Cases soared in New York, but constitutionality questioned

ALBANY, NY — The use of the red flag law in New York has surged over the past year to allow judges to confiscate weapons from people they deem dangerous.

The rise in cases, according to prosecutors and elected officials, has helped quell gun violence in New York after an alarming spike during the Covid-19 pandemic.

With an expanded law and more attention to it, the growth in cases has been extraordinary after it was barely used when it was first passed in 2019. In 2021, there were 538 extreme risk protection orders issued. A year later, the number soared to 4,257, and already through early April of this year there were 2,743, according to records from the state Office of Court Administration.

“Red flag allows us not to solve a crime after the fact but to prevent the crime,” Gov. Kathy Hochul said recently, touting the success of the program.

Hochul and some criminal justice officials point to a correlation between the law and a drop in major crimes. Shootings in New York went down by 17 percent in New York City and by 15 percent outside of New York City between 2021 and 2022. Murders were down 11 percent statewide over the same stretch.

“If you identify these people (mass shooters) beforehand and can take away their weapons, clearly I believe that’s going to make your community safer,” Erie County District Attorney John Flynn said in an interview.

New York is one of 19 states and Washington, DC, which has adopted the red flag laws, and Michigan is poised to do so soon. But the law in New York and other states is not without controversy: Gun-rights groups have opposed it, and there’s a court fight in New York over its use.

In 2019, then-Gov. Andrew Cuomo and the state Legislature passed the Extreme Risk Protection Order law in New York. Also known by its abbreviation “ERPO,” the law is designed to prevent gun crimes by temporarily restricting individuals considered dangerous to themselves or others from access to any firearm.

Family and household members, district attorneys, law enforcement officers and school administrators have the right to petition for a temporary order if they fear a person’s behavior and know or suspect the individual could own or possess guns.

If the court accepts the petition, the guns are removed from the individual’s home, and the order is added to the background check system to bar gun purchases.

Between three and 10 days from the issue of the temporary order, the court holds a hearing in which evidence is taken into consideration, and it determines whether the person poses a serious threat of violence. During the process, the individual deemed dangerous can challenge the petition.

If the judge rules are in favor of the petitioner, a final order is issued and held in place for up to one year.

According to court data obtained by POLITICO from 2019 to 2021, the use of the red flag law was rare in New York. For example, in the five boroughs of New York City, only nine people were issued one-year orders.

But a mass shooting at a Buffalo supermarket that killed 10 people last May seemed to help change the trend. Hochul and the state Legislature last summer passed legislation and issued executive orders to strengthen the petition process of the red flag law.

The red-flag law was also strengthened in the wake of a US Supreme Court ruling that tossed New York’s century-old law that limited which could have a concealed carry permit, raising additional concerns about gun violence.

The change made it mandatory for prosecutors and police to petition for an order whenever they determine it is likely that an individual could be dangerous. Also, Hochul expanded who may file a petition to include health care practitioners, and he required additional training for law enforcement regarding the red flag law.

It has led cases to soar.

“The numbers skyrocketed,” Flynn said. The number of red-flag orders issued in Erie County, where the Buffalo shooting occurred, increased from five people in 2019 to 82 so far this year.

Flynn said the increase is related to two main factors: the mandatory aspect of law enforcement to make a petition and, most of all, the increase in awareness and knowledge about the red flag law. In the Buffalo case, the shooter had written racist and violent messages online, but the law was not used to potentially preempt his attack,

“We had a mass tragedy here in Buffalo, … and then four days later, the governor issued an executive order, and that gave it publicity,” Flynn said. “Beforehand, I just thought that it wasn’t known widely enough.”

Experts said public attention about red flag laws can fuel people and law enforcement filing petitions.

“We see that (behavior) occasionally in states that have an extreme risk reduction order, but it wasn’t used. Then a high profile shooting happens, and people question why it wasn’t used,” Lisa Geller, director of state affairs for the Johns Hopkins Center for Gun Violence Solutions and co-director of Johns Hopkins ERPO Resource Center, said in an interview.

