness).

18. See Jeffrey W. Swanson, Allison G. Robertson, Linda K. Frisman, Michael A. Norko, Hsiu-Ju

Lin, Marvin S. Swartz & Philip J. Cook, Preventing Gun Violence Involving People with Serious Mental

Illness, in R

EDUCING GUN VIOLENCE IN AMERICA: INFORMING POLICY WITH EVIDENCE AND

ANALYSIS 33, 36 (Daniel W. Webster & Jon S. Vernick eds., 2013) (“The very small proportion of people

with mental illnesses who are inclined to be dangerous often do not seek treatment before they do

something harmful; they therefore do not acquire a gun-disqualifying record of mental health

adjudication[.]”). There is limited evidence that background checks can substantially reduce gun violence

risk in people with serious mental illness. In our recent study in Connecticut, we matched and merged

mental health, court, and arrest records for 23,292 persons diagnosed with schizophrenia, bipolar

disorder, or major depression who were receiving services in the state’s public behavioral healthcare

system. We found a six percent reduction in violent crime in gun-disqualified individuals attributable to

Connecticut’s initiating a policy of reporting records to NICS in 2007. However, while the NICS-

reporting effect was statistically significant, it turned out to be substantively trivial; the policy affected

only seven percent of the study population of persons with serious mental illness, while ninety-six percent

of the violent crimes recorded for that population were committed by persons who were not exposed to

the policy, that is, not disqualified on the basis of a mental health adjudication history. As a result, the

estimated net reduction in violent crime in the population was miniscule—a tiny fraction of one percent.

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The current epidemic of suicide in the United States

illustrates a large

loophole in the mental-health-related criteria for restricting at-risk individuals

from buying guns.

Over half of suicides in the United States are completed with

guns,

and many of those guns are legally obtained.

Most people who die by

suicide suffer from a mental disorder such as depressive illness,

but only a small

proportion of them have a record of involuntary civil commitment or other gun-

disqualifying mental health or criminal adjudication.

Similarly, a substantial

proportion of those at risk for committing violent crimes with guns do not have a

record that would prohibit them from purchasing or possessing firearms.

The sheer number of privately owned firearms already in existence in the

United States—approximately 357,000,000 guns, by one government estimate

—

19. See Sally C. Curtin, Margaret Warner & Holly Hedegaar, Increase in Suicide in the United States,

1999–2014, CDC (Apr. 22, 2016), http://www.cdc.gov/nchs/products/databriefs/db241.htm [https://perma.

cc/4W54-XKPZ] (finding that the age-adjusted suicide rate in the United States increased twenty-four

percent between 1999 and 2014).

20. See Appelbaum & Swanson, supra note 14, at 652–54 (explaining that states’ incomplete

reporting to the NICS and the tenuous link between mental health defects and risk of violence create

gaps in firearm regulation); see also Jeffrey W. Swanson, Paul S. Appelbaum & Richard J. Bonnie,

Getting Serious about Preventing Suicide: More “How” and Less “Why,” 314 J.

AM. MED. ASS’N 2229,

2229–30 (2015) (suggesting that seizing firearms of those involuntarily hospitalized and enacting

mandatory reporting to the NICS could be important tools in suicide prevention).

21. Suicide accounted for 41,149 deaths in 2013, and fifty-one percent of these suicides involved guns.

Melonie Heron, Deaths: Leading Causes for 2013, 65 N

AT’L VITAL STAT. REP. 2, 41 (2016),

https://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_02.pdf [https://perma.cc/F7UC-QKR3].

22. See K. M. Grassel, Garen J. Wintemute, M. A. Wright & M. P. Romero, Association Between

Handgun Purchase and Mortality from Firearm Injury, 9 I

NJURY PREVENTION, 48, 48–52 (2003) (The

authors matched California death records to state handgun purchase data and determined that 14.6

percent of persons who died from gun-related suicide had legally purchased a handgun within a two-year

period before their death.).

23. See Jonathan Cavanagh, Alan Carson, Michael Sharpe & Stephen Lawrie, Psychological

Autopsy Studies of Suicide: A Systematic Review, 33 P

SYCHOLOGICAL MEDICINE, 395, 395–405 (2003)

(reporting that ninety-one percent of persons who died by suicide had a mental disorder, on average

across seventy-six studies).

24. See Jeffrey W. Swanson, Michele M. Easter, Allison G. Robertson, Marvin S. Swartz, Kelly

Alanis-Hirsch, Daniel Mosely, Charles Dion & John Petrila, Gun Violence, Mental Illness, and Laws that

Prohibit Gun Possession: Evidence from Two Florida Counties, 35 H

EALTH AFF. 1067, 1067–75 (2016)

(finding that in Florida, seventy-two percent of severely mentally ill gun suicide victims were found to be

legally eligible to purchase a firearm on the day they used one to end their own life); see also Lesley C.

Hedman, John Petrila, William H. Fisher, Jeffrey W. Swanson, Dierdre A. Dingman & Scott Burris, State

Laws on Emergency Holds for Mental Health Stabilization, 65 P

SYCHIATRIC SERVS. 529, 529–35 (2016)

(finding that in many states, police commonly detain persons in a mental health crisis and transport them

to a treatment facility, where they are briefly held before either being discharged or persuaded to sign

into a hospital voluntarily, neither of which results in gun disqualification in most states, notwithstanding

elevated risk of harm to self or others that may coincide with involuntary hospitalization).

25. See Swanson et al., supra note 24 at 1071 (finding that in Florida, thirty-eight percent of a large

study population of persons with mental illness who were arrested for violent, gun-involved crimes were

not prohibited from firearms at the time).

26. See Christopher Ingraham, There Are Now More Guns than People in the United States, W

ASH.

POST (Oct. 5, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/10/05/guns-in-the-united-

states-one-for-every-man-woman-and-child-and-then-some/ [https://perma.cc/62L5-7RT5] (compiling

estimates using firearm manufacturing, importing, and exporting data from the Congressional Research

Service, combining Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) data with U.S. Census

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184 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

further limits the effectiveness of any policy that relies solely on stopping a risky

person from acquiring a new gun. There should be a concomitant means of gun

removal. Guns are extremely durable devices that many owners retain

indefinitely and pass down through generations. Meanwhile, U.S. gun

manufacturers have continued to increase their output of new guns, particularly

in recent years—from 5.6 million guns in 2009 to 10.9 million guns in 2013.

This

means there are probably now more guns than there are people in the United

States, though guns are not evenly distributed in the population.

Moreover,

individuals at high risk of violence commonly have access to firearms at home,

even if they would not qualify to buy a gun themselves, because they live in

households with guns legally purchased by family members or others.

An estimated nine percent of adults in the United States have problems with

impulsive, angry behavior and have access to firearms at home; these are

individuals who admit that they “break and smash things” when they get angry,

and many of them would meet diagnostic criteria for a mental health problem

such as a personality disorder.

However, less than ten percent of these angry,

impulsive, gun-possessing adults have ever been hospitalized for a mental health

problem, and thus would never have lost their gun rights by dint of a mental-

health-based restriction.

One such angry individual was Craig Stephen Hicks,

the legal owner of a cache of about a dozen firearms who, in a fit of irrational

rage, shot three young Muslim people in the head in Chapel Hill, North Carolina

in February 2015.

Notably, properly conducted federal and state background

check policies were insufficient to protect the public from Hicks. Although Hicks

did not meet any gun-prohibiting criteria,

he was nevertheless a very dangerous

estimates of population, noting also that some experts put the estimate lower—in the range of 245,000,000

to 270,000,000 guns—to properly account for attrition in the civilian firearm stock).

27. Id.

28. See Lois Beckett, Gun Inequality: U.S. Study Charts Rise of Hardcore Super Owners, T

GUARDIAN (U.K.) (Sept. 19, 2016) (discussing results of a new unpublished Harvard/Northwestern

survey, released exclusively to news outlets, which found that approximately half of the nation’s guns are

“concentrated in the hands of just 3 [percent] of American adults—a group of super-owners who have

amassed an average of 17 guns each”); see also Behavioral Risk Factor Surveillance System (BRFSS),

North Carolina State Center for Health Statistics, 2001, http://www.schs.state.nc.us/SCHS/brfss/

2001/us/firearm3.html [https://perma.cc/KPP8-4884] (documenting wide regional variation in household

gun ownership rates, ranging from under ten percent of households in some states to more than sixty

percent of households in other states).

29. See Jeffrey W. Swanson, Nancy A. Sampson, Maria V. Petukhova, Alan M. Zaslavsky, Paul S.

Appelbaum, Marvin S. Swartz & Ronald C. Kessler, Guns, Impulsive Angry Behavior, and Mental

Disorders: Results from the National Comorbidity Survey Replication (NCS-R), 33 B

EHAV. SCI. L. 199,

209 (2015) (reporting on the prevalence of impulsive angry behavior combined with access to firearms,

and the significant association between personality disorders and the combination of impulsive anger

with gun possession).

30. Id.

31. See Sarah Kaplan, Suspect in Chapel Hill Killings Described as Troublemaker, Obsessed with

Parking, W

ASH. POST (Feb. 12, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/02/

12/alleged-chapel-hill-killer-described-as-neighborhood-bully-obsessed-with-parking-and-noise/ [https:

//perma.cc/GU5Z-D2XD] (suggesting that the suspect’s extraordinary anger was known to neighbors).

