In his remarks to the nation Monday regarding two mass shootings over the weekend, President Trump reiterated his support for confiscating weapons from people found to be mentally ill.
A law that aims to do just that and more is about to go on the books in New York.
New York’s “red flag” gun law gives authorities the right to issue what will be known as an "extreme risk protection order," which is designed to keep guns out of the hands of people believed to pose a threat to themselves or others, supporters of the law say.
The orders would allow seizures of guns from those who have not been charged with a crime.
“The goal is to get guns out of the hands of people who really, truly shouldn’t have them because they are a danger to themselves or others,” said Assemblywoman Jo Anne Simon, D-Brooklyn, who sponsored the legislation in the Assembly.
Twelve states and Washington, D.C., already have this kind of law in effect, according to the Brady Center to Prevent Gun Violence, an advocacy group. Most of the laws were passed after 2016 and came in response to mass shootings across the country. Three other states, in addition to New York, have passed laws that have yet to go into effect.
At least 29 people died over the weekend in mass shootings in El Paso, Texas, and Dayton, Ohio. Neither Texas nor Ohio has a "red flag" law, according to the Brady Center. The shooter in the Dayton mass killing showed warning signs of an obsession with killing and death and was kicked out of high school for making a list of girls he wanted to kill, according to the Dayton Daily News.
In the wake of the weekend's mass killings, Trump said Monday the country should focus on dealing with mental illness, with possible steps including "red flag" laws over gun-control measures, according to the Washington Post.
New York's law, passed by the State Legislature in January and signed by Gov. Andrew M. Cuomo in February, goes into effect Aug. 24.
To help New Yorkers understand how the system is supposed to work, The Buffalo News reached out to the state Unified Court System, which is chiefly responsible for implementing the procedures called for in the new law.
Administrative judges across the state “are still working out many of the logistics,” wrote Lucian Chalfen, director of public information for the court system, in an email late last month. Chalfen declined to answer questions about how the process will work.
The News spoke with Simon and Erie County District Attorney John J. Flynn about how the law is supposed to work. Flynn said he anticipates some “bumps in the road” as officials get the process up and running.
What is an "extreme risk protection order"?
The new law creates these orders, which are similar in concept to a temporary restraining order, Simon and Flynn said. If granted, the order would prohibit a person from buying, possessing or attempting to buy a gun. A gun, under the law, is defined to be a “firearm, rifle or shotgun.”
“You’re asking the court to basically temporarily take someone’s guns from them and/or prevent them from buying guns in the future,” Flynn said.
There are two steps: There’s an initial order issued by a judge and then a hearing must be held three to six days later, at which time an order can be put into effect for up to a year. The initial order is called a “temporary” order, and an order issued after a hearing is described as the “final” order.
How does the process to obtain an order begin?
An application would be made in State Supreme Court, in the county where the person against whom the order is sought lives.
Who can request one?
Applications for the orders can be made by a police officer; the district attorney who has jurisdiction; a family or household member of the person against whom the order is sought; or a school administrator or that administrator’s designee. The school officials with that power are those in the district where the subject is enrolled or where they had been enrolled in the prior six months.
The idea behind the bill, according to Simon, is that people close to a person – those who would be in a position to know – would be aware if an individual poses a threat.
What must be shown to obtain an order?
The application must include a sworn statement and include information about whether the person asking for the order knows or has reason to believe the would-be subject of the order owns, possesses or has access to guns. The application should include where the guns are located, with as much specificity as possible.
At the time of the initial application, a judge will issue an order when the applicant shows the subject “is likely to engage in conduct that would result in serious harm to himself, herself or others,” the law states. The applicant’s burden of proof at that time is one of “probable cause.”
Things a person writes online or says to others could be considered.
Under the law, the judge should consider “any relevant factors,” including any threat or act of violence or uses of physical force by the subject against themselves or another person; violations or alleged violations of orders of protection; a pending charge or a conviction for an offense that involves the use of a weapon; the reckless use or display of a gun; any history of violating extreme risk protection orders; evidence of recent or ongoing abuse of drugs or alcohol; or evidence the person recently acquired a gun, other deadly weapon or ammunition. Under this part of the law, “recent” is defined as within the last six months.
What’s the timeline?
A judge is supposed to rule on an application on the same day it’s filed. A judge can either issue an order or turn down the application. After the temporary order is served, a hearing will be scheduled between three and six business days later. The subject of the order may request “a reasonable period of additional time to prepare for the hearing,” the law reads.
If no temporary order is issued, the law still calls for a hearing within 10 business days, though the subject of the order may request more time in that scenario, too. The applicant may also withdraw the application if the initial request is rejected.
What happens at the hearing?
The person asking for the order must demonstrate the subject “is likely to engage in conduct that would result in serious harm to himself, herself or others.” That must be demonstrated “by clear and convincing evidence,” a higher burden of proof than what was needed at the time the application was made. It’s a legal standard that’s less than the standard at criminal trials of “beyond a reasonable doubt.”
The Legal Information Institute at Cornell Law School defines “clear and convincing” on its website as a standard set by the U.S. Supreme Court that “means the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.”
The “clear and convincing” standard is the same one required to have a person involuntarily committed to a mental health facility, Simon said.
“You have to have some real evidence,” she said.
Once an order is issued, what happens?
If a temporary order is granted, the court will notify the State Police, other police agency in the jurisdiction and gun licensing officers and the state Division of Criminal Justice Services. The state will notify the FBI.
The court will also notify the local police agency with jurisdiction, which will be directed to conduct a background investigation and provide information to the court.
Police will serve the order, at first asking the individual to surrender all firearms in their possession. A judge may also direct police as part of the order to search for weapons in their possession.
When a final order is issued, the same agencies and authorities notified of a temporary order will be notified. The court will temporarily suspend a person’s firearm license, if they have one.
Applications to renew existing orders may be made within 60 days of expiration. When an order expires, the records are sealed.
Will all guns in a residence be seized?
Because the purpose of the law is to limit access to firearms, guns found in a household that are owned by someone other than the subject of the order would not be seized as long as they were properly secured and stored, as required by existing law, Simon said.
Can the firearms ever be returned?
“In no case is it a permanent deprivation of the person’s firearm,” Simon said.
The subject of the order has the right to ask the court once during the time the order is in effect to set aside any portion of the order. The subject must prove, also with “clear and convincing evidence, any change of circumstances that may justify a change to the order.”