Colorado Case Study Shows Why ‘Red Flag’ Laws Aren’t the Answer

Mike and Phyllis Foraker may not have set out to show why the “red flag” law in Colorado and in 21 other states is utterly ineffective at stopping the threat from people who are a danger to themselves or others. Heck, for all I know the couple support the state’s Extreme Risk Protection Order statute. But whether they realize it or not, by courageously sharing their story of their son’s battle with mental illness and advocating for greater mental health resources, they’ve struck a blow against the claims of politicians that “red flag” laws are a suitable replacement for actually addressing what makes someone a danger to themselves or others. 

As the Colorado Springs Gazette reports, the Forakers did “everything they could to get their son the help he desperately needed,” but William Foraker still took his life three years ago at the age of 44. 

In the heart-breaking time since William’s passing on Jan. 15, 2023, at age 44, his parents have created a grantmaking foundation in his name, co-authored a book on their family’s journey of what seemed like a descent into hell, and along with other advocates successfully persuaded state lawmakers to make beneficial changes to involuntary confinement, which took effect last year.

The couple’s resolute desire is to turn their experience and insight into optimism for people suffering from serious mental illness and their families and caregivers.

“We also wanted to educate the public about the broader mental health system and begin dialogue to lead people to reimagine the mental health system to be visionary, aspirational and transformative,” Mike said. Phyllis adds accountability and affordability to the list.

“We’re a long way from meeting those goals,” Mike said.

Because for the Forakers and many others the system remains broken.

Mke Foraker told the Gazette that in the 1950s the United States had half-a-million beds for people with mental illness. Those numbers started declining in the 1960s when the idea of de-institutionilizing the mentally ill really took off, and today there are only about 36,000 state-run psychiatric beds across the country. 

“The thought was that many beds would be replaced from the large insane asylums to small, friendly, more thoughtful and caring community-based facilities. Very few of those facilities were built. There’s a phenomenal shortage of short-term and long-term beds.” 

While Colorado has a handful of state-operated psychiatric hospitals, today they are reserved for inmates awaiting determination on their mental competency to proceed with a criminal case.

Consequently, jails and prisons have become de-facto mental institutions, which is not the proper solution, said Patrick Vance, a criminal defense lawyer and friend of the Forakers, who wrote an endorsement in their book.

“Jails and prisons are the worst possible environment for the mentally ill,” he wrote. “Most receive little to no care or inadequate care, resulting in a cycle of incarceration. This dysfunction comes at a high cost to taxpayers.”

And at a high price to the mentally imbalanced.

“Most, but not all, of my clients never received the mental health treatment they needed. A lucky few did, and the changes in their behavior and lives seemed nothing sort of miraculous,” Vance wrote.

So what does this have to do with “red flag” laws? Well, in one sense absolutely nothing. That’s because “red flag” laws typically have no mental health component to them whatsoever. It’s a judge, not a mental health professional, who decides whether or not someone poses a danger to themselves or others, and in the case of ex parte hearings makes that determination without ever talking to the subject of the “red flag” petition at all. 

Once a “red flag” petition is granted, the law doesn’t require the supposedly dangerous person receive mental heath treatment, much less require the state to offer that treatment. Once any legally owned guns have been taken, the state considers the problem solved and the danger diffused. 

Red flag laws are a way for politicians to claim they’re doing “something” to address individuals intent on harming themselves or others, but the truth is that these laws leave dangerous people to their own devices. If someone is truly a threat to themselves or others, they don’t need access to a firearm. They also don’t need access to a halt-ton pickup truck, butcher knives, gasoline, matches, or anything else they could use as a weapon. 

Colorado is still woefully short on beds for people suffering from an acute mental health crisis, but the Foraker’s advocacy has led to at least one change in Colorado law: relatives can now petition a judge to order a psychiatric evaluation of an adult in crisis. Parents have been able to file for Extreme Risk Protection Orders since Colorado first implemented the law, but only now are lawmakers making it possible for the parents of mentally ill adults to get them evaluated by a mental health professional. 

But Colorado law still doesn’t allow parents like the Forakers to make decisions about treatment once their kids reach the age of 18, and Colorado’s state-run facilities are so crowded with those in the criminal justice system that even if a psychiatric evaluation shows someone is in need of hospitalization, there’s no guarantee that it will happen. 

I commend the Forakers for sharing their family’s story with others, as painful as it might be, and I share their concerns with the broken mental health systems found in most states across the nation. 

Building more hospital beds and increasing staff costs money, and I don’t think we really want to return to the 1950s, where many of those 500,000 beds were occupied by individuals who were just warehoused for decades instead of being treated with a goal of safely assimilating back into society. We don’t need a reboot of One Flew Over the Cuckoo’s Nest, but at the same time what we’re doing now clearly isn’t working. We have a mental health crisis in this country, and it cannot ever be solved through the adoption and enforcement of “red flag” laws. 

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