New York’s use of red-flag laws to seize guns has skyrocketed
By Joanna Slater
January 19, 2024 at 6:00 a.m. EST
A selection of firearms removed in Long Island’s Suffolk County. Last year, judges in the county issued 1,600 red-flag orders, but fewer than 100 guns were seized. In most cases, individuals don’t own a gun, but the order will prevent them from buying one for a year. (Suffolk County Sheriff's Office)
The unusual phone calls began last year.
So many guns were being seized by the New York State Police, several evidence custodians told a union official, that they were running out of space to store them.
The guns were tagged and arranged neatly, lined up on shelves or in cabinets. “People were saying, ‘Where the heck are we going to put all this?’” recalled Timothy Dymond, the president of the New York State Police Investigators Association.
The packed evidence rooms were a direct result of one of the most ambitious experiments ever attempted with red-flag laws, a relatively new tool that states are deploying to combat gun violence. Such laws are used to prevent people at risk of harming themselves or others from possessing or buying firearms.
In New York, the results of the experiment have been dramatic. Last year, the state’s civil court judges approved more than 4,300 final orders under the law, up from 222 in 2021. At least 1,800 guns were removed by the state police and local law enforcement agencies in 2023.
New York’s unique approach was driven by the nation’s rising gun deaths. After the massacre at a Buffalo supermarket in 2022, New York strengthened its red-flag law in a manner unlike any other state, making it a requirement rather than an option for law enforcement authorities to pursue such orders.
Last year, the law was used to respond to an array of possible dangers, from suicide to mass violence: a student who brought a gun to school and allegedly talked about shooting a teacher; a teenager who police said brandished a gun on a school bus; a man who threatened to shoot up a supermarket with his father’s gun; a woman experiencing delusions who brought a shotgun to a gas station.
Research has shown that such laws are associated with a decrease in the rate of firearm suicides, which account for more than half of the nation’s gun deaths. In Connecticut — the first state to pass a red-flag law — researchers estimated that one suicide was averted for every 10 or 11 gun removals. The laws have also been used hundreds of times in cases of people threatening mass shootings, a recent study found.
New York Gov. Kathy Hochul (D) has hailed the red-flag push as a way to prevent deadly tragedies. In her annual address to lawmakers on Jan. 9, she said the gun-control legislation enacted by the state is “a model for the rest of the nation.”
Gun rights groups, however, have called the expanded use of the red-flag law overzealous and unconstitutional. Such groups won a major victory last year when the Supreme Court struck down a century-old New York law governing who could carry a concealed weapon. But, so far, the court appears inclined to uphold laws that remove guns from those considered dangerous.
New York’s enforcement of its red-flag law has not been without challenges: Some law enforcement officers have struggled with the additional workload the cases represent as well as finding room to store the guns they seized.
The storage issue is a minor growing pain, said a senior state official who spoke on the condition of anonymity to discuss policy deliberations. “It’s a good problem to have,” he said. “It means our strategy is working.”
A spokeswoman for the state police, which has removed more guns under the red-flag law than any other law enforcement agency in New York, said it is currently managing the increase in stored firearms “with existing space.”
New York is one of 21 states that have passed red-flag laws, the majority of them within in the last six years. The measures typically allow law enforcement and family members to petition a court to temporarily take guns away from someone at risk of harming themselves or others. During the time the order is in effect — usually a year — the person is also barred from buying weapons.
“It’s a very tailored intervention,” said April Zeoli, a professor at the University of Michigan School of Public Health who studies red-flag laws.
The measures are also known as “extreme risk protection orders,” or ERPOs, a term proponents prefer over the more colloquial “red flag.”
Researchers say the impact of the laws has been weakened by inconsistent application. Some jurisdictions, such as the city of San Diego, have embraced the law as a tool, using it often. Meanwhile, in states such as Nevada and New Mexico, fewer than 30 percent of counties have issued such orders, according to the research arm of Everytown for Gun Safety.
After New York’s ERPO law went into effect in 2019, its rollout, too, was uneven, with law enforcement officials in many parts of the state using it sparingly.
Then, in May 2022, 18-year-old Payton Gendron opened fire in a racist rampage at a Tops Supermarket on Buffalo’s East Side. Ten people were killed, all of them Black. The prior year, someone had called the state police to report that Gendron had made alarming comments about a possible shooting. The police took him to a hospital for a mental health evaluation, and he was later released. No petition was filed to prevent Gendron from buying or possessing a gun.
