The 18-year-old white supremacist who murdered 10 people in a Buffalo supermarket on May 14 was taken into custody by police last June after he threatened to carry out a shooting at his Western New York high school. He was ordered to undergo a psychiatric evaluation, and released a couple of days later.
None of that prevented him from buying a gun, or keeping the ones he already owned.
Here we break down the law, and try to answer some of those questions.
How does New York’s red flag law work?
The state’s extreme risk protection order (ERPO) law, which took effect in August 2019, allows police, family members, or school officials to petition a court to seize guns from people deemed a threat to themselves or others.
Petitioners can fill out an application online. They will be asked to provide reasons justifying the order, and they’re encouraged to bring supporting documents. There’s space to list the model, caliber, serial number, and location of any firearms in the respondent’s possession. Petitioners must then take the application into court, where a judge will look it over and decide that day whether a temporary extreme risk protection order will be issued.
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If the judge issues a temporary ERPO, a police officer will serve the respondent and immediately remove any guns in their possession. A hearing is then held within the next three to 10 days during which the judge will hear from both parties and determine whether to issue a final order, which can last up to a year. Sixty days before the order is set to expire, the petitioner can file a petition with the court to renew it. When a final ERPO expires, the respondent must file an application with the court to get their guns back.
If a judge declines to issue a final ERPO, the case concludes, and the proceedings leave no trace on the gun owner’s background check history. Likewise, after a final ERPO has expired, respondents should have no problems buying guns in the future.
Do red flag laws work?
So far, they’ve shown promise. But they haven’t been around long enough to definitively say.
The nation’s first ERPO law was passed in 1999, in Connecticut, in response to a mass shooting at the state’s lottery headquarters that left four people dead. For nearly a decade, ERPOs fell under the radar of state legislators. But they came to national prominence after a 2014 mass shooting in Isla Vista, California, when it came to light that the perpetrator’s family had warned police about his intentions. A 2019 study from the University of California, Davis Violence Prevention Research Program identified nearly two dozen cases in which red flag laws may have prevented a mass shooting.
Red flag laws had an effect on other types of shootings as well. Research has shown that extreme risk protection laws helped reduce gun suicides in Connecticut and Indiana. A 2018 study found that red flag laws had the potential to lower gun violence among the elderly.
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But enforcement varies widely among local police. Two jurisdictions that stand out for embracing the use of ERPOs is the state of Maryland, where authorities can request them 24 hours a day, seven days a week, and San Diego, where the city attorney says they’ve been used to prevent mass shootings and suicides.
Are there any objections to them?
Yes. While red flag laws have enjoyed bipartisan support, they also garner stiff opposition from gun-rights advocates. My colleague Alain Stephens put it succinctly when he covered the spread of the policies in 2020:
There is a sizable chunk of the population that fears ERPOs put us on a slippery slope of government overreach. Chief among the concerns is that police or people in personal disputes will use the law to harass and disarm gun owners. There’s even a community on Reddit dedicated to chronicling alleged abuses of the laws.
Critics of ERPOs can be organized into two general camps. The first raises an eyebrow at the constitutionality of the policies, fretting that they weaken or violate the Second Amendment. The second focuses on questions of due process: Do ERPOs provide police and petitioners a means to conduct illegal searches or intimidate enemies?
Do red flag laws apply to extremist ideology?
Only in one state.
Washington State amended its red flag law in 2019 to allow judges to consider whether a gun owner has been convicted of “malicious harassment,” a category that includes behaviors like burning crosses and defacing property with swastikas. Marko Liias, the Washington state senator who conceived of the measure, intended it to curb the “enormous increase in hate-fueled animus” that followed the 2016 presidential election.
Under federal law, only people convicted of felony hate crimes are prohibited from gun ownership. And background checks don’t take social media behavior into account. A 2018 New York bill would have required pistol permit applicants to submit to a social media and internet history search going back as many as three years, but it failed.
Why didn’t the police invoke the state’s red flag law for the Buffalo shooting suspect?
They won’t say.
The Trace sent detailed questions to the New York State Police, which responded to the mass shooting threat at the suspect’s high school in Conklin, New York, last June. Beau Duffy, director of public information for the State Police, confirmed that officers did not seek an extreme risk protection order, but told us, “We are not going to comment further on this topic.”
State police suggested to The New York Times that because the Susquehanna Valley High School student had not named a specific target in his threat to kill someone, the state’s red flag law was not invoked. But the law requires “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person.” Threatening a shooting seems to satisfy this requirement, according to one of the bill’s sponsors.
According to data from the State Office of Court Administration obtained by the Times, New York’s red flag law has been invoked 589 times since taking effect in August 2019, an average of 18 orders per month. A total of 11 have been issued in Broome County, where the suspected gunman resides.
Who else could have raised an alarm?
According to the law, a family or household member, a school official, or a local police officer.
Gun shop owners and staffers also have the discretion to deny a firearm purchase — and often do, particularly when it appears the buyer is in crisis. But Robert Donald, the owner of the firearms shop in upstate New York where the suspect bought the Bushmaster XM-15 rifle used in the attack, said the teenager didn’t raise any concern. He left so faint an impression that Donald said he didn’t even remember him. A friend of the suspect’s told the Times that his interest in guns didn’t ring any alarm bells: “That’s just kind of the thing in rural New York, people like guns.”
Would a red flag law have helped prevent the Buffalo shooting?
According to the suspect’s hate-filled online screed, he bought the Bushmaster XM-15 and another rifle, a Mossberg 500, specifically for the massacre, but he didn’t say when, and police aren’t saying either. But according to the screed, the suspect’s father gave him a Savage Axis XP hunting rifle for Christmas in 2020 — six months before his mass shooting threat caught the attention of police. So if police had initiated a red flag investigation in June, they would have found firearms in the home the suspect shared with his parents. Still, it’s unknown whether a judge would have approved the order, or compelled the teen’s parents to disarm, as well.
One of the bill’s sponsors said that the state’s red flag law was intended for cases like this. “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,” New York State Senator Brian Kavanagh told the Times. “There’s a real question about whether that law was effectively applied when this person was apparently detained after making threats.”
Last December, New York Governor Kathy Hochul signed a law that requires mental health facilities to provide information about the state’s red flag law to patients upon their release. Since the supermarket shooting suspect was only evaluated, and not ordered to undergo treatment, that would not have applied in this case.
Ultimately, a red flag law is only effective if people are willing to go to the authorities and report the behavior of their family members or their students. And they have to be educated about how the law works. “I can’t tell you how many people I’ve seen on Twitter saying ‘it’s not working,’” Assemblymember Jo Anne Simon, another co-sponsor of the state’s red flag law, told City & State. “It’s not working unless people know how to use it.”