32. See Anne Blythe, Craig Hicks Becomes Symbol in Gun Politics, N

EWS & OBSERVER (Raleigh,

N.C.) (Apr. 11, 2015), http://www.newsobserver.com/news/local/counties/orange-county/article

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man who went on to use a legally obtained firearm to carry out a horrifying

multiple homicide. What went wrong in the Hicks case? It would be tempting to

see it simply as an egregious example of the mismatch between our gun-

disqualifying criteria and actual risk. After all, Hicks’s neighbors were well aware

that he had a serious anger problem, and that he had guns; it appears that people

were quite afraid of him.

Would adding more inclusive criteria for restricting

such people from purchasing guns have saved the lives of the three young people?

Probably not, because Hicks already had a dozen guns sitting in his apartment.

Rather, in order to effectively deter and prevent people like Hicks from using

guns in a harmful way, a different kind of law would have been needed: a legal

tool to effectively remove guns from a dangerous person who already possesses

them, that is, a preemptive, risk-based gun seizure law that would apply to

dangerous-but-not-otherwise-gun-prohibited persons.

III

RIEF HISTORY OF A RISK-BASED PREEMPTIVE GUN REMOVAL LAW IN

CONNECTICUT

On March 6, 1998, a disgruntled accountant with the Connecticut Lottery

Corporation used a 9mm Glock pistol and a knife to murder four co-workers

before shooting himself in the head.

The shooter, Matthew Beck, had previously

attempted suicide and was being treated for depression.

In response to the

public outcry over this incident as well as the infamous Columbine shooting the

following year, state lawmakers passed Public Act 99-212 in 1999.

Connecticut

thereby became the first state to authorize seizure of firearms from putatively

dangerous persons who are not otherwise legally prohibited from purchasing or

possessing guns, before they have committed an act of violence.

18279290.html [https://perma.cc/3KF8-HQS7] (“Until his . . . arrest on three first-degree murder charges,

Hicks was a gun owner with a valid conceal-carry permit and a cache of about a dozen firearms.”).

33. Kaplan, supra note 31.

34. Blythe, supra note 32.

35. Rabinovitz, supra note 6.

36. Id.

37. Only two months after the lottery shooting, the Connecticut General Assembly passed PA 98-

129, An Act Concerning Handgun Safety, which required the creation of a protected database regarding

civil commitments and gun permits. The gun seizure provision began as a minor modification of gun

permit statutes (C.G.S. 29-28 to 29-32) introduced in January 1999. After the Columbine shootings on

April 20, 1999, the Bill was expanded to permit gun seizures with a warrant. It is encoded under C

ONN.

EN. STAT. § 29-38c. See Michael A. Norko & Madelon Baranoski, Gun Control Legislation in

Connecticut: Effects on Persons with Mental Illness, 46 C

ONN. L. REV. 1609, 1615 n.33 (2014) (discussing

the “legislative atmosphere” after the Connecticut Lottery shooting and the Columbine shooting); see

also Transcript of Connecticut General Assembly House Debate on Bill Number 1166, June 7, 1999,

pages 5412, 5432, 5502, 5507, 5522, and 5526 and Senate Debate on same bill, June 4, 1999, pages 3116,

3123, and 3126 (referring to the Lottery or Columbine shootings). The bill ultimately became Public Act

99-212.

38. In 2006, Indiana enacted a similar law, codified as amended in I

ND. CODE § 35-47-14-3 (2013). It

allows police to seize guns from “dangerous persons” without a warrant, pending a judicial hearing. The

state has the burden of showing, by clear and convincing evidence, that the person was dangerous at the

time of the firearm seizure. If the court retains a firearm, the individual may petition for its return 180

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186 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

The new law emerged from earlier policy discussions in Connecticut about

how to identify risky people who should not possess guns, while also maintaining

confidentiality of records that might include private health information; one

proposal had focused on having psychiatrists evaluate mentally ill individuals for

safety to possess firearms.

However, mental health stakeholders were

concerned that such a law might stigmatize people with mental illness.

As the

draft of the law evolved, it was written deliberately to exclude mental illness per

se from among the reasons for attributing risk sufficient to remove someone’s

guns,

and it included sufficient procedural safeguards to satisfy gun-rights

advocates in the legislature that the civil rights of law-abiding gun owners would

not be needlessly infringed.

In the end, the proposal for a gun removal scheme

days after each court hearing. In 2014, California became the third state to pass a risk-based gun removal

law, creating what is called a Gun Violence Restraining Order. Elliott Rodger was the legal owner of

three 9mm pistols when he embarked on a killing spree in Isla Vista, California, in May 2014, leaving six

dead and fourteen injured before turning a gun on himself and ending his own troubled life. Rodger’s

parents had been concerned enough about their son to ask the police to check on him. Law enforcement

officers paid a social welfare visit to Rodger’s residence but determined that he did not meet criteria to

be detained. However, advocates for risk-based preemptive gun removal laws have argued that if such a

law had been in place at the time, police could have searched for and seized Rodger’s firearms. In the

aftermath of the shooting, the California State Assembly passed and Governor Brown quickly signed

AL. COM. CODE § A.B. 1014, legislation authorizing the Gun Violence Restraining Order. See Shannon

S. Frattaroli, Emma E. McGinty, Amy Barnhorst & Sheldon Greenberg, Gun Violence Restraining

Orders: Alternative or Adjunct to Mental Health-Based Restrictions on Firearms? 33 B

EHAV. SCI. L. 290,

302–03 (2015); see also Joshua Horwitz, Anna Grilley & Orla Kennedy, Beyond the Academic Journal:

Unfreezing Misconceptions about Mental Illness and Gun Violence Through Knowledge Translation to

Decision-Makers, 33 B

EHAV. SCI. L. 356, 363 (2015) (describing the role of research evidence in

advocating for this law). In 2016, Washington State became the fourth state to enact a preemptive, risk-

based gun removal law, Initiative

1491, Washington Individual Gun Access Prevention by Court Order

(2016), which authorized the use of the Extreme Risk Protection Order (ERPO).

39. Michael A. Norko, Legislative Consultation and the Forensic Specialist, in B

EARING WITNESS TO

CHANGE IN FORENSIC PSYCHIATRY AND PSYCHOLOGY PRACTICE 197 (Ezra E. H. Griffith, Michael A.

Norko, Alec Buchanan, Madelon Baranoski & Howard V. Zonana eds., 2016); see also Norko &

Baranoski, supra note 37, at 1614 (describing collaboration between state agencies—the Departments of

Emergency Services and Public Protection, Mental Health and Addiction Services, and Information

Technology—to create a system that would “accomplish the dual objectives of reporting [records of gun-

disqualified individuals] and maintaining confidentiality”; a “black box” computer database for sharing

confidential records was eventually devised).

40. See Norko & Baranoski, supra note 37, at 1629–31 (discussing methods of de-stigmatizing

psychiatric conditions and their treatments).

41. See Connecticut Network, Michael Norko Statement to the Connecticut Criminal Justice Policy

Advisory Commission (Nov. 17, 2016), http://www.ctn.state.ct.us/ctnplayer.asp?odID=13447

[https://perma.cc/QNL4-GMVM] (describing his personal recollection of mental health stakeholders’

successful efforts to advocate for language in the bill that that would not single out people with mental

illness as categorically at risk, but rather focus on periods of crisis and behavioral indicators of risk: “The

collaboration that occurred between the mental health community and the legislature at the time allowed

for us not to take the road of making this a law about people with mental illness, but rather a law about

people who are in periods of crisis, who are in a temporary stage of risk. And so the law did not require

any finding of mental illness, per se. It required probable cause, it had a requirement for a hearing within

14 days of the gun removal, and the guns could be held for up to one year, or at the hearing, they could

be returned to the owner.”); see also Transcript of House Debate on Bill Number 1166, June 7, 1999, at

5380, 5402, 5404, 5446, 5480 and Senate Debate, June 4, 1999, at 3139 (explaining that the bill was not

meant to focus on mental illness per se, but on a person in a dangerous situation from any cause).

42. See Connecticut Network, Michael Lawlor Statement to the Connecticut Criminal Justice Policy

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based solely on “imminent risk”

regardless of mental health history was seen as

less stigmatizing.

The law passed with strong bipartisan support.

Specifically, the Connecticut statute allows police, after independently

investigating and determining probable cause, to obtain a court warrant and

remove guns from anyone who is found to pose an imminent risk of harming

someone else or himself or herself.

In confirming probable cause and

determining imminent risk, the judge must consider recent threats or acts of

violence and recent acts of cruelty to animals.

The judge may also consider:

reckless gun use or display; a history of the use, attempted use, or threatened use

of physical force against other persons; prior involuntary psychiatric

hospitalization; and illegal use of drugs or alcohol abuse.

The typical case begins with a call to the police concerning a person who is

thought to pose risk of harming someone with a gun. The police take the report

and must conduct an independent investigation to gather facts that might support

a determination of “probable cause to believe that (1) a person poses a risk of

imminent personal injury to himself or herself or to other individuals, (2) such

person possesses one or more firearms, and (3) such firearm or firearms are

within or upon any place, thing or person . . . .”

If the police find evidence that

they consider supportive of such probable cause, they may issue a statement to

this effect, signed by two officers as co-affiants.

