Advocates of such a change — commonly referred to as a “red flag” law — have tried in vain to pass legislation in Frankfort over the past four sessions. They say the law could help prevent murders and suicides if a judge can order someone to have their guns taken away.
Most of the Republican supermajority in Frankfort has been unreceptive to such a law based on Second Amendment concerns, but the proposal was presented to the interim judiciary committee by Sen. Whitney Westerfield, the Republican chair of the committee from Crofton.
Westerfield said he would continue pushing the bill because of mass shootings where the killer had previously documented mental health issues, citing mass shooting at Louisville’s Old National Bank in April that killed five people. Maryanne Elliott, whose husband Tommy was killed in that shooting, sat behind the senator as he testified.
Noting that some of his GOP colleagues would never support such a bill, Westerfield said “I feel compelled to try.”
Also testifying was Whitney Austin, who recounted being shot 12 times in a mass shooting at her workplace in 2018. She has since become an advocate across the country for Crisis Aversion and Right Retention (CARR) laws.
“It is time for those — perhaps some in this room — with a tendency to say ‘no’ or ‘never,’ even before fully understanding all of the options, to think about how we, the collective, can help save those innocent lives,” Austin said.
Austin also shared that the majority of gun-related deaths in Kentucky are suicides — 534 in 2021 — and that the majority of all suicides are committed with a gun. She added that suicides by gun are more prevalent in rural parts of the state.
Questions remain over timing of judicial hearing in bill
Westerfield did not present a draft of a bill, but walked through two possible versions he would file when the legislative session kicks off in January.
Previous bills allowed family members to directly petition a judge for a hearing where the subject of the order would not be present, but Westerfield said the bill would change this process in two potential ways.
Instead, a petitioner would be required to first go to law enforcement, instead of a judge. If law enforcement agreed with the need for an order, they would then go to the subject and present an option: turn over your guns now, or make your case for why you should keep them in a hearing before a judge.
Where the senator’s two proposals differ is on when that hypothetical hearing would take place.
While he believes the safest option would be to hold the hearing within two hours — averting what could be an imminent crisis — Westerfield said he received criticism from those in the justice system that this is too short a time period. A second version of the bill would have the hearing take place a week later, though there is concern this could provoke a violent reaction from the subject.
It’s not yet clear who would be able to request that law enforcement seek an order under the legislation. Past versions of the bill, and laws in other states, restrict who can make a request to law enforcement or family members, but Westerfield noted that extending this to co-workers and friends may be more effective to prevent tragedies.
Republicans critical of proposal, though some on board
Westfield’s proposal received strong pushback from several Republicans on the committee, including Rep. Savannah Maddox of Dry Ridge, a vocal opponent of red flag laws who said in the hearing Friday “gun control is not and has never been the answer.”
“Whether you call it a red flag, whether you call it an ERPO, whether you call it CARR or any other euphemism, you're still talking about a proposal that at a bare minimum has the potential to violate at least three constitutional rights,” Maddox said, “In addition to due process and the presumption of innocence, which is a principle that is deeply enshrined in our American legal system.”
Maddox added that if legislators want to address mass shootings, they should do away with “gun free zones” where people can’t defend themselves, claiming killers specifically target such areas.
Rep. Steve Rawlings, a Republican from Burlington, said he did not trust judges to issue such orders and feared groups of people would be targeted. Sen. John Schickel, a Republican from Union, said Frankfort has been pushing a “soft-on-crime agenda,” but this would go after people who had not been convicted of any crime.
Westerfield countered the constitutional arguments against the bill, and said he’s open to receiving any constructive input from Republicans who want to address the intersection of mental health and guns.
“The law has to allow us to protect people in a way that honors the Constitution, but protects people at the same time,” Westerfield said. “It's not an unlimited right.”
Other Republicans pointed to another state law that allows people to be involuntarily hospitalized for mental illness, but Westerfield said this new law could act as an intermediate step that was less severe.
There is at least some Republican support for the proposal beyond Westerfield.
Among the letters of support for the CARR proposal is Mac Brown, who just ended serving as chair of the Republican Party of Kentucky for the past eight years.
“I do not see CARR as legislation that takes away our right, but rather one that protects our right, the right to Life,” Brown stated in documents filed with the committee. “I ask that the members of this joint committee and the remaining members of the House and Senate seriously consider the ramifications of the problem mental health is causing society and pass this bill.”
Also testifying for the CARR proposal was Jeffersonville Police Chief Rick Sanders who served as commissioner of the Kentucky State Police under former Gov. Matt Bevin.
Several Democratic legislators also spoke passionately for the bill including Sen. Karen Berg of Louisville who shared that her son had committed suicide exactly one year ago. Berg said she regularly attends a survivors of suicide group with parents of children who used a gun to kill themselves.
Rep. Lindsey Burke of Lexington shared that she attempted suicide in college after a mental health crisis.
“By the grace of God I lived,” Burke said. “If I had tried with a firearm, I would not be here today, I would not have my family.”
After the hearing, Westerfield acknowledged that it will be tough to gain majority support for the measure within the GOP caucuses of each chamber — where Republicans hold 80% of the seats — but said there are colleagues in both who favor it.
“I think there's more support for it than you're hearing,” said Westerfield, who is not running for reelection next year. “I think the voices that are opposed to it are louder than the rest.”
