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New York Legislation Aims To Expand Use of 'Red Flag' Gun Law

Ryan Tarinelli
New York Law Journal

A bill in the state Legislature seeks to expand the use of “extreme risk protection orders” as New York’s “red flag” law remains sparsely implemented in many places downstate.

The state’s “red flag” measure, one of the most high-profile gun laws in New York as of late, allows courts to order the temporary seizure of firearms from people believed to pose a danger to themselves or others.

An “extreme risk protection order,” outlined in the law, temporarily bans a person from buying or having a firearm.

State court system data obtained by the New York Law Journal shows such orders were hardly used in New York City in the one year after the gun law went into effect.

Under a bill in the state Legislature, a person who applies for or is issued an order of protection would receive a notice letting them know about their ability to ask for an “extreme risk protection order.”

Lawmakers in the Legislature’s upper chamber passed the bill in July, but the measure has not cleared the state Assembly. Democratic state Senators Jamaal Bailey, D-Bronx, James Gaughran, D-Suffolk, Anna Kaplan D-Nassau, and John Liu, D-Queens, are listed as co-sponsors on the legislation.

State Sen. Shelley Mayer, D-Westchester, who is sponsoring the bill, says not enough people know about the “red flag” law and it’s a cumbersome process to apply for an order under the measure.
A memorandum tied to the law says certain orders of protection allow for the surrender of firearms in certain cases. But it argued the “red flag” law goes further by allowing law enforcement to “proactively search for and remove such firearms.”

“Instances have been reported when victims and potential victims have not been aware of the option to obtain an ERPO when it would have benefited them,” according to the memorandum.

State court system data shows the law is rarely being used in New York City, with six orders being issued citywide in the year since the law went into effect in August 2019. None of those orders originated from state supreme courts in Manhattan, the Bronx or Staten Island, according to the data, which included shorter-term and longer-term orders.

Responding to those figures, lawmakers and gun policy experts to say there are missed opportunities to intervene in situations where a person might hurt themselves or others.

A number of upstate counties are outpacing New York City and most other downstate areas in the number of orders per capita.

For example, Clinton County in the northeastern tip of New York state has an estimated population of 80,500 people. Nine orders originated from the county in the year since the “red flag” law went into effect, which is the same number of orders as Nassau and Rockland counties during that time frame.

Yet the counties of Nassau and Rockland respectively hold about 16 times and four times more people than Clinton County.