The police officers’ statement

Advisory Commission (Nov. 17, 2016), http://www.ctn.state.ct.us/ctnplayer.asp?odID=13447

[https://perma.cc/LP8R-RN2E] (describing the legislative history of Connecticut’s risk warrant law:

“[W]hen this bill was considered by the legislature, there [were] all the usual gun rights advocates on one

side, and the so-called anti-gun advocates on the other side. But the end result, just to be clear, was a very

strong bipartisan approval of this bill after a very elaborate analysis of the pros and cons of the initiative,

and inclusion into the law of a whole series of procedural safeguards to ensure that the police wouldn’t

overreach here, and that there would be checks and balances all the way through . . . . [T]he vote in the

House of Representatives that year was 103 to 47, and among the Republicans. . . there was 28 ‘yes’ votes

and 19 ‘no’ votes. And in that 28 ‘yes’ votes were some of the principal gun rights advocates who were

members of the House of Representatives that year. At the end of the day, when it was finally enacted,

[the law] incorporated enough safeguards to build a level of comfort among the gun rights advocates in

the legislature, and outside. In fact . . . the Connecticut Sportsman Association was supportive . . . And

in the Senate, the vote was 29-6, and that included 11 Republican votes, including some of the strongest

gun advocates who were members of the Senate at the time . . . So, I just want to point out that when it

was enacted, a lot of time was spent trying to get the balance right.”).

43. C

ONN. GEN. STAT. § 29-38c (1999).

44. Norko & Baranoski, supra note 37, at 1615.

45. Michael Lawlor, supra note 42; see also Remarks of Sen. Williams, Transcript of Senate Debate

on Bill Number 1166, June 4, 1999, at 3103 (“[T]his bill is a product of both Republicans and Democrats

of both Senators and Representatives. Of both gun control advocates, and sportsman advocates. And

there is much to recommend in this bill.”).

46. C

ONN. GEN. STAT. § 29-38c (1999).

47. Id.

48. Id.

49. See id. (As a condition for a judge issuing a gun removal warrant, the statute requires that a

“state’s attorney or police officers have conducted an independent investigation and have determined

that such probable cause exists and that there is no reasonable alternative available to prevent such

person from causing imminent personal injury to himself or herself or to others with such firearm.”).

50. See id. (The statute requires that the risk complaint be made “on oath by any state’s attorney or

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188 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

requesting a risk warrant then goes to a Superior Court Judge, who may issue the

warrant in an expedited fashion. Such a request may also be submitted to the

judge directly by the state’s attorney, either as the originator of the complaint or

upon reviewing a statement submitted first to the state’s attorney by police

officers.

The warrant then goes back to the police, who proceed to the residence

of the subject, at which they may search for guns and seize any guns and

ammunition they find.

The police also must make a decision about what to do with the person of

concern. Options include arresting the person if there is evidence they have

committed a crime, transporting the person to a hospital emergency department

for evaluation if there is evidence they are in a dangerous mental health crisis and

might meet commitment criteria, or leaving the person alone.

If the person is

arrested, criminal proceedings will follow, and if the person is taken to a hospital,

they may be admitted or released. Within fourteen days of the gun removal, the

court must hold a hearing to decide whether to return the guns to the person or

hold the guns for up to one year.

Although the standard for the initial police

seizure is probable cause, at the hearing the state must prove by clear and

convincing evidence “that the person poses a risk of imminent personal injury to

himself or herself or to other individuals.”

Those whose guns are removed also become ineligible to hold a permit, which

is required to purchase or possess a firearm in Connecticut.

One gun owner

subjected to firearm seizure under the Connecticut law challenged its

constitutionality, arguing that it violates the Second Amendment to the United

States Constitution. The recent Connecticut Appellate Court opinion in State v.

Hope rejected this argument:

Section 29-38c does not implicate the Second Amendment, as it does not restrict the

right of law-abiding, responsible citizens to use arms in defense of their homes. It

restricts for up to one year the rights of only those whom a court has adjudged to pose

a risk of imminent physical harm to themselves or others after affording due process

protection to challenge the seizure of the firearms. The statute is an example of the

longstanding ‘presumptively lawful regulatory measures’ articulated in District of

Columbia v. Heller . . . . We thus conclude that § 29-38c does not violate the [S]econd

[A]mendment.

assistant state’s attorney or by any two police officers, to any judge of the Superior Court[.]”).

51. Id.

52. While this describes the procedure de jure, there is also a de facto practice in which police often

take guns initially as part of “securing the scene” and apply for the warrant later. This is described in part

V.B of the article, in the words of a police officer who was interviewed for the study.

53. Norko & Baranoski, supra note 37, at 1619.

54. C

ONN. GEN. STAT. § 29-38c(d).

55. Id.

56. C

ONN. GEN. STAT. § 29-36f(b) addresses pistols and revolvers; CONN. GEN. STAT. § 29-37p(b)

addresses long guns. The gun owner must appear before the Board of Firearms Permit Examiners in

order to have the firearms permit reinstated. Id. This additional process was the reason the appeal in

State v. Hope was not considered moot despite the firearms having been returned to the owner more than

a month before the appeal was heard. State v. Hope, 133 A.3d 519 (Conn. App. Ct. 2016).

57. Hope, 133 A.3d at 524–25.

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Despite initially high expectations that the statute would be widely used, very

few gun removals were carried out during the first eight years after the law went

into effect—about twenty per year, on average, from 1999 through 2006, as shown

in Figure 1. The limited number of cases may have been due to the complexity

and time-consuming nature of the removal procedures, explored further in part

V. However, following 2007 (the year of the mass shooting at Virginia Tech

University), the annual number of gun removals increased about fivefold—to

about 100 cases per year—reaching a cumulative total of 762 by the end of June,

2013.

58. The cutoff date for the study data collection was June 30, 2013. Thus, the number of cases for

that year is incomplete and should not be interpreted to show a real decline in total cases from 2012 to

2013. In fact, subsequent data collection (by the DMHAS Division of Forensic Services, Michael Norko

MD, Director) revealed a total of 184 gun removal cases in 2013, representing the highest number per

year through 2016; the data subsequent to July 1, 2013 were not included in the analyses for this current

research project.

100

120

140

160

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Figure 1. Number of Gun Removal Cases Carried Out

Under C.G.S. § 29-38c, by Year

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190 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

HE STUDY’S RESEARCH METHODS AND DATA SOURCES

Our study employed a mix of quantitative and qualitative research methods,

combining descriptive analysis of semi-structured key informant stakeholder

interviews with statistical analysis of merged administrative records for the

population of persons subjected to gun removal in Connecticut (762 in total from

1999–2013).

Wide-ranging, open-ended interviews were conducted and audio-

recorded with eleven individuals who were strategically selected to provide in-

depth information relevant to gun seizure policy implementation and practice.

These informants included judicial and law enforcement officers and

administrators, mental health professionals, advocates, and a family member of

a young adult diagnosed with schizophrenia. This article quotes and comments

on selected passages from interviews that were particularly illustrative of legal

actors’ perspectives on the purpose of the gun removal law, the need to balance

public safety interests with individual rights, practical and legal barriers to using

the law, and how these barriers might be addressed.

State courts provided data on all gun seizures conducted under C.G.S. § 29-

38c during the study period. We created a systematic database of descriptive

characteristics of all individuals whose guns were removed and the circumstances

surrounding gun seizure in these cases. These gun seizure cases were matched

and merged with statewide arrest records, services utilization records in the

public behavioral health system, and death records including cause of death, with

a specific focus on suicides using guns versus other methods. Also assembled

were records of arrest leading to conviction and public behavioral health service

encounters for the period beginning twelve months before, and ending twelve

months after the gun seizure event. The features of risk-based gun removal, and

the characteristics of the population subjected to it were further explored by

conducting descriptive statistical analyses of all gun removal cases, as well as

longitudinal analysis of criminal arrest and behavioral health treatment in these

cases, comparing the period before and after gun removal.

The study undertook a quasi-experimental analysis of the effect of the gun

seizure policy on suicides by: (1) using the known case fatality rates for different

methods of suicide to estimate the total number of suicide attempts represented

by the recorded number of deaths by suicide; (2) extrapolating a counterfactual

number of would-be suicide deaths, that is, excess deaths that would have

occurred if the gun seizure subjects had kept their guns and used them in suicide

59. Unless otherwise cited, the source of all statistics reported in the article is the authors’ original

analysis of the data described in part IV. The study was sponsored by the Fund for a Safer Future. The

formal name of the study in the Duke Health Institutional Review Board is: Implementation and

Effectiveness of ‘Dangerous Persons’ Gun Seizure Laws in Connecticut and Indiana. In order to protect

the confidentiality of private health information contained in the matched mental health records of

individuals who were subject to gun removal under the risk warrant law, the data were de-identified

within the relevant state agencies in Connecticut prior to delivery of the data to Duke University for

analysis. Privacy concerns and appropriate protections thus preclude the publication here of more

specific information tied to individual persons.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 191

attempts at the same rate as other gun-owning men in the United States; (3)

estimating the number of lives saved by subtracting the actual number from the

counterfactual estimate of suicide deaths; and (4) calculating the number of gun

removal cases needed for each averted suicide, by dividing the total number of

removal cases by the estimated number of prevented suicides.

