In the wake of Saturday’s racist massacre in Buffalo, which President Biden called “hate-filled domestic terrorism,” New York Governor Kathy Hochul issued an order strengthening the state’s so-called “red flag” law, which restricts access to guns for potentially dangerous people. 

Over a dozen states have passed red flag laws in the years since the 2018 mass shooting in Parkland, Florida. Before that attack, only five states had passed such laws. States define “red flags” differently, but the broad goal of the laws is to preemptively remove guns from individuals who may be at risk of harming themselves or others. They are civil laws — not criminal — and are often modeled after domestic violence protection orders. 

New York already has some of the country’s strictest gun laws. Along with requiring background checks and limiting the carrying of firearms outside of the home (a law that the Supreme Court is expected to overturn later this year), New York has a red flag law that permits teachers, prosecutors, police officers, and family members to petition the courts for protective orders. In total, judges have issued 589 orders restricting people from buying or possessing guns. That’s about 18 orders per month since the law went into effect in 2019. 

The process requires filing an Extreme Risk Protection Order (ERPO) with a county court attesting that a person is “likely to engage in conduct that would result in serious harm to self or others.” After an application is filed, a judge hears arguments from both sides. If a judge ultimately grants the protection order, the person in question is required to surrender all guns and is banned from purchasing more for up to a year. The order can be renewed if the person “continues to be likely” to engage in harmful conduct. 

Hochul’s new executive order would direct the State Police to make use of New York’s existing red flag law. Before, police were among the groups that were able to file an ERPO, but they will now be required to seek an order if they have probable cause to believe one is needed. 

As red flag laws become more prevalent across the country (and, in the case of New York, even stronger), there are some civil liberties advocates who have expressed concern that the laws have the potential to restrict individuals’ due process rights. In 2018, for example, as Rhode Island was debating a red flag law, the state’s local ACLU chapter opposed the first attempt at the legislation because of “the breadth of this legislation, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.” 

The ACLU of Rhode Island also raised concerns about the potential for “coerced mental health evaluations” and giving the police “broad authority to search property for firearms.” After the state legislature tightened the standard for granting a petition, the ACLU dropped its opposition. “We believe it’s very important that basic due process standards are considered when drafting measures like this,” said Steven Brown, the Executive Director of the Rhode Island ACLU. “It can have serious impacts on innocent individuals.”

Louise Melling, the national ACLU’s Deputy Legal Director, said in 2018 that red flag laws “can be a reasonable way to further public safety. To be constitutional, however, they must at a minimum have clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by a court.” 

Everytown For Gun Safety, a leading gun control advocacy organization, has argued that red flag laws “give key community members a way to intervene before these warning signs escalate into tragedies without going through the criminal justice system.” 

Supporters of the legislation also point out that there are many other examples of laws that restrict individual liberties for the benefit of the public. A 2021 analysis by legal scholars at NYU’s School of Global Public Health “found that red flag laws are similar to other civil laws that protect people from harming themselves or others, including laws for involuntary commitment and removing children from unfit parents. Red flag laws provide the same or even more procedural due process than do some of these laws that confine or remove individuals—as opposed to their property—against their will.”

Red flag laws have been one of the few gun control measures to enjoy bipartisan support. President Trump endorsed the idea of a federal red flag law after the 2018 Parkland shooting, and some congressional Republicans, including Sen. Lindsey Graham (R-SC), agreed with him. According to a 2019 poll, 77% of Americans support family-initiated ERPOs, and 70% support them when initiated by law enforcement. 

Preet and Joyce discussed the red flag laws, and the concerns around civil liberties, in Tuesday’s episode of CAFE Insider. Here’s what Preet said: 

“The interesting thing is that there actually is a red flag law in New York and some other places. So at least there was some intervention. There was some evaluation. Didn’t stop the crime. We’ll await more details to figure out if there was more that could have been done. Maybe he could have been remanded for a longer period of time. Maybe there was some treatment that he could have been given. But I find this to be one of the most difficult questions in all of public safety and criminal law: how many steps have to be taken before you can take extraordinary action with respect to the liberty of a citizen? And every time something like this happens, the urge is to take away more liberty at an earlier stage, with less conduct. And then on occasion, law enforcement officers do that when they think someone is talking about committing a terrorist act, and then sometimes there are recriminations for that because they say, ‘Well, they didn’t really do anything.’ You find that in terrorist stings and there have been controversies about cases like that also.”

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