The story so far: An 18-year-old gunman went on a shooting rampage on May 14 at a grocery store in Buffalo, New York, killing 10 people and injuring three others in what is being called a racially motivated act of domestic terrorism. Of the 13 people shot by the accused Payton Gendron, 11 were black.
The accused was indicted for first-degree murder by a grand jury on May 18, according to news reports.
While U.S. law agencies are continuing to investigate the suspected hate crime, New York’s ‘red flag’ gun law, a restrictive law restricting dangerous individuals from possessing firearms, has found itself at the centre of several debates. Many argue that the law did not keep Mr. Gendron away from guns, considering that he made remarks in his high school last year about carrying out a mass shooting.
What are ‘red flag’ laws ?
Extreme Risk Protection Order (ERPO) law, more commonly called ‘red flag’ law in the U.S., is aimed at gun control. Under such a law, a court can restrict an individual, identified to be at risk of causing violence to the self or others, from accessing firearms for a temporary period.
Police would remove guns from the possession of those identified to be dangerous and they will also be restricted from purchasing new weapons for a specified period of time. The time period for which the individual will be barred from possessing firearms varies from state to state and typically lasts for a year.
As many as 19 states and the District of Columbia have implemented some form of red flag law, according to Johns Hopkins University. Connecticut, in 1999, became the first state to pass an ERPO law.
In June 2021, the U.S. Department of Justice provided a model legislation for states to implement red flag laws.
The rule allows for a petitioner – law enforcement officers, family members or even school officials in some states – to apply for an ERPO against those suspected to be at risk of causing harm. The petitioners are expected to fill in application forms and attach documents supporting their claim, following which the court will hear the case. The order comes with no criminal charges; it is only aimed at preventing those suspected of violent behaviour from accessing guns.
How does New York’s ‘red flag law’ work ?
New York’s red flag law came into effect in August 2019 and it allows for police officers, district attorneys, family or close relatives of gun owners, school officials such as teachers, guidance counsellors, nurses and coaches to be petitioners.
As per New York red flag law, once a petitioner applies for an ERPO, the judge will decide whether a temporary order needs to be issued on the same day. If the order is given on the same day, police will confiscate all weapons from the respondent. Following this, a hearing would be scheduled within the next three to ten days to decide on a final ERPO, which will be for a year. If no final ERPO is issued by the court, the case is considered closed.
The petitioner can return to the court before 60 days prior to expiry of the ERPO and seek a renewal of the order. However, if the ERPO expires and is not renewed, the respondent(s) can then apply for the return of their guns.
Since 2019, when the law went into effect n New York, 589 such orders have been issued by judges in the State, according to data from the State Office of Court Administration, as reported by the New York Times.
The debate now
Much of the debate about the red flag laws in the aftermath of Buffalo shooting came after the laws seemingly failed to stop the gunman from accessing guns after he had talked about committing violence last year.
In his high school project, Gendron said had he wanted to commit a “murder-suicide,” according to a law enforcement official. While Gendron had later clarified that he was joking, a vice-principal had reported the remark and Gendron was taken in for a mental health evaluation and released after a couple of days, the report also showed. However, the police had declined to comment on the details of the evaluation.
In a bid to strengthen the State’s red flag laws following the shooting, New York Governor Kathy Hochul signed an executive order on May 18 that requires the State police to file an ERPO if they have probable cause to believe that an individual might be of harm to themselves or others. The order also said that the State police should ensure that its personnel are trained and instructed on how to file such orders.
Further, the Governor also asked State Attorney General Letitia James to investigate social media platforms that were used to broadcast the Buffalo shooting. “The investigations will look into the social media companies and other online resources that the shooter used to discuss and amplify his intentions and acts to carry out this attack,” the office of Ms. James said.
So, did the law fail ?
Whether a red flag order last year would have stopped the murderous shooting at Buffalo is subject to debate; however, many have wondered why the police did not pursue the order against Gendron. The state police did not offer a reason for their inaction, only saying that Gendron did not name a specific murder target, according to the Times.
Two politicians who sponsored New York’s red flag law, stressed that the threat issued by Gendron at his high school last year should be investigated and said that spreading public awareness about the existence of this law was essential.
Senator Brian Kavanagh, who sponsored the Bill in the State Senate, said an investigation was needed to know “what specifically the evidence was last June and whether there was a conscious decision about whether a Red flag order was appropriate,” media organisation City & State New York reported.
State Assembly member Jo Anne Simon said more public awareness about the law was needed. “There was a complaint he had threatened violence last year when he was in high school, so law enforcement should have applied for an extreme (risk) protection order because he clearly demonstrated an intent to commit violence to himself or others,” she reportedly said. “I can’t tell you how many people I’ve seen on Twitter saying ‘it’s not working.’ It’s not working unless people know how to use it,” she further said.