The Connecticut Department of Mental Health and Addiction Services

(DMHAS) coordinated the process of matching and merging the gun seizure

database with other state agencies’ longitudinal records pertaining to these

individuals. The Judicial Branch provided data on court hearing outcomes. The

Department of Emergency Services and Public Protection provided records for

arrests resulting in convictions, with statutory charges. The Department of

Correction provided data on any incarcerations. The Department of Health

provided death records, including cause of death, with a special focus on suicides

and whether guns were involved. Finally, DMHAS itself provided data on

psychiatric diagnoses and services utilization for mental health and substance use

disorders. The study was reviewed and approved by the Duke Health

Institutional Review Board, the State of Connecticut Department of Mental

Health and Addiction Services Institutional Review Board, and the Yale

University Institutional Review Board.

ESULTS OF THE RESEARCH STUDY

Prevalence And Characteristics Of Risk-Based Gun Removal Cases In

Connecticut

The aggregate demographic characteristics of the study population (N=762)

provide a profile of the typical gun seizure subject in Connecticut as a middle-

aged or older married man. Almost all (ninety-two percent) of gun removal

subjects were male. Of those whose marital status was known and reported,

eighty-one percent were married or cohabiting. Five percent were military

veterans, and thirty-one percent of these veterans had been deployed in the year

before gun removal. Subjects ranged across the adult age spectrum, with an

average age of forty-seven years at the time of gun removal; the oldest was ninety-

three. In three cases, a minor was listed as the person of concern on the risk

warrant, because the law was invoked as a means to remove unsecured guns from

the possession of adults due to concern for the safety of an at-risk child.

60. Equations were as follows: Estimated N suicide attempts =

∑

(







∗(







)), where N = number

of recorded suicides, K = suicide method (1 to m), and cfr is the case fatality rate. Counterfactual N

suicide deaths =

∑

(







∗



∗



), where A = estimated number of suicide attempts, K = suicide

method (1 to m), and cfr is the case fatality rate. Estimated number of lives saved = Counterfactual N –

Actual N suicide deaths. Estimated number-needed-to-remove = N total removals/ estimated number of

lives saved.

61. These types of cases may not have been anticipated by the legislators who enacted the law and

may reach beyond the class of cases the legislators expressly intended to cover. Whether the statute

should be construed to include them raises an interesting issue of statutory interpretation on which

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192 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

About half (forty-nine percent) of the gun removal cases were initially

reported to the police by an acquaintance of the person of concern; forty-one

percent of reports came from family members and eight percent from employers

or clinicians. The other fifty-one percent were reported by people who either did

not know the person of concern or did not disclose their relationship to the police.

The social circumstances and emotional features of risk that led to these gun

removal actions were diverse—ranging from anger and conflict between intimate

partners, to emotional distress over financial problems, to the sadness of loss in

old age.

The specific information written by police on the risk-warrant petitions was

available for review in 702 gun-removal cases. Suicidality or self-injury threat was

listed as a concern in sixty-one percent of cases, and risk of harm to others was a

concern in thirty-two percent of cases. There was some overlap between these

two categories, with risk of harm to both self and others noted in nine percent of

cases. In sixteen percent of cases, the risk-warrant form did not indicate the type

or object of risk that was being alleged, leaving unspecified whether the concern

for gun removal was potential harm to self, others or both. Such cases tended to

involve persons who appeared to the police to be severely psychotic, intoxicated,

emotionally agitated, or some combination of these states, raising general safety

concerns. Examples of brief narratives recorded on risk warrant forms include:

• “extremely paranoid and delusional, set up wooden device to barricade

door to house”

• “history of bipolar, diabetic, intoxicated and yelling, went from paranoid

to agitated to upset”

• “highly intoxicated, disorganized and paranoid, references to firearms and

officer involved shooting on site, diagnosis of mental illness although no

medicine according to mother”

• “emotionally sick and not eaten for past four days, mother in hospital,

despondent and intoxicated”

• “eighty-two year old woman, disoriented, did not want to go to hospital,

evidence of dementia, wanted to bring gun to hospital”

Police found and removed guns in ninety-nine percent of cases when they

conducted a search, and they removed an average of seven guns from each risk-

warrant subject. In seventeen percent of all cases, the gun removal process

culminated in a concurrent arrest. This could have been due to the nature of the

original incident reported to police or to the subject’s uncooperative response

during the police encounter. Only four percent were convicted in connection with

an arrest on the day of the gun seizure. Most gun removal subjects were not

Connecticut judges appear to have differed. While some judges were willing to issue such warrants,

another judge stated in an interview that he had refused to issue risk warrants to remove guns from

households in cases where a child was named as the subject of the warrant request; in this judge’s view,

such cases should instead have been referred to child welfare authorities.

62. Risk Warrant Forms, Implementation and Effectiveness of ‘Dangerous Persons’ Gun Seizure

Laws in Connecticut and Indiana, Duke Health Institutional Review Board, Protocol No. 00055585.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 193

involved with the criminal justice system; about eighty-eight percent had no other

arrests leading to conviction for any crime during the year before or after the gun

removal event.

Six percent had been arrested in the year before seizure, and six percent were

arrested in the year after. Two percent were arrested both in the year before and

year after gun seizure.

By contrast, in fifty-five percent of cases police were

sufficiently concerned about the mental health or intoxicated condition of the

subject that they transported the individual to a hospital emergency department

for evaluation. In twenty-seven percent of cases, the individual was not

detained—was neither transported to a hospital nor arrested—following gun

seizure.

Most risk-warrant subjects were not known to DMHAS at the time of gun

removal. Only about twelve percent had received treatment for a mental health

or substance use disorder in the DMHAS system during the year before gun

seizure. However, many of these individuals came into contact with DMHAS as

an indirect result of the gun removal action, so that twenty-nine percent received

treatment in the system during the year following gun seizure. Of the 348 cases

with any (lifetime) matched record in DMHAS, forty-five percent were

diagnosed with a mental illness only (no substance use disorder),

twenty-six

percent with a substance use disorder only (no mental illness), and twenty-nine

percent with both mental illness and substance use disorder.

Treatment entry in many cases occurred because police found the subject of

the risk warrant in an apparent mental health crisis and transported the individual

to a hospital emergency department for evaluation, where they were admitted

for an acute inpatient stay and then discharged to outpatient behavioral health

treatment follow-up in the community. These data suggest, then, that the gun

removal intervention sometimes functioned as a signal event and a portal into

needed treatment, in addition to being a public safety action to remove lethal

weapons at a time of high risk.

Outcomes of court hearings challenging gun removal were known for thirty

percent of cases. Most of the others failed to appear in court and, importantly,

lost their legal gun access by default. Among cases with known outcomes at

hearing, results were as follows: guns held by police, sixty percent; guns ordered

destroyed or forfeited, fourteen percent; guns returned directly to the subject, ten

percent; guns transferred to another individual known to the subject and legally

eligible to possess guns, eight percent; other, eight percent.

63. The study could only obtain records of arrests that led to criminal convictions. Thus, these figures

underestimate the number of police encounters before and after the gun seizure.

64. Thirty-nine percent of those with a mental health diagnosis had a serious mental illness. Of those

with a serious mental illness, seventeen percent had schizophrenia, twenty-three percent had bipolar

disorder, and sixty percent had major depression.

65. It must be noted that still more seizure incidents may have resulted in private mental health

care—for which records were not available to the study.

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194 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

B. The Practice Of Gun Removal In Connecticut: Stakeholders’ Perspectives

On Potential Benefits And Barriers To Implementation

To obtain a more textured and nuanced understanding of the gun removal

policy in Connecticut, we interviewed a variety of respondents, including police

supervisors and front-line police officers, prosecutors, judges, a mental health

clinician, and a family member of a young adult with schizophrenia who had a

history of violent behavior. We explored their perspectives on the need for, and

purpose of the gun removal law, its intended target population, practical and legal

barriers to its use, police responses to these barriers, and the perceived

effectiveness of gun removal as a tool for reducing gun violence and suicide. In

what follows, we quote and comment on interviews that were particularly

illustrative of legal actors’ views of the gun seizure law—its purpose and process,

as well as challenges to implementation and how these challenges can be

addressed.

One respondent was a former prosecutor who had participated in many risk-

warrant gun removal proceedings under C.G.S. § 29-38c. He described a

hypothetical case in which the law could be used to separate guns from an

individual who clearly poses a significant risk of harm to self or others, but has

not committed a crime, does not necessarily have a mental illness, and would not

otherwise be legally prohibited from purchasing and possessing a firearm:

A lot of times the people who have their weapons seized are not having a bad life—

they’re having a bad moment. A lot of times they’re in darkness for a day . . . . It’s the

wife just told him, “We’re getting a divorce,” and they begin drinking, or they [make]

suicidal comments to somebody . . . . [Let’s say] my wife [and I] had a disagreement. I

have two pistols and a rifle, and what I did was I left the house, and she saw me leave

the house. I put the guns in my car and the last thing I said to her was, “You know what?

I am done here. I’m done with everybody. I’m finished.” And I had a couple of gin and

tonics in me, and I said “I’m going to go to my favorite place and no one’s ever going to

see me again.” She calls the police. I’ve committed no crime; I haven’t threatened

anybody. She calls the police and gives the police identifying information of the truck I

left in. She knows that my favorite place as a little boy was Penwood State Park. The

police department goes down and finds my truck at the Penwood State Park. You know

what I was doing? I was just having a couple more gin and tonics at the present time.

