ALBANY — The horror of the racist mass shooting in Buffalo this month — and other killings nationwide over more than 20 years — has often been followed by revelations that a suspect had left clues long before pulling a trigger. Those clues are supposed to be caught under “red flag laws,” which provide a way for relatives, teachers and others to sound an alarm to keep firearms away from those who are a threat to themselves or others.
But supporters and researchers question whether New York State’s Red Flag Law is being implemented as often as it should, and data shows uneven use around the state.
Last year the Legislature bolstered the law with the extreme risk protection order measure, but several proposals would do more, and experts say there are still more ways to better protect the public.
The concerns have heightened since the shooting at a Tops supermarket in Buffalo on May 14 that left 10 people dead and three injured. The suspect in the shooting in a Black neighborhood had been evaluated under the law last spring after he made a violent comment, but he was released back to his home and school without any restrictions on his access to firearms.
And although no motive has yet emerged in Tuesday's mass shooting at Robb Elementary School in Uvalde, Texas, the tragedy again has prompted calls for what supporters call common-sense gun measures, including red flag laws.
What is the Red Flag Law?
New York’s Red Flag Law passed in 2019, and the extreme risk protection order law was passed last year to strengthen it. Together they allow people, including family members and teachers and school administrators who hear or see threats of violence from an individual, to begin a process to get the subject evaluated by mental health professionals. A judge can then weigh evidence and potentially order the person to turn over firearms temporarily and prevent further purchases of firearms as they get help.
The indicators before mass shooters act are called “leakage,” and they are common and too often unheeded, said Jaclyn Schildkraut, associate professor of criminal justice at SUNY Oswego.
“Most mass shooters have been found to engage in this process of leakage, and oftentimes, at least one person knows, if not more. Whether those individuals believe the threats to be credible and report them to law enforcement for further investigation is another story.”
How does the law work?
The state says people may seek, through a process called petitioning, an extreme risk protection order against subjects if they are legally married to or divorced from the subject; have a child with the subject, including adopted children; are related by marriage, such as an in-law; are related by blood, such as a sibling, parent or cousin; are unrelated but lived with the subjects; are unrelated but have or has had an intimate relationship, including same-sex couples and teenagers who are dating; or are school officials, such as an administrator, teacher, guidance counselor, school psychologist, school nurse or coach. In addition, a police officer or district attorney also may seek an order.
A person must seek an order in state Supreme Court, located in every county. A judge will decide on the application for a temporary order the same day it is sought. A hearing date is then set soon to determine if a longer-term order, for up to a year, is needed.
The process is under civil law, so there are no criminal penalties involved.
An extreme risk protection order augments the law by providing a speedier process for action by a judge as well as expanding the number of people who could initiate the process.
Gov. Kathy Hochul has signed an executive order to require State Police to file for an extreme risk protection order “when they believe that an individual is a threat to himself, herself or others.”
How often is the process used?
From Aug. 25, 2019, to May 16, 2022, judges issued 875 temporary orders of protection that resulted in 589 orders of protection for up to a year. The state Office of Court Administration doesn’t track the number of subjects of the orders, and more than one order can be made against a single person. Suffolk County led the state with 187 temporary orders and 116 longer-term orders. Nassau County issued 24 temporary orders and 14 longer orders.
Statewide, 32 of 62 counties each issued fewer than 10 temporary orders. Schuyler and Sullivan counties and Brooklyn (Kings County) issued no longer-term orders, the data shows.
“The problem, we know now, is that nobody knows about it,” said Assemb. Amy Paulin (D-Scarsdale), the Assembly sponsor of the extreme protection order bill.
What is the conflict?
While supporters say the Red Flag Law protects the public by trying to stop mass shootings before they happen, critics say the law takes away from law-abiding gun owners the U.S. Constitution's right to own firearms.
Rep. Lee Zeldin (R-Shirley), who is one of the Republicans running for governor, said he opposes the Red Flag Law because he feels it could be a "very slippery slope" to target law-abiding gun owners.
But some prominent researchers in the field disagree.
Red flag laws "are designed to temporarily remove firearms from individuals who have a heightened risk of harming themselves or others,” said Schildkraut of SUNY Oswego. “It is not a mechanism to just take people’s guns away without cause but to protect law-abiding gun owners and non-gun owners alike from the danger of firearm violence when there are factors that increase the likelihood of such harm.”
Most Republicans in Albany voted against the Red Flag Law and the extreme risk protection orders, although the measures drew far less criticism than other gun-control measures, such as banning assault weapons, "bump stocks" that helped speed shooting and high-capacity clips for ammunition.
How might the Red Flag Law be improved?
"Red Flag laws make sense conceptually, and there is good scientific evidence that they are saving some lives,” said David Hemenway, a health policy professor at the Harvard Injury Control Research Center who has studied ways to reduce mass shootings. “There are also lots of indications that they could work better … many relevant people do not know they exist.”
State Sen. Pete Harckham (D-Peekskill) said other proposals would provide more information to the public and mental health facilities about how to seek an extreme risk order and another would alert spouses and family members when a person leaves counseling under the Red Flag Law.
On Wednesday, Hochul said she will push for requiring every police agency to use the Red Flag Law if they have a concern that a subject may be a danger. She already had directed state police to use the Red Flag Law when they see any concern.
But she said others, including the public and school officials, need to be trained on what to look for when they suspect there is a concern.
“The whole idea behind the Red Flag Law is you are asking people to make a judgment based on their experiences,” Hochul said. “But they don’t have the training. How do they know? … We will provide those services.”
A pending Pauling-Harckham bill that could get a floor vote as soon as next week would require police to temporarily seize firearms in plain sight during a domestic violence call. The bill also would void firearm permits for anyone arrested in the incident until the case gets to court.
Another proposal would empower police to seize firearms if the subject of a domestic violence incident refuses to voluntarily surrender his or her guns temporarily as required under a court's order of protection for a spouse or other household member.
In addition, state Republican Assembly leader Will Barclay of Pulaski last week called for the state’s Domestic Terrorism Task Force — which was created in 2020 but has never met — to convene to better assess and prevent attacks.
Harckham said another idea now being proposed in Albany is based on a Washington state law that adds “a history of hate-filled threats” to factors that can be considered in enacting that state’s Red Flag Law.
Still, Harckham warned that any new measures shouldn’t contribute to a stigma for the millions of New Yorkers who suffer mental health issues but pose no threat. He said people suffering mental illness are far more likely to be victims of crime than perpetrators and shouldn’t be dissuaded from care.
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