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The Editorial Board: New York’s red flag law failed to stop the massacre in Buffalo. We need to do better

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Tops shooting aftermath (copy)

Had New York's red flag law worked as intended, the man who killed 10 people at the Tops supermarket on Jefferson Avenue would not have been able to buy the weapon he used in the massacre.

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He fell through the cracks.

Though the Jefferson Avenue shooter had already made threats of violence against himself and others a year before last week’s tragedy, he was still able to purchase a deadly firearm. New York State's Red Flag Protection Law, passed in 2019, and expressly designed to stop him and those like him, hadn’t been invoked, mainly because the suspect was able to pass his earlier threats off as a high school senior’s prank when he was sent for a mental health evaluation.

As a result, New York State troopers in Broome County decided the suspect, who had no criminal record, was not a real threat to himself and others and they did not invoke the red flag law, which would have barred the suspect from purchasing any firearm, much less an assault rifle.

We’re not the only ones wondering how this could happen. A recent Vox story quotes Christian Heyne, vice president of policy at the gun control advocacy organization the Brady Campaign as saying, “This is the kind of story that these orders have been created for. The tool wasn’t implemented the way that New York designed.”

According to Broome County District Attorney Michael Korchak, who spoke on the issue Tuesday, the suspect had not mentioned firearms or the specific names of any people he planned to harm and had no previous record of mental illness. Korchak concludes that, in June 2021, pursuing a red flag order “probably wasn’t appropriate at that time.” Korchak was not consulted on the 2021 decision, but it must be noted that hundreds of threats are called into schools every year.

Only about 600 red flag orders have been issued since the law took effect three years ago and it’s likely the relatively new legislation is not sufficiently known or understood for it to be as effective as it needs to be. Though “threat to oneself or others” seems to be a clear enough requirement in theory, in practice it’s very difficult to determine if a person with no obvious criminal or mental illness history poses such a threat.

That’s why a piece of legislation clearly is not enough on its own. There needs to be education and training. This is the opinion of Jeffrey W. Swanson, a professor at Duke University and expert on red-flag measures, who said in a May 18 New York Times report that he would call for a “systematic, administratively driven effort to not only teach people about it but incorporate it and make a routine of it.”

In recent days, New York State has acted quickly to enhance the ability of its red flag legislation to take guns out of the hands of those who would harm others. On May 17, Gov. Kathy Hochul signed an executive order to require state police to file for an extreme risk protection order whenever they have probable cause to believe that an individual is a threat to themselves or others.

That order has already had an effect. On Tuesday, the day it was announced, state police arrested a Grand Island man who allegedly brandished a weapon during an outburst of road rage on Interstate 190; they were then able to seize multiple firearms from the suspect, including two assault rifles and two ghost gun kits.

The red flag law now has more public attention and more enforcement teeth. But those facts can’t offer much solace to the families and others suffering in the aftermath of May 14.

It may be a harsh truth, but if red flag law education and utilization had been as much of a priority when it was enacted as it is now, that suffering might have been avoided.

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