They roll up on me. “Sir, is everything okay?” “Yeah everything’s just fine. Why?”

“Well, we got a call that you were a little disconsolate.” They do a warrant. They secure

the guns.

The attorney further articulated the law’s rationale by noting its public safety

purpose and its specific applicability to cases where the police would otherwise

lack clear authority to intervene and to remove guns—situations where people

have, as he put it, “violent propensities that do not rise to [the level of] a criminal

event for an arrest, but nonetheless [we] have to take these guns from them for

the protection of themselves and the public.”

While thus noting that the law

66. Interview with Connecticut Prosecutor, Implementation and Effectiveness of ‘Dangerous

Persons’ Gun Seizure Laws in Connecticut and Indiana, Duke Health Institutional Review Board,

Protocol No. 00055585. In compliance with approved IRB protocol, a different name is used for the state

park mentioned in the first quotation.

67. Id.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 195

primarily serves the public’s interest in safety, the attorney also emphasized the

need to be reasonable and fair to the individual respondent in gun removal

actions—highlighting the importance of legal due process protections

commensurate with abridging an individual right and removing a person’s private

property.

Such legal safeguards, in his view, motivate both the temporary

feature of gun seizures and the conditioning of rights restoration upon evidence

of reduced risk:

Politically, I believe that [gun removal under C.G.S. § 29-38c] is what the public wants

us to do. They want us to take affirmative steps, [but let people] have their day in court.

No one’s saying . . . . “We’re taking your property and you’re never going to get it back.”

That’s not fair. That’s not reasonable. [We are saying] you’ll have a day in court when

you’re no longer in crisis. When you’re receiving treatment, you may get those weapons

back.

To the concern that gun removal might be carried out unfairly in reliance on

a single police officer’s biased report of risk, the attorney noted a system of

checks in the risk warrant’s requirement that a series of three observers concur.

This, he believed, should reassure those who fear that the power to remove guns

could be abused:

[I]t gives them a certain amount of reassurance that they’re not just counting on the

police to make this determination. You have three sets of eyes [that] have looked at

this. You have the police who are on the scene, the State’s Attorney who is going to . . .

read a report and see if [evidence of risk] is there, and then a third set [of eyes], the

judge, who is now going to look at it, and again—separate from being on the scene and

being there—reading over just a report within those four corners, making a

determination as to whether you can do something which is rather large, in that you are

going to remove a person’s Constitutional rights. So, having three sets of eyes I think is

probably important.

And yet, despite this nod to fairness and due process, the former prosecutor

also seemed to allow for discretion—even some manipulation of the legal rules—

based on the legal actors’ own perceptions of a subject’s character and the nature

of the risk at stake. Indeed, rather than relying too much on an adversarial system

of legal representation to ensure fairness in every case, he described a kind of

collaborative application of leverage by the State’s lawyer and the judge—almost

implying that this was somehow appropriate because the action in question

involves only a civil deprivation and not a criminal sanction. Specifically, in

68. Id.

69. Id.

70. See C

ONN. GEN. STAT. § 29-38c (1999) (The statute refers to the roles of three kinds of actors in

the risk warrant process—police officers, a state’s attorney, and a judge of the Superior Court. In the

typical case, all three of these actors will have considered and concurred that the available evidence

supports the required probable cause determination for a risk warrant. Technically, though, a risk

warrant could be issued on the basis of concurrence between only two sets of actors: the police and the

judge, or the state’s attorney and the judge: “(a) Upon complaint on oath by any state’s attorney or

assistant state’s attorney or by any two police officers, to any judge of the Superior Court, that such state’s

attorney or police officers have probable cause to believe . . . such judge may issue a warrant commanding

a proper officer to enter into or upon such place or thing, search the same or the person and take into

such officer’s custody any and all firearms and ammunition.”).

71. Id.

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196 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

response to a question about whether the subjects of gun removal should have

access to legal representation, the attorney gave this answer:

It’s not a criminal matter; it is a civil matter. . . . You [as a subject of gun removal] have

an option. One, you can roll your dice with the hearing. Two, you can say to me [as the

State’s lawyer] right now, “I am not comfortable going forward without an attorney.”

And I will go up and tell the judge you would like counsel. And [you] would be told,

“We are not going to have the hearing [now] and you’re not going to get the guns back.”

And then [people think,] “Oh, I’m going to have to pay for an attorney now to get my

guns back?” [So the hearing goes forward.] That happens most of the time . . . I would

then go into chambers and lay it out for the judge exactly what we talked about. I would

say, “Look, I think this guy is a good guy,” or “I think this guy is a borderline guy.”

Despite such efforts to make the law work at the judicial level, there are

significant barriers to carrying out these gun removal actions at the policing level,

which hampers broader implementation of the statute. When asked to explain

why such a small number of gun removals have been completed throughout the

state—less than fifty cases per year, on average, since C.G.S. § 29-38c was enacted

in 1999

—the attorney pointed to a mismatch between available police staffing

resources in most departments and the statutory requirement that two officers

appear as co-affiants before a judge to obtain the risk warrant:

Most law enforcement agencies in this state are less than forty officers. [That] means

that for any one given shift, you have a supervisor and two patrol officers. With [the

requirement of] two affiants that have to appear in front of a judge, you have no police

on the street. So a supervisor or a law enforcement executive is going to say, “Do you

really need to do that warrant? Do you really need to draft it right now, at 3:00 in the

morning on Halloween? Okay? We don’t have the staff for that.” So that goes to the

wayside and you run, or you roll the dice. [If you] roll, you run the risk of whether this

person’s going to go out and be violent.

Other logistical issues may impede wider use of the gun removal law. A police

administrator was among several interviewees who identified the problem of gun

storage as a significant barrier:

[If we take someone’s gun], we now have a piece of property . . . and we’re stuck with

it. What do we do with it for the next 200 years? It sits in our gun cabinet. So we may

look at other alternatives, you know—[store it with] family members who have the legal

right to own firearms.

A former police officer likewise expressed concerns about the law’s

implementation and effectiveness, pointing first to the statute’s “obscure” nature

and the cumbersome aspects of the risk-warrant process:

Do I think 29-38C—when it was written, when it was drafted, and how it had been

utilized pre-Sandy Hook—was effective? No, I don’t believe it was effective. Why? It

was an obscure statute. It was something that was labor-intensive. It was something that

required an affiant, a co-affiant, supervisor’s review, State’s attorney’s office review,

and approval and a judge’s signature and then, of course, execution on that warrant.

Okay, so I didn’t think it was a streamlined, timely process. I know that traditionally

72. Id.

73. Norko & Baranoski, supra note 37.

74. Id.

75. Interview with Connecticut Police Administrator, Implementation and Effectiveness of

‘Dangerous Persons’ Gun Seizure Laws in Connecticut and Indiana, Duke Health Institutional Rev.

Board, Protocol No. 00055585.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 197

with a lot of this stuff, the state will come up with something and the citizenry and law

enforcement doesn’t even know it exists. And that has happened time and time again.

The former officer seemed to imply that the gun removal statute has

amounted to little more than another unworkable policy concocted by obtuse

state lawmakers and bureaucrats, promulgated top-down without properly

informing either the rank-and-file officers who would be expected to carry out

the policy or the public that might be affected by it.

As if to illustrate the possible perverse consequences of what he sees as a

poorly implemented law, the former officer went on to describe a particular case

in which the police seized a citizen’s guns without following the required legal

procedures, and a judge then improperly decided to retain the guns at the hearing

anyway, notwithstanding evidence of the police officers’ illegal removal action.

Despite expressing some human understanding for a risk-averse judge’s

improper decision in the case, the respondent argued that the ultimate result of

such official malfeasance is loss of public trust in the legal system, and a sense of

betrayal especially among law-abiding gun owners who are otherwise inclined to

trust the police. This is a point that he thinks is lost, ironically, on many

lawmakers and judges:

Just from a human point of view I understand, you know, if you’re a judge, you don’t

want to give the guns back and have something happen the next day and be on the front

page. But you still should follow the law . . . . The judge didn’t [follow the law], and we

got all this embarrassing testimony . . . . Firearms owners especially feel put-upon. I

don’t think the legislature, I don’t think the judiciary realizes how, how strongly

offended people are by that . . . . These are people that have trust in the system . . . .

These are people that support the police, were in the military, you know, read the paper

and when somebody is arrested they assume he’s guilty because “the police don’t arrest

people who aren’t guilty.” I mean, that’s who these people are. And then they come up

with stuff like this, their whole universe is shaken, you know, and that’s very distressful

for people. Nobody recognizes that.

Still, some police supervisors and field officers who were interviewed did

express general support for the risk-warrant law, as they explained how they

carried out its legal requirements in practice on a fairly routine basis. The police

administrator described in detail how the police can, in many cases, quickly fill

out the required form, obtain a warrant from a judge on call, and carry out a gun

removal action within a few hours’ time:

I mean, most of it is a [three to five] line narrative. You know, “We got a report of a guy

wanted to commit suicide. I showed up, he was sitting in the corner with a loaded .357.

