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“Significant” Problems with NY Red Flag Law

Charlie T Waite

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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.

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