Since taking effect in 2019, New York’s so-called red flag law, which lets judges bar people who pose a danger to themselves or others from possessing a firearm, has been invoked 589 times, according to the State Office of Court Administration.
About 18 orders to take guns away from people are issued per month under the law, which allows relatives and law enforcement or school officials to request what is known formally as an extreme risk protection order.
The process involves filing an application with the state court system at the county level, stating that a person “is likely to engage in conduct that would result in serious harm to self or others” as defined in part 9.39 of State Mental Hygiene Law.
The law, one of 19 of its type across the United States, defines “a substantial risk of physical harm” to others as one “manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”
Since Saturday’s racist attack that killed 10 people in Buffalo, questions have been raised about why the law was not invoked against the suspect, Payton S. Gendron. Last spring, in a high school project that asked students about their plans, Mr. Gendron responded that his was to commit a murder-suicide, according to a law enforcement official briefed on the matter.
Though Mr. Gendron later said he was joking, a vice principal reported the remark, the official said. In response, according to the state police, Mr. Gendron was taken to a hospital for a mental health evaluation. He was released within a couple of days, the police said.
While no details on the psychiatric evaluation have been released, it does not appear that anyone sought a red flag order against the suspect. The state police said that he had not named a specific murder target.
“We passed the law specifically to ensure that people who exhibit signs of being dangerous to themselves or others can be denied access to guns,” said State Senator Brian Kavanagh, a Democrat who represents parts of Lower Manhattan and Brooklyn and who sponsored the bill. “There’s a real question about whether that law was effectively applied when this person was apparently detained after making threats.”
“It’s important that we understand what happened there and that every county in the state is implementing the red flag law that we passed,” he added.
Someone applying for a red flag order must state “specific facts and circumstances” that justify it. The application form also includes check-boxes for categories of concerning behavior, including threats or use of physical force, violation of an existing order of protection, reckless use or brandishing of a gun and substance abuse. It also includes space to list the firearms owned by the person who is the subject of the application.
After an application is filed, a judge holds a hearing at which both sides can be heard. If a judge grants the order, the person who is the subject of the order must surrender all guns and may not buy others for as long as a year. The order can be renewed upon a showing that the person “continues to be likely to engage” in dangerous conduct.
In Mr. Gendron’s home county, Broome, there have been 11 red flag orders, or about one for every 18,000 residents. The court system does not track the number of applications that were denied.
The law enforcement official who had been briefed on the school project said that in New York, hundreds of school threats are called in each year, and that in each case, authorities interview students and parents to determine whether students have access to guns. The authorities then try to make a reasoned call on what action to take.
The suspect wrote in a document he posted online that he obtained a shotgun and a bolt-action rifle in 2020. Sometime in the past few months, he bought the Bushmaster semiautomatic rifle that police say he used in the shooting at a store in Endicott, N.Y., 20 miles from his home in Conklin, according to the owner.
Nineteen states have enacted such laws, including Virginia and New Mexico as recently as 2020. Because almost all have been enacted within the past 10 years, there is limited research on their effectiveness.
Josh Horwitz, co-director of the Center for Gun Violence Solutions at Johns Hopkins University in Baltimore, said that the laws could be effective when law enforcement bodies were properly trained and there was funding behind such programs.
Mr. Horwitz, who campaigns on behalf of red flag laws, pointed to King County, Washington, where the district attorney has a team that helps residents and law enforcement officials file such orders, and helps ensure that guns are removed when the orders are approved by a judge.
Mr. Horwitz said that the Buffalo attack indicated a need to reassess how the measure was understood by law enforcement authorities.
“New York is a big state, and there is an opportunity for a more systemic type of implementation,” he said.