He said to me, he wanted to commit suicide. I talked to him and he put it down. We sent

him to the hospital. He owns additional firearms [and] we want to take them all.” So

you take this . . . down to a judge, and there are judges on call in the State of Connecticut

twenty-four hours a day . . . and [we] have a very regular working relationship with

them. The judge’s phone rings at two o’clock in the morning, it’s us, and one of us drives

over there with a warrant. He reviews it, signs off on the bottom of it, we go back and

we take all the guns. In the meantime, officers are sitting at the location where all the

76. Interview with Connecticut Police Officer, Implementation and Effectiveness of ‘Dangerous

Persons’ Gun Seizure Laws in Connecticut and Indiana, Duke Health Institutional Rev. Board, Protocol

No. 00055585.

77. Id.

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198 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

guns are, and securing it, our subject is gone to the hospital. We get the warrant signed,

we go back to the house and we collect everything related to the gun . . . firearms,

obviously, ammunition, components for making ammunition, gun powder and those

kinds of things, because if they are there, anybody with the internet in twenty minutes

could build something.

In the same interview, however, this police supervisor explained how police

officers often circumvented the risk-warrant process out of an immediate concern

for safety at the scene. In pressing circumstances, it seems that police have other

justifications for removing guns, and may need the risk-warrant only to continue

holding the weapons once the immediate risk of the scene has passed:

The process of obtaining control over firearms [can] happen very quickly . . . in the

absence of a warrant, as a matter of fact. It can happen that way. What we end up doing

is following up with one of these warrants [after seizing the guns], and then we serve it

on ourselves, basically. We serve it on the caretaker of the records department. She has

control of the guns once we get them here, and we end up serving her with the warrant.

And then that starts the documentation of what we did . . . . “This is what we seized as

a result of this warrant,” and then we file it with the court . . . . We are at that point

compelled to complete the return of service, provide the copy of the entire thing to the

subject of the warrant. Our guy is going to be locked up in evaluation at that point in

time . . . . So we have to go to the civil court clerk . . . and so the civil clerk would get a

copy of our warrant now. They stamp the receiving of the warrant, and create a record,

where the individual who is the subject of the warrant now gets notification that in two

weeks, this day, you’re going to have a hearing about these guns.

Regarding the problem of delay in obtaining a risk warrant, one lawyer

suggested that a solution would be to change the law to resemble provisions

currently available under domestic violence circumstances, in which the officer

merely needs probable cause to believe that significant risk exists in order to seize

weapons, with the warrant being obtained later:

Officers have the ability to short circuit that whole warrant process under domestic

violence circumstances in which a weapon was used, present, or on-scene at the time of

the incident. Officers can seize those and take them for safekeeping. What we would

like to see is a . . . scheme like the domestic violence provisions [where] . . . once

probable cause is determined we’ve met that Fourth Amendment threshold. Okay?

Once probable cause is determined, the officers, if there’s a weapon on scene, or there’s

availability of weapons, we can seize. They can go back and do the warrants later.

In summary, the shared perspectives of key respondents in the gun removal

process help us to better understand both the potential benefit that a risk-based

gun removal law may offer in terms of public safety, as well as some of the key

reasons why it is challenging to widely implement such a law while safeguarding

individual rights and ensuring legal due process in every gun seizure case.

78. Police Administrator, supra note 75.

79. Police Officer, supra note 76. An additional illustration of this alternative process is found in

State v. Hope, where the firearms were seized by police responding to a call of concern by the owner’s

wife. Four days later, the warrant was issued. 133 A.3d 519, 523 (Conn. App. Ct. 2016).

80. Interview with Connecticut Attorney, Implementation and Effectiveness of ‘Dangerous Persons’

Gun Seizure Laws in Connecticut and Indiana, Duke Health Institutional Rev. Board, Protocol No.

00055585.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 199

C. Suicide Outcomes In Connecticut’s Gun Seizure Population

A match of gun removal cases to state death records revealed that twenty-

one individuals had completed suicide at some time following the gun removal

event.

This equates to an annualized suicide rate of 482 per 100,000 in the study

population, based on an average of 5.7 years at risk per person. This rate is

approximately forty times higher than the average suicide rate of twelve per

100,000 per year in the general adult population of Connecticut during the same

period.

Importantly, however, only six of the twenty-one suicides in the study

were carried out with guns, while fifteen used other means: ten by suffocation or

hanging, two by vapor poisoning, two by drug overdose, and one by a self-

inflicted stab wound to the chest.

The proportion of these suicides that involved guns (twenty-nine percent) was

lower than the corresponding gender-matched proportion for all adults in

Connecticut, averaged across the same years (thirty-five percent),

and much

lower than would have been expected in a population of gun owners (at least

sixty-five percent).

This is consistent with a gun-deterrent effect associated with

removal. Police had removed an average of six guns from each of these

individuals.

Considering the initial court hearing decisions in these cases, three of the six

eventual gun suicides involved individuals whose guns had been held pending

further action. In the other three cases, the hearing outcome was listed as

unknown, presumably because they failed to appear and thus lost their gun rights

for twelve months by default. Among those who used other means of suicide,

three initial court hearing decisions were held pending further action and twelve

were unknown.

Notably, none of the six gun suicides occurred during the twelve-month

period following gun seizure when the law allowed guns to be retained by police.

81. The death records were matched and provided to the study investigators by the Connecticut

Department of Health.

82. CDC, supra note 10 (providing the most current online report of fatal and nonfatal injury

statistics collected by the CDC, by year, region, type of injury, and demographic category).

83. Id.

84. The proportion of suicides that use guns, that is, the number of firearm suicides (FS) divided by

the total number of suicides (S), or FS/S, has been shown to be highly and reliably correlated with the

rate of (survey-reported) gun ownership at the state level: r = (approximately) 0.81. Indeed, the

correlation is so strong that researchers have used the time-varying FS/S proportion as a proxy measure

of change in state gun ownership rates. See Deborah Azrael, Philip J. Cook & Matthew Miller, State and

Local Prevalence of Firearms Ownership: Measurement, Structure and Trends, 20 J.

QUANT. CRIM. 43,

43–62 (2004) (finding that the F/FS ratio is a more effective proxy for gun ownership than several other

indicators, including NRA membership per capita). To illustrate, in the ten states (including Connecticut)

with the lowest household gun ownership rate (averaging seventeen percent), guns were involved in

thirty-nine percent of male suicides and sixteen percent of female suicides. In contrast, in the ten states

with the highest household gun ownership rate (averaging fifty-six percent), guns were involved in sixty-

nine percent of male suicide and forty-four percent of female suicides. With respect to these gun seizure

subjects in Connecticut, then, the FS/S rate arguably should have been even higher than in these high

gun-owning states, because the baseline rate of gun ownership was, by definition, 100 percent (absent the

intervening gun seizure).

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200 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

Instead, all of these gun suicides occurred after the date when these individuals

would have become eligible to have their guns returned or to once again legally

purchase guns. Regarding the timing of suicide in those who used means other

than guns, five of the non-gun suicides occurred within twelve months of the

seizure event; four more occurred within sixteen months. Overall, the time from

the date of gun removal to date of death by suicide was considerably longer for

those who used guns (average 3.7 years) than for those who used other means

(average 2.2 years.) This finding is consistent with the explanation that gun

removal effectively delayed access to guns for use in suicide (typically for twelve

months or more), while those who used other means would have had access to

those means at any time.

Eighteen of the suicide victims were men, and three were women. Their ages

at death ranged from thirty-three to seventy-five years, with an average of fifty

years. Two were United States military veterans, one who had served in the

Vietnam War and the other in the Iraq-Afghanistan War, deployed in the year

before his guns were removed. Seven of these individuals were reported to be

intoxicated at the time of the seizure event (six with alcohol, one with a

prescription drug).

Eleven of the twenty-one suicide victims had been transported to a hospital

emergency department in conjunction with their gun removal event. Nine of

them had received treatment in Connecticut’s public behavioral health system,

and three had been involuntarily committed to a psychiatric hospital. Of those

with treatment records, five were diagnosed with a serious mental illness, five

with a substance disorder, and three with both. While six had a matching

historical record with the Department of Correction, none had been convicted of

a crime in the twelve months preceding the removal event. However, one

individual had an arrest resulting in conviction in connection with the gun

removal event itself, and two had an arrest resulting in conviction during the

twelve months following gun removal.

When people have their guns removed and go on to commit suicide anyway,

it would seem that the policy has obviously failed in these particular cases.

However, because the majority (seventy-one percent) of the suicides in the study

used methods other than guns—and specifically used methods that are known to

be less lethal than guns—it is possible that the policy was beneficial overall, and

that there would have been even more suicides without it in place. To test this,

we estimated the total number in the sample who attempted suicide by

alternative means and survived. We then estimated the additional number who

would have died if their guns had not been taken away, based on independent

85. Two stories with different endings illustrate this finding. In the first case, police received a call

from a man in his early thirties who “sounded very depressed, said he had consumed alcohol and

explicitly threated to kill himself with one of his firearms.” Police seized four rifles and two shotguns in

the case. The man eventually did complete suicide with a firearm, but not until six years later. In the

second case, a middle-aged man threatened to shoot himself after his wife asked for a divorce. His guns

were removed and ordered held pending further action. This second man also completed suicide, just

over one year later, but by means of hanging—not with a gun.

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 201

evidence as to the proportion that would have used a gun instead of a less lethal

means in their suicide attempt. More specifically, using the known case fatality

rates associated with each of the suicide methods used,

we extrapolated the

number of suicide attempts represented by each completed suicide, according the

following formula:

Estimated N suicide attempts =

∑

(







∗(







)) where N=number of

recorded suicides, K=suicide method (1 to m), and cfr is the case fatality rate.

