Explore The NRA Universe Of Websites

APPEARS IN News

“Significant” Problems with NY Red Flag Law

Monday, July 18, 2022

“Significant” Problems with NY Red Flag Law

As New York officials prepare to defend that state’s new and almost certainly unconstitutional gun licensing law, the president of the state’s bar association has called attention to “significant deficiencies” in another law, the “extreme risk protection order” (a.k.a. “red flag”) law.

New York’s “extreme risk protection order” law, enacted in 2019, allows a court to issue a civil order that prohibits a person from acquiring or possessing guns, and directing law enforcement to search for and seize guns from anyone subject to an order. Any relative (regardless of the relationship); past or current spouse, cohabitant or dating partner; school administrator; treating healthcare professional; district attorney or police officer is automatically qualified to seek an order based on allegations that an individual poses a potential, future risk of harm. The grounds for issuance of an order include “evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor,” even if the acquisition is entirely compliant with the law. In the case of an ex parte application, the targeted individual is not entitled to advance notice of either the application or the allegations, and has no right to attend the hearing, be represented by counsel, and respond before the order is issued.

The ex parte hearing considers only the “facts and circumstances” alleged by the petitioner, with no requirement for medical, psychiatric or other expert evidence. An individual’s first inkling that an ex parte order has been issued is likely to be the presence of law enforcement officers coming to serve the order, search the premises, and seize all guns – which exposes the individual to criminal prosecution if, for instance, their gun storage or paperwork is in any way deficient. With ex parte orders, by the time the judicial process affords the individual a hearing and opportunity to respond, their lawfully owned property has been confiscated by the government and the damage to their rights, reputation, and privacy has been done.

While everyone can agree that truly dangerous people should not have access to firearms, for years the NRA has flagged concerns over how most of these laws are written. It’s not just the lack of fundamental fairness and due process protections, the vague language, and the weak or irrelevant evidentiary requirements, but the potential for abuse and how “these laws allow not just speculation but outright prejudice, bias, ignorance, inexperience, malice, and resentment to influence the rights, reputation, and safety of innocent people.”

It is refreshing, then, to read the article by attorney Sherry Levin Wallach, the president of the New York State Bar Association, asserting that New York’s red flag law is “confusing, overly complex and riddled with loopholes that failed to allow for basic constitutional protections,” and that recent executive actions have “failed to address the problems inherent in” the “flawed” statute.

The “significant deficiencies” she lists include due process, privacy, constitutional, and right to counsel concerns that were identified in a 2020 report by the New York State Bar Association, “most of which have yet to be addressed.” New York’s law, she notes, “requires judges to make rulings regarding a person’s mental state without requiring a professional psychiatric evaluation, and forces individuals to represent themselves if they can’t afford an attorney or don’t understand the necessity for counsel.”

Despite these unaddressed concerns, judges in the Empire State have reportedly issued 875 ex parte orders and 589 one-year orders since the enactment of the law (one-year orders may be issued with or without an initial temporary order, so these don’t necessarily represent total cases). Contrary to expectations, in New York City (where an “estimated 22% of all gun arrests involve a previously convicted felon, and 60% of all gun arrests involve suspects with open felonies”), the red flag law isn’t being used to keep guns out of the hands of known repeat offenders: “only one full-year [order] has been approved in all five boroughs – in Queens, which has also seen three temporary bans.”

Lately, the number of applications by state police officers has “surged” following Gov. Kathy Hochul’s May 18 executive order. This mandates that state troopers file for an ex parte order in all cases where they have probable cause to believe an individual “is likely to engage in conduct” that would result in harm.

In an indication of fresh problems, a newspaper reports that many of these cases have been thrown out by judges because the designated petitioners are unable to sustain or substantiate the claims: the “troopers and investigators filing the complicated applications with courts are often appearing at the hearings without attorneys and in proceedings in which they have been instructed by the State Police to not make legal arguments.” According to the newspaper, a state court judge who notified government officials that law enforcement officers lacked the training to pursue applications in red flag cases was advised that the attorney general’s office was not going to represent troopers in these proceedings. After the newspaper report was published, state Attorney General Letitia James’ office “reversed course” and as of late June, was working to address the issue of representation “in the long term.” 

