After a mass shooting in El Paso, we interviewed Ed Scruggs, president of the board of Texas Gun Sense. Scruggs was the only representative of a gun violence prevention group to participate in a roundtable with Governor Greg Abbot after a school shooting in Santa Fe in 2018, and he also took part in the first of two roundtables held after the 2019 El Paso shooting.
His organization advocates for safe storage laws, universal background checks, and red flag laws – also called extreme risk protective orders.
In an interview, Scruggs reflected on the recent shootings in El Paso, Dallas, and Dayton, Ohio, and discussed possibilities for new legislation to prevent mass shootings or mitigate their impact.
When we talk about red flag laws, what kind of safeguards there are to prevent them from being abused and taking away a gun from a responsible gun owner who is really no threat to anybody?
That’s the biggest concern we hear. Red flag laws are created for an emergency situation: a family member or spouse is threatened, for example, or someone is making threats on the internet and they’re known to own a lot of firearms. So in order to try to head off some of these mass tragedies, or murder-suicides, a family member, or sometimes a police officer, requests a hearing before a judge to make an appeal saying they’re threatened by the statements the person has been making.
The judge then would decide whether there’s a credible threat to investigate and might make an order to hold that individual’s firearms until the situation can be evaluated. Most states have a requirement that there must be another hearing within a week or two, or sometimes just in a matter of days, where that person has the opportunity to make their case and can say, no, they weren’t really serious about it, or that was a false claim, etc.
At that time the judge can say, ‘Okay, you’re okay, you can have your firearm back.’ Or they can say, ‘Do this therapy for six months,’ or, ‘Keep things clean for six months, and then you get them back,’ etc. So there is a legal process involved in all of this. Nothing can happen without the order of a judge – there has to be some credible grounds for the judge to make that ruling.
It already does happen in Texas law in child abuse cases and sometimes in spousal abuse cases where the victim can go before the judge with a complaint, and if it is determined that there is a serious threat, action can be taken. One of the big fears we hear from opponents of red flag laws is that there’s not due process. There is due process, people just need to be educated more on what that process is.
Also, in most cases, if a judge orders an intervention, it’s not a criminal violation, it’s a civil matter. So it’s not something that’s going to be on someone’s record. It’s just like a disagreement – almost like a divorce case – in the sense that these are issues that just need to be settled.
Is there a state where there is such legislation in effect that is a reasonable model for Texas?
I think we’re up to 17 states now that have enacted a red flag law. They vary a lot, for instance, in terms of when the follow-up hearing must take place. The Ohio governor proposed this past week that that hearing has to take place within three days. That’s very quick. In terms of a model that Texas can follow, there are a lot of different elements that you could take from various states to try to create a law that could work for Texas.
After the Walmart shooting in El Paso, there was an incident at another Walmart in Springfield, MO, in which a man wearing body armor and carrying a tactical rifle was held at gunpoint by an off-duty fireman. What can we learn from this incident?
Everyone needs to be smart these days, and use their best judgement, because everyone is on edge. The public is just so terrified right now that if they see someone walking around carrying an assault-style rifle, they’re going to be afraid, and someone will call the police. And of course, you do have the right to carry a long gun, so if folks are trying to do it to get attention, they’re definitely going to get attention – and it may not be the attention they want. So we want to advise against doing things like that.
Police also need to be careful because if they hear there’s a gun involved they’re going to respond to what potentially could happen, because we’ve seen that a quick response is very critical in these mass shooting events. But then they have to get on the scene, assess what’s going on, and then try to calm things down dramatically.
There was a shooting in Dallas recently where the shooter tried to enter a federal building there. What’s your takeaway from that event?
We are so incredibly lucky that that did not end up as a massacre. That is a very textbook case of how a red flag law could have been used. This man was very disturbed. He posted some really awful, horrible, threatening images online. He was shooting targets that looked like people, he was making all kinds of statements about people he wanted to harm, he had videos just showing himself loading and unloading magazines over and over again. Obviously, this person was disturbed and he was trying to get attention for some reason.
If someone had reported that, they could have invoked the red flag to hold his firearms while he was evaluated. And maybe, if that had happened, he would have received the treatment that he so obviously needed and maybe he’d be alive today. We don’t know that for sure, but that’s a case where a red flag law could have worked.
How does the red flag law work – is the person required to get treatment to get their gun back, say?
It’s really kind of up to the judge, it depends on the individual situation. It could be a fight between a husband and wife and maybe the husband made some threats, and the judge could ask him to come in and ask him about the nature of what he said, and he may convince the judge and say, ‘Look, I was just upset, I didn’t mean it, I would never do anything like that.’ If the judge agrees with him he could say, ‘Fine, you can have your gun back today.’
But in cases where there is an obvious mental health issue the judge can order a person as a condition to seek treatment. But it varies by state: some states might require a full-fledged evaluation, some states leave it completely up to the judge.
In the Dayton shooting, what kind of gun was used in that attack?
The best description I’ve heard is that it was an AK-style rifle. The big thing in the Dayton shooting was the size and capability of the magazine that he was using. He had a twin-drum type magazine – each one held 50 rounds. So he had a 100 rounds available, so a massive ability to inflict damage. There were a huge number of rounds shot off in just a few seconds.
Would you advocate for some type of regulation of that type of firearm or magazine?
We think it’s worth asking the question: would limiting magazine size help in these situations? Would it save lives? We haven’t specifically called for policy on that front but I do think it’s important to look at because certainly in Dayton that was a huge factor in so many people being killed or injured in such a short amount of time.
How would you respond to the argument that what we really need to make Texans safer are more ‘good guys’ with guns, not fewer guns?
We’ve never been favorable to that argument because there’s no evidence that we’ve seen that it works. Take the El Paso case: Texas is a concealed carry state, it’s an open carry state, you can have it on your car, even without a license, you can openly carry long guns in public – so really there aren’t a lot of gun-free zones in Texas, and if there ever was going to be a case where good guys with guns could have stopped him, this was one of those cases.
Yet he was so heavily armed. We don’t know whether there were other armed people in the Walmart or not, but it was ultimately police responding to the scene that got him to stop.
Do you think we’re going to see any movement toward greater gun regulation in the coming year or so, or in the next legislative session?
If anything, I would have thought that after the Santa Fe High School shooting we would have seen something happen. There was the possibility of some movement. The governor held roundtables. There were discussions. And it didn’t really happen. Now we have El Paso and he’s going to have roundtable discussions again, and I think there have been people floating ideas.
It is possible we’re going to see some movement. I wouldn’t be surprised if there wasn’t any, but I think it’s important to engage and have conversation and for everyone to come to the table and speak openly and honestly about what might work and what might not work, including potential legislation – perhaps a red flag law.
The governor had talked about it last time, and he didn’t officially support it, although he was intrigued by it, and gave it to the legislature to consider and that was shot down. Maybe we could revisit that again. There have been incidents that have happened since that time that maybe could make people a little more comfortable with it in Texas.
We also can continue working on universal background checks and hopefully we could get some movement on that. Universal background checks are heavily supported across the nation and in the state. You have to really search for reasons not to do it.
Whether or not there are actually new laws enacted, if we can have more conversations that’s always a good thing. It may not be enough, but it’s better than not talking. I think the situation has become so significant and so pressing that we have to talk about it. So the fact that we are going to talk about it is good. Hopefully we can maximize the effect of those talks and do something.
Ed Scruggs was interviewed on Friday, August 8, 2019. The text of this interview has been edited lightly for conciseness and clarity.
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