New York State red flag law upheld by appeals court in key gun case decision
In an important legal test, a midlevel court has upheld New York State’s “red flag law,” which enables authorities to confiscate firearms from a person deemed a potential threat to himself or others.
In a unanimous decision Thursday, the Appellate Division of State Supreme Court said the red flag law is constitutional, rejecting the claims of an Orange County man whose shotguns were confiscated by police after he was accused of pointing a loaded gun at a neighbor during a verbal dispute.
In doing so, the Appellate Division overturned the ruling of a local judge.
Gov. Kathy Hochul hailed the ruling, noting she beefed up the law following the mass shooting at a Buffalo supermarket by a white supremacist. The red flag law allows local officials to issue “extreme risk protection orders” against individuals and confiscate weapons.
The court “reaffirmed the constitutionality of these common-sense laws … keeping our nation-leading gun safety laws intact,” the governor said in a statement.
The case stems from an incident in 2023 in Middletown during which Corey Monroe allegedly pointed a loaded shotgun at a neighbor amid a verbal dispute, according to court documents. Police charged Monroe with third-degree menacing.
Shortly thereafter, a judge on Jan. 20, 2023, issued an extreme risk protection order, or “red flag” order, against Monroe, which allowed police to confiscate two shotguns.
Monroe later sought court remedies to have the order quashed. He claimed the red flag law violated the Second Amendment of the U.S. Constitution, violated various due process protections because no determination about him was made by a mental-health professional, and infringed on his protections against self-incrimination because a red flag law allows police to search his home.
He also said there were no facts to support the claim he was likely to cause harm.
In April, a state Supreme Court judge in Orange County granted Monroe’s request to dismiss the red flag order. That judge has since dismissed every red flag petition brought to him, the Rockland/Westchester Journal News has reported.
But the Appellate Division, in a 4-0 decision, reversed the lower court, said the red flag law is constitutional and reinstated the ERPO against Monroe. In part, the Appellate Division said Monroe could challenge the basis for law enforcement seeking the ERPO — that is, whether he was dangerous — but that he was wrong about the statute’s constitutionality.
Writing for the court, Judge Betsy Barros said New York’s red flag law “imposes a restriction of an individual’s right to own or possess a firearm when there is probable cause to believe that he or she is likely to engage in conduct that would result in serious harm to himself, herself, or others, which is thereafter supported by clear and convincing evidence at a hearing. This regulation is consistent with the nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns.”
Barros noted various state statutes impact a person’s gun rights, including ones that allow courts to revoke gun licenses, order defendants to surrender weapons, or ban individuals from possessing weapons as a condition of release.
Monroe’s attorney said he was disappointed by the ruling and was weighing an appeal to New York’s highest court.
“We continue to stand by the argument that New York’s Red Flag law continues to lack sufficient and constitutionally required procedural protections for people who might find themselves on the receiving end of such an order,” Derek Andrews said in an email. “This is especially true when these proceedings, based on a poorly written statute, risk seizure of firearms for acts of self-defense, which is what occurred in the underlying incident alleged in support of the temporary extreme risk protection order.”
Red flag orders have soared since the 2021 mass shooting in Buffalo — with Suffolk County by far the most active jurisdiction across the state, Newsday previously reported.
The most recent statistics from the state Office of Court Administration show 9,157 orders have been issued in the state over the last four and a half years, with Suffolk accounting for 2,779 — 30%.
That dwarfs the total by Erie, the No. 2 county, which issued 494. Suffolk officials have embraced the law, saying it’s another tool for officers to prevent violent acts.
