Recent events in New York and other states have drawn attention to a New York state law that was enacted in 2019. The “red flag” law gained more attention a few weeks ago when New York Gov. Kathy Hochul signed an executive order requiring state police to apply for an extreme risk protection order whenever they have probable cause to believe that an individual is a threat to themselves or others.
There are various federal and state laws and regulations which impact a person’s ability to purchase and possess a firearm. The “red flag” law has been used differently in different areas of the state and there is a renewed effort to educate the public on the existence of the statute. Here is some information on how New York’s “red flag” law works.
An Extreme Risk Protection Order is a court order issued to prohibit a person from purchasing or possessing a firearm, rifle or shotgun when that person might be dangerous to themselves or others. An ERPO can direct law enforcement to search a person, premises or vehicle for the purpose of locating firearms and removing them. The application can be made by the district attorney, a police officer, a school official or the member of the person’s family or household. If the application is granted, the order can be effective for one year, and it can be extended longer if a judge grants further relief in a subsequent renewal application. The order can also be vacated or modified depending on various circumstances.
The application must contain sworn statements setting forth facts and circumstances justifying a ban on the person’s right to purchase or possess a firearm, rifle, or shotgun. Allegations that would lead a judge to temporarily ban a person’s ability to possess or purchase a gun are based in common sense. Factors that would be relevant include any threats or acts of violence, the reckless use, display, or brandishing of a firearm, rifle or shotgun, or a recent violation of an order of protection, just to name a few. Age of a person at the time of an occurrence, or the amount of time that has elapsed since a previous occurrence are also relevant factors. Once the application is made, the judge will also order the local law enforcement agency to complete a background check and report the results to the court.
If the judge grants the application, the court must immediately notify the State Police, any other law enforcement agency with jurisdiction, all applicable licensing officers, and the State Division of Criminal Justice Services of the order, and the expiration date of the order. The Division of Criminal Justice Services must then notify the Federal Bureau of Investigation. If an order is amended or vacated, the statute requires the same reporting mechanisms to be promptly followed by the court and the Division of Criminal Justice Services.
It is common to include mental health when discussing red flag laws. Efforts are made not to inappropriately conflate mental illness with violent, threatening, or assaultive behavior. While I would suggest that most people with a mental illness are not violent, threatening, or assaultive, it is largely impossible not to merge those issues because the “red flag” law borrows from the section of Mental Hygiene Law that deals with involuntary retention of patients in psychiatric hospitals. The ERPO statute employs the definition of “likely to engage in conduct that would result in serious harm to himself, herself, or others” of Mental Hygiene Law. Mental Hygiene Law defines “likelihood to result in serious harm” as: 1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself; or, 2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.
An editorial in The Buffalo News recently reported that there have been approximately 600 red flag orders since the law took effect in 2019. The piece opines that it is likely that the new legislation is not sufficiently known or understood for it to be as effective as intended to be. Another article in the news reported that judges have granted 589 one-year bans and 875 temporary bans since the law took effect. Greg B. Smith, a reporter for The City, explained that most of the full-year orders started as temporary orders, so there is an overlap in the number of cases. The article goes on to analyze some of the data, pointing out that Suffolk County accounts for the most ERPO’s issued with 116 full one-year orders and 187 temporary orders. By comparison, according to the article, only one full-year order was granted in the five boroughs of New York City. Brooklyn and Queens have each had two temporary orders issued while no applications have been made at all in the Bronx, Manhattan, and Staten Island.
You might be wondering how many applications have been made in Otsego County since the law took effect. I was able to obtain the number of applications made. There were six applications in 2020, three applications in 2021, and there has been one application in 2022 to date.
New York’s ERPO law is one mechanism that can be used to limit the use of guns by individuals who may be dangerous. It appears that it will be used more with the recent executive order and perhaps with more education and training on process of the ERPO statute.
Susan Lettis is a lawyer in Oneonta.