There’s no sign at all, though, that New York’s government officials are interested in resolving (or even acknowledging) the fundamental defects of the red flag law. In common with the state’s latest rushed-through gun licensing law, the object is arguably not so much the safeguarding of public welfare as it is hijacking “violence reduction” to justify egregious violations of constitutional rights and the pursuit of a radical gun control agenda.

TRENDING NOW
Louisiana: House Passes Constitutional Carry, Now Headed to Gov. Landry’s Desk for His Signature

Wednesday, February 28, 2024

Louisiana: House Passes Constitutional Carry, Now Headed to Gov. Landry’s Desk for His Signature

Today, the House voted 75-28 to pass Senate Bill 1, the NRA-backed constitutional carry legislation that passed the Senate last week.

Washington: Two Anti-Gun Bills Advance Through the Legislature

Wednesday, February 28, 2024

Washington: Two Anti-Gun Bills Advance Through the Legislature

On Tuesday, February 27th, HB 2118, the “FFL Killer” passed the Senate, and SB 5444, "sensitive places" expansion, passed the House. Both bills were amended in the second chamber and now must return to their ...

Minnesota: Two Anti Gun Bills Scheduled to be Heard in Committee

Wednesday, February 28, 2024

Minnesota: Two Anti Gun Bills Scheduled to be Heard in Committee

On Thursday February 28th at 10:30 am, House File 601 and House File 4300 will be heard in Room 200 of the State Office Building by the Public Safety Finance and Policy Committee and the Children and ...

Colorado: Anti-Gun Bills Continue to Move through the State Legislature

Thursday, February 29, 2024

Colorado: Anti-Gun Bills Continue to Move through the State Legislature

Two anti-gun bills continue to move in the Colorado State Legislature. HB24-1174, introduced by Majority Leader Monica Duran (D-HD 23),  is set to be heard next week in the House Finance Committee. HB24-1310 , introduced by ...

Maine: PETITION: Stand with Maine Gun Retailers

Monday, February 26, 2024

Maine: PETITION: Stand with Maine Gun Retailers

Gun Control groups are launching an all-out assault on the Second Amendment in Maine. Their most recent tactic?

South Dakota: Enhanced Conceal Carry Legislation Headed to Governor Noem's Desk

Thursday, February 29, 2024

South Dakota: Enhanced Conceal Carry Legislation Headed to Governor Noem's Desk

On February 27th, Senate Bill 203 received final passage on the House floor on a vote of 62-8. The legislation will now head to Governor Noem's desk for her consideration.

Michigan: “Gun-Free Zone” Legislation Passed in the Senate

Thursday, February 29, 2024

Michigan: “Gun-Free Zone” Legislation Passed in the Senate

House Bill 4127 and House Bill 4128, legislation that would restrict law-abiding gun owners in and around polling places, which includes ballot drop boxes, passed out of the Senate will be sent back to the House ...

Ohio: Gun Owner Credit Card Privacy Bill Passes the Senate

Thursday, February 29, 2024

Ohio: Gun Owner Credit Card Privacy Bill Passes the Senate

Yesterday, the Senate Veterans and Public Safety Committee passed Senate Bill 148, The Second Amendment Privacy Act. The bill was quickly sent to the Senate floor where it passed by a vote of 25-7. This ...

Oklahoma: Pro-Gun Constitutional Amendment Strengthening the Right to Keep and Bear Arms Passes Committee

Wednesday, February 28, 2024

Oklahoma: Pro-Gun Constitutional Amendment Strengthening the Right to Keep and Bear Arms Passes Committee

Yesterday, House Joint Resolution 1034, a joint resolution proposing to amend the Oklahoma constitution to provide further protections for the right to keep and bear arms, was passed by the House Rules Committee and is ...

Maine: Gun Registries, Red Flags, Universal Background Checks and more.

Tuesday, February 27, 2024

Maine: Gun Registries, Red Flags, Universal Background Checks and more.

It has been a busy week for Maine’s anti-gun politicians. From releasing a new bill that would implement Universal Background Checks and Red Flag laws in Maine, to Rep. Jared Golden (ME-02) pushing for a ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.