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
California Using Tax Dollars to Racially Profile Gun Owners

News  

Monday, August 15, 2022

California Using Tax Dollars to Racially Profile Gun Owners

California gun owners have been under siege for the past year - even by the not-so-Golden State’s standards. In September 2021, Governor Gavin Newsom (D) signed AB-173, which allows for the disclosure of highly sensitive ...

Canada’s Liberals Bypass Parliament to Further Gun Control Agenda

News  

Monday, August 15, 2022

Canada’s Liberals Bypass Parliament to Further Gun Control Agenda

Earlier this year, Prime Minister Justin Trudeau’s government introduced Bill C-21, proposing a permanent freeze on the sale, transfer and import of handguns in Canada. The bill remains at the initial stages and did not pass prior to ...

California: Appropriations Committees Pass Anti-Gun Bills to Floor

Friday, August 12, 2022

California: Appropriations Committees Pass Anti-Gun Bills to Floor

Yesterday, the Appropriations Committees of both chambers considered bills previously placed on the suspense file. SB 505, which would have required gun owners to carry insurance and held them strictly civilly liable, was held in committee, while the ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Supreme Court Signals It May Rein In Federal Rulemakers

News  

Monday, August 8, 2022

Supreme Court Signals It May Rein In Federal Rulemakers

While most of the attention from the end of the United States Supreme Court’s last term focused on several landmark cases, including a major win for gun owners in the NRA-supported case New York State Rifle ...

Oregon: Faulty Gun Control Ballot Measure Summary Approved

Friday, August 12, 2022

Oregon: Faulty Gun Control Ballot Measure Summary Approved

This week, the Explanatory Statement Committee approved Ballot Measure 114’s (formerly IP 17) summary that will appear in the voter pamphlet.

Another Good Guy with a Gun Stops the Bad Guy

News  

Monday, July 25, 2022

Another Good Guy with a Gun Stops the Bad Guy

On July 19, 22-year-old Elisjsha Dicken was shopping with his girlfriend at the Greenwood Park Mall in Greenwood, Ind. when a gunman armed with a rifle opened fire in the food court. Upon witnessing the ...

When Seconds Count, the Police are Only Hours Away

News  

Monday, August 8, 2022

When Seconds Count, the Police are Only Hours Away

After violent unrest and looting in 2020 that Chicago mayor Lori Lightfoot admitted had “spread like wildfire” throughout parts of Chicago, the mayor nonetheless “urged Chicagoans not to take matters into their own hands in this concealed ...

Illinois: Naperville Considering Banning Many Firearm & Magazine Sales

Monday, July 18, 2022

Illinois: Naperville Considering Banning Many Firearm & Magazine Sales

Tomorrow, at 7:00 P.M., the Naperville City Council will consider File 22-0848, to ban commercial sales of many commonly-owned firearms and standard capacity magazines. NRA Members and Second Amendment supporters are invited to ask the Council ...

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

News  

Friday, April 1, 2022

NRA Achieves Historical Milestone as 25 States Recognize Constitutional Carry

Half the country will now enjoy the freedom to carry a handgun for self-defense without a permit from the state thanks to the tireless efforts of men and women of the National Rifle Association. 

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.