“Extreme risk protection order laws were in the news quite a bit after the Buffalo shooting, and so people found out about them and realized that they might be useful in certain circumstances to prevent violence,” Geller added.

Question of constitutionality

The future of the law, however, remains uncertain.

Two New York State Supreme Court judges — Thomas Moran in Monroe County and Craig Stephen Brown in Orange County — ruled in separate red flag cases this year that the law is unconstitutional because it does not provide due process for the plaintiffs.

“New York’s Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms,” ​​Brown wrote in his decision April 4.

Brown argued that before issuing an extreme risk protection order, the court needed input from a medical or mental health expert to confirm that a person is likely to engage in conduct that would seriously harm themselves or others.

Orange County District Attorney David Hoovler, a Republican, agreed with Brown’s decision, even though the case was being appealed by the state.

“His decision was very succinctly worded and very concise,” Hoovler said in an interview. “He doesn’t attack it (the legislature). … He attacks it, saying procedurally, ‘If you’re going to take someone’s rights away and take their weapons away, you need somebody saying they’re a danger other than a police officer or a lay person.’”

Rebecca Fischer, executive director of New Yorkers Against Gun Violence, doesn’t agree with the two Supreme Court judges’ interpretation of the law.

“We strongly believe that an appeals court will strike that ruling down in large part because there is a due process as a part of this procedure,” Fischer said. “An individual who’s in crisis doesn’t necessarily need a mental health diagnosis in order to be shown to be violent.”

Tim Carey, a law and policy adviser at the Johns Hopkins University Center for Gun Violence Solutions, also thinks Brown’s ruling will not put in peril New York’s law.

“Both the Monroe and Orange County opinions hinged their decision on the fact that New York’s ERPO law uses similar language as New York’s mental hygiene law, but (ERPO) doesn’t require a qualified medical professional to diagnose the respondent before an order can be Granted,” Carey said in an interview.

“Only the mental hygiene law required a finding of mental illness from a qualified medical professional. ERPO, however, does not require a finding of mental illness to be applied,” he said.

Red flag law advocates also emphasized that obtaining a final order to confiscate weapons requires the judge’s approval and entitles the respondent to challenge the petition.

“I think this law strikes a perfect balance of reasonableness,” said Flynn, the Erie County district attorney.

Red flag law’s effectiveness

Some red flag law experts said it’s too early to say that the law has directly fueled the state’s recent decline in gun violence.

“It’s also difficult to assess a drop or a rise in gun violence to one policy alone because we know that there are so many policies at play,” Geller said.

“A state like New York is passing other gun violence prevention policies. At the same time, a state like Florida, which also has an extreme risk protection order, is passing legislation that would make gun violence more pervasive. So it’s really challenging at this stage to assess an increase or decrease tied solely to the extreme risk protection order,” he said.

But research done in other US states — including California — has shown extreme risk protection orders helped prevent suicide, mass shootings and domestic violence.

“I think it’s important to continue to trust the implementation in New York State so that we can get good data to show that it’s also having an effect here,” Fischer said.

William Fitzpatrick, the Onondaga County district attorney, has no doubts about the safety improvements brought to New York by the red flag law.

“Just this past week, we had a young man — 20 years old — he was in some obscure chat room somewhere and had made references he was going to shoot at a local top store,” Fitzpatrick said in an interview with POLITICO. Through a red flag order, they took the guns he had access to away from him.

But Hoovler, in Orange County, thinks that some aspects of the law have to be improved.

“We’re already months and years into this, and now we’re running into these issues (judges’ rulings that the red flag law is unconstitutional),” he said.

“These things need to be thought about when they’re being drafted and to be put together rather than being thrown together so quickly.” Hoovler continued. “I think that in the original process of drafting it and creating it, law enforcement is needed to be consulted a little bit more.”

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