Table 1 displays the result of these calculations and yields an estimate of 142

suicide attempts.

Using this calculated number of suicide attempts, we created a counterfactual

data array to estimate the additional number of suicide deaths that would have

occurred in the absence of the gun seizure policy. Construction of the

counterfactual required making an assumption about what proportion of gun-

owning men in the baseline (pre-intervention) target population who are inclined

to attempt suicide would use a gun in their suicide attempt.

In our study, the

target population could best be described as men who own multiple guns and are

deemed to pose a high risk of harming themselves or others with a gun. There are

86. Case fatality rates for specific suicide methods in the Connecticut population are calculated by

combining data on suicide deaths with data on hospital discharges for intentional self-inflicted injuries,

using 2012 as the index year. Data on the number of suicide deaths by each means were obtained from

the Connecticut Office of the Chief Medical Examiner. Data on the number of hospital discharges for

self-inflicted injuries by each means were obtained from the Connecticut Hospital Inpatient Discharge

Database, Department of Public Health. The means-specific case fatality rate is given by the number of

suicides for each particular method, divided by the sum of suicides and intentional self-injury hospital

discharges for that method.

87. The large majority (ninety-two percent) of gun seizure cases were men.

Method of intentional

self-injury

Completed

suicides

Case

fatality

rate

Estimated

nonfatal

attempts

Estimated total

attempts

Firearm

6 87.0% 1 7

Hanging/strangulation 10 72.7% 4 14

Poisoning - gas 2 37.5% 3 5

Poisoning - drugs 2 2.7% 72 74

Incision/cut 1 2.4% 41 42

Total 21 14.6% 121 142

Table 1. Completed Suicides and Estimated Number of Suicide Attempts, by

Method of Self Injury, among Connecticut Gun Seizure Cases

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202 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

no precise data for this specific population as to the distribution of preferred

suicide methods. However, we were able to estimate this information for our

study population using state-level, year-specific data on the frequency of

different suicide methods among men, the estimated number of suicide attempts

for each method in each state, based on known case fatality rates, and the linear

correlation of the (survey-derived) rate of gun ownership in each state

with the

estimated proportion of gun involvement in adult male gun suicides in each

state.

Specifically, the state-level linear correlation between the probability of gun

ownership for any adult in a given state and the proportion of adult male suicide

attempts using guns was r = 0.79. We used the resulting regression equation to

calculate the probability that any adult male who owns a gun and attempts suicide

will use a gun in doing so, rather than some other method. That result (p = 0.39)

was used, in turn, to create the counterfactual hypothesis to estimate the number

of excess fatalities that could have been expected in the absence of gun seizure,

and then the number of gun seizure cases needed to prevent one suicide. The

result for the latter was approximately twenty.

We consider that this initial estimate—twenty gun seizures for every averted

suicide—is likely the most conservative, because it does not account for any

excess risk of gun suicide associated with being identified as a gun seizure

88. See Bindu Kalesan, Marcos D. Villarreal, Katherine M. Keyes & Sandro Galea, Gun Ownership

and Social Gun Culture, 22 I

NJ. PREVENTION 1, 1–5 (2015) (finding a close correlation between social

gun culture, gun ownership, and firearm suicide).

89. CDC, supra note 10.

10 20 30 40 50 60 70 80 90 100

Target population’s baseline proportion

of all suicide attempts that use guns

Estimated

number of

gun

removal

cases

needed to

avert 1

s uicide

Figure 2. Estimated Number of Gun Removal Cases Needed to Prevent One

Suicide in a Population at High Risk for Suicide, as a Function of the Target

Population’s Baseline Proportion of All Suicide Attempts that Use Guns

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 203

candidate and determined by a judge to be at high risk of harming self or others

specifically with a gun. Indeed, it would seem reasonable to expect a much higher

chance than thirty-nine percent that such a high-risk, multiple-gun-owning, male

gun-seizure candidate would have chosen a gun, and not something else, as the

preferred method of suicide, if his guns had not been removed by the police.

Rather than speculating on this, we calculated the mathematical relationship

between the expected proportion of gun use in suicides in a given target

population, and the corresponding number of gun seizures that would be needed

to avert a single suicide in that population. The model assumes that the

hypothetical target population resembles the research study population of gun-

removal cases in Connecticut with respect to the underlying prevalence of suicide

attempts. The association follows a curvilinear form and is displayed in Figure

This graph illustrates that a gun seizure policy in any particular jurisdiction

would be expected to be more or less efficient in preventing suicide as a

predictable function of how often guns tend to be used in suicide attempts in the

target population. If the law is applied to a population at risk in which guns are

used very rarely as a method of suicide, it may be necessary to conduct a great

many gun removals in order to prevent a single suicide. However, when the law

is applied to a population at high risk of using guns in any suicide attempts, it may

take far fewer gun removal cases to prevent one suicide.

As an example, if approximately seventy percent of the estimated 142 gun

seizure suicide attempters in the Connecticut gun seizure database had used guns,

101 gun suicide attempts would have been expected, resulting in eighty-eight

completed gun suicides. Assuming that the remaining forty-one non-gun suicide

attempters had used alternative means in the same proportions as observed in

the actual data, and applying the appropriate weighted average of lethality rates

to those other means of suicide, we would have expected an additional five non-

gun suicides, for a total of ninety-three—or seventy-two more suicides than the

twenty-one that actually occurred. Dividing the total number of gun seizures by

this estimated number of averted gun suicides (762/72) yields an estimate of

approximately one averted suicide for every ten to eleven gun seizure cases. That

calculation is illustrated in Table 2.

90. Estimate is derived from a state-level regression of the proportion of suicides that involve guns

on the household gun ownership rates, and by extrapolation of the number of suicide attempts from case

fatality rates applied to reported suicides by different methods in each state.

91. The counterfactual assumes that gun-owning men who attempt suicide in Connecticut would be

as likely to use a gun in their suicide attempt as all men who attempt suicide in a high gun-ownership

state. Estimated number of fatalities based on firearm suicide rates among Connecticut adults, 1999–

2013, are reported by CDC WISQARS™ data. CDC, supra note 10.

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204 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

VII

UMMARY AND IMPLICATIONS

Every day in the United States, more than 230 people are injured in gunfire

and about ninety of them die—sixty of them by their own hand.

Almost ninety

percent of people who attempt suicide survive, and the large majority of those

survivors do not go on to die in a subsequent suicide attempt; they are far more

likely to die from some other cause later in life.

However, people who use a

firearm in that first suicide attempt almost never get a second chance; nationally,

only about nine percent of gun suicide attempters survive.

Using the law to

prohibit a suicidal person from purchasing a gun is a good idea, but one that will

not work—even with a comprehensive background check system—as long as

those who are inclined to harm themselves do not fall into some category of

persons prohibited from possessing or purchasing firearms under federal or state

law. New research evidence suggests that people who die from self-inflicted

gunshot wounds, even those suffering from a serious mental illness, typically have

no gun-disqualifying record of any criminal or mental health adjudication.

92. See CDC, supra note 10 (here extrapolating a daily rate of firearm injury and mortality from the

WISQARS™ report of all fatal and nonfatal gun injuries in 2014).

93. See David Owens, Judith Horrocks & Allan House, Fatal and Non-Fatal Repetition of Self-Harm:

Systematic Review, 181 B

RIT. J. OF PSYCHIATRY 3, 193, 193–99 (2002) (discussing results of a systematic

review of published follow-up studies of survivors of suicide, which found that only seven percent of such

survivors eventually died of a subsequent, fatal suicide attempt).

94. See CDC, supra note 10 (The survival rate for gun suicide attempts—9.0 percent—is calculated

by dividing the total number of firearm suicides—3,320—by the sum of fatal and nonfatal intentional

self-injuries with a firearm—36,919—as reported in the CDC’s WISQARS™ databases for 2014).

95. See Swanson, supra note 24, at 1071 (reporting that sixteen percent of the Florida study subjects

who died from suicide had a gun-disqualifying criminal record only, ten percent had a gun-disqualifying

mental health adjudication record only, two percent had both types of disqualifying records, and seventy-

Table 2. Estimated Suicide Prevention Effect of Connecticut's Gun Removal Policy

Suicide outcomes for

actual gun removal

cases

Counterfactual

(hypothetical) data

assuming no gun removal

Estimated policy effect

Attempts Fatalities Attempts Fatalities

Number of

averted

suicides

Number

needed to

remove

Firearm 7 6 101 88

Other means 135 15 41 5

Total 142 21 142 93 72 10.6

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Indeed, the large majority of them would have been able to legally buy a gun on

the day they used one to end their own life.

In a country where guns are highly prevalent and where the right to purchase

and possess them is constitutionally protected,

it would seem prudent for states

to adopt carefully tailored, civil (rather than criminal), public-safety-minded laws

designed to separate guns from dangerous people—laws specifically targeting

those few individuals who pose a clear and present risk of harm to themselves or

others but who are not otherwise restricted from purchasing or possessing guns.

The exercise of state authority to remove guns from private citizens under such

risk-based regimes must, of course, be checked by appropriate due-process

protections commensurate with abridging constitutional rights, including the

opportunity for timely restoration of gun rights when risk recedes. Connecticut

pioneered the use of these temporary preemptive gun removal laws, but research

has been lacking to inform other jurisdictions about the particular challenges of

implementing the laws, including evaluating their effectiveness and their cost to

personal liberty.