Shortly after the Buffalo shooting, Hochul convened a call with her leadership team, the senior state official said. She gave them 24 hours to come up with policy changes that might have prevented the shooting or could avert future violence.
Four days after the shooting, Hochul issued an executive order requiring law enforcement personnel to file an ERPO application when there was credible information that a person was likely to cause serious harm to themselves or others. That meant an ERPO would no longer be an optional choice, but an obligation.
“Quite frankly, we didn’t look at other states,” the official said. “We thought this would be the right step.” In June, lawmakers in Albany included the change to strengthen the ERPO law in a package of gun restrictions. Health-care practitioners were also added to the list of people who could file applications, which already included family members and school officials.
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New York is the only state that requires law enforcement personnel to file ERPO petitions in certain situations, said Allison Anderman, senior counsel at Giffords, an advocacy group that works to combat gun violence. Police officers in New York “know the law is available and should be used, something which has been a problem in many other states.”
Starting in mid-2022, just weeks after the executive order, the number of ERPO applications in the state began to surge. In the second half of that year, the number of final orders granted by judges more than quintupled (in New York, a judge can approve a temporary ERPO immediately, but a final order is granted only after a hearing).
One early issue: State troopers were appearing at court hearings on the petitions without legal representation.
To rectify the situation, Hochul and New York Attorney General Letitia James (D) created a new unit of prosecutors dedicated to ERPO cases involving state police. Last year, they handled about 1,400 such cases, according to a spokeswoman for the attorney general’s office, winning more than 90 percent of them.
Long Island’s Suffolk County files more ERPO applications than any other in New York, a trend that local officials attributed to early efforts to train police officers on how to use the law and improve coordination with prosecutors.
Suffolk County Sheriff Errol Toulon Jr. said he believes the enforcement of the law has saved lives. He described the case of a person who made suicidal comments last July and a judge granted an ERPO. The sheriff’s office found the person possessed 11 shotguns, 10 rifles and 13 pistols.
The following month, police were called after another person put a fake gun to their head, saying “wait until I get a real one.” A few weeks later, the same person attempted to purchase a firearm, Toulon said, but was prevented from doing so because a judge had approved an ERPO.
Whether it involves a threat of suicide or to harm others, “we want to make sure someone making those claims is not going to be able to access firearms,” Toulon said.
A review of court records for recent and upcoming ERPO hearings in Suffolk County showed that many cases involved people deemed at risk of harming themselves. But there were also circumstances in which people posed a danger to others: A 53-year-old man brandishing an ax threatened to kill his brother and his family; a 42-year-old woman experiencing paranoid delusions fired a shotgun at her ceiling, then took the weapon with her to the nearest gas station. In both cases, firearms were removed.
Last year, judges in Suffolk County issued 1,600 final ERPOs. The sheriff’s office seized fewer than 100 firearms, however. In a majority of cases, individuals don’t necessarily own a gun, but the order will prevent them from buying one for a year, said Chief Deputy Sheriff Chris Brockmeyer.
Not all applications are successful. In October, police responded to a call from a 60-year-old man saying he was holding an intruder at gunpoint, court records showed. When they arrived, they found no signs of an intruder, but the caller told them he was experiencing delusions. A judge later denied the application for an ERPO, saying the man was not alleged to have threatened harm to himself or others.
Some critics and Second Amendment activists say New York’s ramped-up enforcement of the law has meant that people who pose little to no threat could be deprived of their firearms and become unable to buy them.
“You’re presumptively going to lose access to your guns, that’s the practical effect,” said Daniel Strollo, a lawyer in Rochester, N.Y., who has represented dozens of people facing ERPO petitions. The law lacks sufficient procedural safeguards, he said, and its requirement that police officers file such orders is “insulting” to their expertise and experience.
Lower courts in New York have issued decisions that alternately uphold and reject the law’s constitutionality. The state is appealing a ruling last year by a judge in Orange County who held that the red-flag was unconstitutional.
Anderman, the senior counsel at Giffords, said that red-flag laws have so far survived constitutional challenges across the country. “Every single one builds in due process requirements,” she said.
Still, some law enforcement personnel have expressed unease about the blanket application of the law. Sometimes an officer “will say to me, ‘Tim, I’m really glad we did this because this guy was losing it and very dangerous,” recalled Dymond, the head of the state police investigators association. Other times, they tell him they filed an ERPO application only because they were obligated to do so.
That’s when officers ask if they really need to take a person’s guns away. “Yeah, we do,” is Dymond’s reply. “That’s the law.”