The Red Flag law has been effective in New York since August 2019, before the Buffalo shooting. The reason behind the enactment of the law is to keep firearms away from individuals who could harm themselves or others. One way to achieve this is by petitioning the court through the Extreme Risk Protective Order (ERPO).
“The Red flag law failed regarding the recent Buffalo mass shooting,” says criminal defense attorney, David Lish of Grand Canyon Law Group. The teenager who displayed a high risk of violent behavior was able to obtain a gun and carry out the mass shooting. With the red flag law in place at the time, this incident raises questions about the effectiveness of the law in New York.
How the Red Flag Law Works in New York
The red flag law intends to keep firearms away from people with a high risk of violent behavior. However, the intent of the red flag law is not to criminalize people. The law allows certain people to petition the court through ERPO to restrict gun access from individuals who may harm themselves or others.
Petitioners under the law include police officers, district lawyers, family members, and school officials. When a petitioner files for an ERPO, the judge will determine whether it is necessary to issue a temporary order on the same day. If the issuance happens the same day, a Police will seize all firearms from the respondent (the individual at risk of hurting others or themselves).
Afterward, the court schedules a hearing within the next three to ten days to determine whether to issue a final ERPO. However, the case closes if there is no issuance of any final ERPO (which lasts for a year). But if there is an issuance of one, the petitioner may return to court 60 days before the ERPO expires and request a renewal.
The Red Flag Law Also Prevents Suicide and Domestic Violence
Aside from preventing mass shootings, red-flag laws also help in preventing suicide. In the absence of Laws like this, a family member does not have many options for stopping any violence that they fear is likely to occur.
The reason is that state laws do not often provide a legal power to restrict access to firearms before a tragedy happens. Suicide is reportedly one of the leading causes of death among American teenagers. Red-flag laws can help ensure that youth do not have easy access to firearms when they are most vulnerable to self-harm.
With this law, people will file an ERPO if they consistently notice certain behaviors or expressions of self-harm. The law also helps in the prevention of potentially fatal domestic violence situations.
The Buffalo Massacre and the Debate Over the Effectiveness of the Red Flag Law
An 18-year-old Payton Gendron carried out a mass shooting at a grocery store in Buffalo, New York, on May 14, 2022. The mass shooting, described as a racially motivated act of domestic terrorism, killed ten people and injured three others. Out of the 13 people Gendron shot, 11 of them were black.
Less than a year before the massacre, the Cops investigated Gendron for making a threatening statement (saying he wanted to commit murder-suicide). The threat made at Susquehanna Valley High School in June 2021 prompted a call to state police and a mental health assessment at a hospital.
Though the Cops investigated a report of suspicious behavior, they considered the threat a general threat and was not specific enough to warrant further action. As a result, there was no ERPO petition to prevent the suspect from purchasing or keeping firearms. The legal purchase of an AR-15-style rifle by Gendron, which the law could have prevented, raises questions about the effectiveness of the law.
Challenges Facing the Application of the Red flag Law in New York
The red flag laws are still new in most states, including New York. Since August 2019, the New York courts have only been able to issue approximately 589 Extreme Risk Protective Orders (ERPO). However, many ERPO supporters claim that the number is far lower than expected.
According to ERPO supporters, the red flag gun law is rarely used in much of New York because few people are aware of the law. Even in Broome County (the home of Grendon, the shooter in Buffalo), the law was hardly in use years after its enactment. Furthermore, another factor contributing to the inefficient application of the law is that law enforcement is still learning the proper use of the law.
If the officers had received more training on the subject, they might have decided to seek an ERPO, thus preventing the Buffalo massacre. In general, a lack of proper training and public awareness concerning the law is causing the inefficient application of the law in New York.
Strategies to Strengthen the Red Flag Law in New York
Following the mass shooting, state Governor Kathy Hochul signed an executive order on May 18, 2022, to strengthen the red flag law. The order requires state police to file an ERPO if they have probable cause to believe that a person may cause harm to themselves or others. The order also stated that the state police should train and instruct their personnel on how to file ERPO.
The Governor also urged the state legislature to pass legislation requiring state police to report guns used in crimes within 24 hours. She also mandates microstamping of semi-automatic pistols sold in New York to enable police to match cartridges at crime scenes to the gun that fired them. The Governor signed a new law prohibiting citizens below the age of 21 from purchasing semi-automatic pistols.
Furthermore, She announced the formation of a domestic terrorism unit within the state police and efforts to investigate social media companies serving as hate-speech platforms. There was also a passage of expanded red-flag law that requires social media companies to report credible violence threats. The goal is to ensure that another mass shooting never happens again in New York.
To achieve the efficient application of the red flag law in New York, creating more public awareness about the existence of this law is essential. Furthermore, training law enforcement and the general public on how the law works will go a long way in preventing further similar Buffalo shootings.
Hemant Kumar is a project manager at Tridindia with more than nine years of commendable experience in writing about LMS, translation, and IT. His unmatched talent and passion for digital marketing gave him the opportunity to work as a multi-tasking project manager at TridIndia’s sister company, Link Building Corp. Today, he contributes to the world by imparting knowledge on SEO, link building and internet marketing etc., that helps business owners grow their online business.