This article has presented the results of an extensive, mixed-methods

empirical study of Connecticut’s experience with its pioneering gun removal law.

As this study demonstrates, there has been a considerable shift between the

original impetus for the statute—public concern over a highly publicized

homicide—and the actual use of the law—concern over harm to self and the risk

of suicide, with referrals often coming from family members. This law took

several years to begin to work itself into routine practice as a useful tool for public

safety and suicide prevention. Considerable barriers to implementation, such as

the real and perceived time burden placed on police officers, seem to have

prevented more extensive application.

Is the risk-warrant law being implemented and enforced fairly in

Connecticut? Securing the guns first, getting the warrant later is not uncommon.

While this reversed sequence might appear to raise due-process concerns, it was

clear from our interviews that police officers often justified it on the basis of an

immediate risk to public safety at the scene. To the extent that some officers may

also deviate from the statutory process for reasons of expediency and

convenience, there could be some benefit in systematic education through the

Department of Emergency Services and Public Protection focused on the risk-

warrant law, as well as development of specific gun removal protocols to improve

police practice in this area.

Is the risk-warrant law targeting the right people, and does it actually work to

reduce gun-related violence and suicide? It is difficult to answer the question

two percent had neither).

96. Id.

97. Following the Supreme Court’s interpretation of the Second Amendment right as articulated in

Heller v. District of Columbia, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010),

the limited role of law in preventing gun violence in the United States is mainly to keep guns out of the

hands of dangerous individuals.

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206 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

about violence to others without more cases to study, given the low base rate of

gun-related aggravated assault and homicide in the population.

Also, the fact

that our study only had access to the records of arrest resulting in conviction—

and we know independently that the majority of gun-related arrests in

Connecticut do not result in convictions—posed a further obstacle to accurately

measuring this outcome.

Still, that almost nine out of ten gun seizure subjects

had no convictions during the year before or after the gun removal event suggests

that the policy is not targeting criminally involved individuals. This stands to

reason, because a criminal background often precludes legal gun ownership in

the first instance; police would not typically need to invoke a civil risk-warrant

statute to separate guns from a known or accused criminal offender.

With respect to suicide, however—and suicide concern was the most common

type of risk motivating these gun removals—the data from Connecticut may

provide the basis for a productive policy discussion. First, the law in Connecticut

has de facto targeted a population of people at exceedingly high risk of suicide,

about forty times higher than that of the general population of the state. And to

summarize the key finding, the study found that twenty-one individuals in the

gun seizure database had died from suicide—six of them with guns and fifteen by

other means. Using Connecticut population data on the case fatality rate

associated with various means of suicide, we estimated that these twenty-one

suicides represented 142 suicide attempts, 121 of them being nonfatal. This, in

turn, allowed us to calculate by extrapolation how many additional fatalities

could have been expected if these individuals had retained their guns, and had

alternatively used a gun to attempt suicide. In this manner, we estimated that

approximately ten to twenty gun seizures were carried out for every averted

suicide. Are those numbers low or high? Is this a fair public health tradeoff? That

is for policymakers to decide; but these data can help frame what is in the balance

between risk and rights.

VII

ONCLUSION

Gun violence in America remains a multifaceted public health problem

whose long-term solution calls for evidence-based public policies to address a

range of contributing factors: gun safety concerns, illegal trafficking and access,

as well as social and psychological determinants of assaultive and self-injurious

behavior. But in a nation with a constitutionally protected individual right to bear

arms, a gun-celebrating culture, powerful political and corporate gun interests,

and a very high prevalence of private gun ownership, there are stiff headwinds

98. See CDC, supra note 10 (reporting that Connecticut’s average annual rate of gun homicide

between 1999 and 2015 was 2.16 per 100,000 inhabitants); see also Fed. Bureau of Investigation, Uniform

Crime Reports, https://www.ucrdatatool.gov (reporting that Connecticut’s average annual rate of

aggravated assault between 1999 and 2012 was 164.7 per 100,000 population).

99. See Swanson, supra note 18, at 38 (“Independent analysis from the Office of Legislative Research

in Connecticut has shown that about ninety-two percent of firearms violations (for example, illegal

possession, transfer, and use of a firearm in a crime) in the state do not result in convictions[.]”).

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No. 2 2017] RISK-BASED GUN REMOVAL LAWS 207

facing any form of firearms regulation. That guns are here to stay in America

implies that efforts to reduce gun violence must be mainly about preventing

dangerous behavior and restricting access to guns by individuals who

demonstrate a significant risk of harming themselves or others. How to do that

effectively and fairly, given the legal requirements for removing gun rights on the

one hand, and the inherent scientific difficulty of predicting violent behavior on

the other, is the essential challenge for policymakers and researchers.

Many current policies in the field of gun violence prevention are focused on

improving the efficacy of background checks to identify and deter prospective

gun purchasers who are legally prohibited from owning firearms.

100

However,

background checks alone may fail to prevent gun violence in some cases because

the prohibiting criteria correlate poorly with risk, and because guns are often

acquired in private transactions not subject to background checks. Thus, many

individuals at risk have ready access to firearms—sometimes multiple firearms—

in their homes. In a country with more privately owned guns than people

101

and

many states with large percentages of households having firearms, strategies to

prevent gun violence must consider ways to mitigate the risk posed by guns that

are already possessed by persons who may be inclined to harm others or

themselves.

Laws that authorize police to remove guns from persons at risk of violence or

suicide appear to be a logical and complementary approach to background

checks in preventing gun violence. This study advances the field of gun violence

prevention also by providing new information regarding the challenges to

implementation of removal laws in one state. Potential changes to the law could

streamline the gun-removal process and make it easier for police to take

preventive action when appropriate. One such change, which was suggested by

an expert respondent interviewed for this study, would be to allow police to

remove guns immediately with probable cause; this would be similar to current

practice in domestic violence situations where a gun surrender requirement is

triggered by an ex parte temporary order of protection.

102

This study suggests that

100. See Bureau of Just. Stat., FY 2016 NICS Act Record Improvement Program (NARIP) (CFDA

#16.813), at https://www.bjs.gov/content/pub/pdf/narip16sol.pdf [https://perma.cc/BDS2-PL35]

(providing an example of such a policy: “The NICS Improvement Amendments Act of 2007, Pub. L. 110-

180 (NIAA or the Act), was signed into law on January 8, 2008, in the wake of the April 2007 shooting

tragedy at Virginia Tech. The Virginia Tech shooter was able to purchase firearms from a Federal

Firearms Licensee (FFL) because information about his prohibiting mental health history was not

available to the NICS, and the system was therefore unable to deny the transfer of the firearms used in

the shootings. The NIAA seeks to address the gap in information available to NICS about such

prohibiting mental health adjudications and commitments, and other prohibiting factors. Filling these

information gaps will better enable the system to operate as intended to keep guns out of the hands of

persons prohibited by federal or state law from receiving or possessing firearms. The automation of

records will also reduce delays for law-abiding persons to purchase firearms.”).

101. See Ingraham, supra note 26 (discussing one recent estimate that there are 357 million privately

owned firearms in the United States, which is more than the estimated U.S. population of 320 million).

102. See Wes Duplantier, New Connecticut Law Requiring Guns Be Surrendered in Restraining Order

Cases Takes Effect Saturday, N

EW HAVEN REG. (Sept. 30, 2016) (describing the enactment of Public Act

No. 16-34, An Act Protecting Victims Of Domestic Violence: “[The new law] requires a person to

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208 LAW AND CONTEMPORARY PROBLEMS [Vol. 80: 179

risk-based gun removal laws, even as currently implemented in Connecticut, can

be at least modestly effective in preventing suicide. Expanded police training in

the features of such a law and police protocols for safely removing guns from

persons at risk of harm to self or others might further enhance the law’s utility

and public safety benefit.

Millions of Americans every year undergo a personal background check to

purchase a firearm, and over ninety-eight percent of them are approved.

103

Some

small proportion of those legal gun buyers will later experience a period in their

lives when they pose a serious, knowable risk of interpersonal violence or

suicidality—engaging in threatening or dangerous behavior

104

apparent to those

around them—yet will not be legally or practically prohibited from accessing

guns. The evidence presented in this article suggests that enacting and

implementing laws like Connecticut’s civil risk warrant statute in other states

could significantly mitigate the risk posed by that small proportion of legal gun

owners who, at times, may pose a significant danger to themselves or others. Such

laws could thus save many lives and prove to be an important piece in the

complex puzzle of gun violence prevention in the United States.

surrender their firearms if they are subject to a temporary restraining order. It further bars them from

getting those guns back until there is a court hearing.”).

103. See Jennifer C. Karberg, Ronald J. Frandsen, Joseph M. Durso & Allina D. Lee, Background

Checks for Firearm Transfers, 2013–14 Statistical Tables, B

UREAU OF JUST. STAT. (2016) (discussing

trends in the recorded number of background checks conducted on prospective purchasers of firearms

and the number of gun purchase attempts that are denied due to a background check).

104. See Swanson, supra note 29 (discussing estimates from a nationally representative survey that

approximately nine percent of adults in the United States have impulsive angry behavior problems—

such as a tendency to “break and smash things” when angry—and also have access to firearms).