Local law-enforcement officials say the state’s new red-flag law will give the public a valuable tool to prevent mass shootings by getting guns out of the hands of potentially dangerous people. But gun-rights advocates worry that the law will deprive law abiding gun owners of due process and leave them vulnerable to abuse or harassment.
A red-flag law, also known as the extreme risk protection order law, allows law-enforcement officials, family and household members or school administrators to petition a court to seize firearms from, and prohibit gun purchases by people deemed to be at risk of causing serious harm to themselves or others.
Proponents of the law say that it has the potential to avert mass shootings as well as more run of the mill tragedies like domestic violence homicides and gun suicides. “In all of these mass shootings, somebody knew that there was something not right with [the shooter],” said Ulster County sheriff Juan Figueroa. “And that person didn’t pick up the phone.”
Under the new state red-flag law, an eligible individual can submit a petition to a court seeking to have guns removed from the possession of an individual deemed to be a risk. The person seeking the order must provide evidence to establish probable cause that the intended subject poses a real risk to themselves or others. If a judge is persuaded, police will go to the subject’s home and remove any weapons.
The order also serves as a search warrant allowing police to go through the subject’s residence and possessions seeking hidden firearms. The initial petition and seizure process can occur without the subject’s knowledge.
At a second hearing held within three to six days of the seizure, the subject can contest the court’s action. At the second hearing, a judge a must use the more stringent legal standard of “clear and convincing evidence” to determine whether the extreme risk protection order is warranted.
If the order is issued, it will remain in effect for up to a year. In addition to police retaining possession of seized firearms, the order prohibits the subject from purchasing new guns as long as it remains in effect.
Ulster County executive Pat Ryan and Figueroa have embraced the new legislation. At a press conference last month, Ryan announced a countywide initiative to educate law enforcement and school administrators about the legislation and coordinate distribution of forms needed to seek the court order.
In Kingston, police chief Egidio Tinti said that he had already met with senior staff to discuss implementing the new law. He expected rank-and-file officers to receive guidance on the legislation soon.
Tinti noted that police have always had the power to remove firearms from a home under the state’s mental-health laws. He said the new legislation would allow family members and school officials to apply directly to a court rather than having to call police.
For cops, meanwhile, Tinti said the red-flag law would provide a more streamlined and well-defined process for getting guns out of the hands of potentially unstable individuals. “For us, it’s always better to be safe than sorry,” said Tinti. “Anytime we see the potential for harm, we are going to secure those weapons.”
Ulster County senior district attorney Mike Kavanagh said that he believed the red-flag law would help law enforcement to prevent gun violence. Kavanagh cited a 2018 incident involving then-Saugerties High School senior Connor Chargois as an example of the law’s usefulness. Police were alerted after Chargois, 18, made alarming posts on social media expressing admiration for the perpetrators of the 1999 Columbine High School massacre.
Kavanagh said that the posts, while frightening, did not constitute a crime or probable cause for cops to search his residence and seize firearms. Chargois was at liberty, and attending school for six days before Saugerties police were able to develop enough evidence to obtain a search warrant. That warrant turned up a number of firearms, including an AR-15 rifle and an Uzi submachine gun that Chargois had illegally modified for fully automatic fire. Chargois was eventually convicted on weapons charges and sentenced to two years in state prison.
Had the red-flag law been in effect at the time, Kavanagh said, police would have been able to intervene earlier. “We had to build an investigation before we could do anything and that definitely led to some tense moments,” said Kavanagh, who plans to hold a training session for Ulster County school superintendents later this month. “This law would have enabled us to act much quicker.”
Concerns about abuse
Gun-rights groups, including the NRA and the New York Rifle and Pistol Association, lobbied against the new law, calling it an encroachment on second amendment rights. Critics say that the law violates gun owners’ due-process rights by allowing a court to seize their weapons before they have a chance to confront their accuser in court or contest the evidence against them.
“If you’re arrested for a crime and the police seize your guns, there’s some due process there,” said Dave Davies, president of the Federated Sportsman’s Clubs of Ulster County. “But this law just opens the door for the general public to say, ‘I’m scared of this guy’ and police will come and seize your property.”
Davies said that the potential for abuse or misuse of the red flag was especially concerning given the polarization over the issue of guns and many people’s kneejerk fear of firearms in any and all contexts. Davies said that he was worried that a student’s offhand remark about hunting or target shooting could lead to a red-flag petition by school administrators with little or no understanding of the situation.
“There are people out there who don’t know anything about guns,” said Davis. “They just think guns are bad.”
Though Kavanagh supports the new law, he admitted that he and others in law enforcement had concerns about the potential for abuse. He said that he could forsee the law being misused, for example, in the midst of a contentious divorce.
“I think it’s a well-intended step in the right direction, but I also have concerns about abuse,” said Kavanagh. “There is the potential for someone to say something that’s not true, and the next thing you know the respondent is going to have their home searched and their weapons taken away.”
Figueroa believes concerns about the potential for abuse of the red-flag law are overblown. To obtain a protective order, he said, family members or school officials must provide actual evidence that the subject poses a threat, evidence that the subject of the order would have an opportunity to contest in court. Making false statements on a red-flag application would expose the petitioner to arrest and prosecution.
Figueroa said the safety of law-enforcement officers charged with securing firearms from a person that had been judged by a court to pose a risk to themselves or others was his more immediate concern with the law. “My main concern is for the well-being of my deputies,” said Figueroa. “I think that’s a concern that every chief has when we have to send our people out to secure those weapons.”
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