New York’s “red flag law” should have prevented the Buffalo shooting

Editor’s note, February 15, 2023: A gunman who killed 10 people at a Buffalo supermarket has been sentenced to life in prison. The original story, published in July 2022, follows.

After a gunman killed 10 people in a Buffalo supermarket on Friday, New York Governor Kathy Hochul announced new measures to strengthen the country’s already strict gun laws.

In 2019, New York enacted an extreme risk prevention law, otherwise known as a “red flag law,” that would prevent individuals believed to be a danger to themselves or others from possessing firearms. New York state police decided not to apply the law to the Buffalo shooter, who had no prior criminal record but had made serious threats of violence. On Wednesday, Hochul issued an executive order requiring police to step forward.

“The red flag law exists to keep deadly weapons out of the hands of people who pose a threat to themselves and society. Today, we are strengthening that law,” he tweeted.

He is too called in the state legislature to pass a bill that requires the police to report guns associated with crimes in 24 hours and mandate that semiautomatic pistols sold in New York be microstamped so that law enforcement can link cartridges found at crime scenes to guns that fire. And he announced the creation of a special domestic terrorism unit in state police, along with efforts to investigate social media companies that provide platforms for hate speech.

The goal is to make sure people like the Buffalo shooter don’t fall through the cracks again. When the shooter was 17, he said he wanted to kill himself in high school. He was required to undergo a psychological evaluation and referred to the police, who decided not to take further action for reasons that are not yet known. So when he turned 18, there was nothing stopping him from legally buying a weapon. And yes. The weapon used in the shooting was purchased from a store in Endicott, New York: a Bushmaster semiautomatic rifle that had been illegally modified to increase its capacity.

Under New York’s red flag law, that will never happen.

“This is the story that this order is made of,” said Christian Heyne, vice president of policy at the gun control advocacy organization the Brady Campaign. “The tool is not being implemented as New York was designed.”

How does the red flag law work?

Nineteen states and Washington, DC, currently have red flag laws, otherwise known as extreme risk protection laws. It’s a form of gun control that even Republicans have endorsed, including several red state governors, former President Donald Trump, and South Carolina Senator Lindsey Graham. Connecticut was the first to adopt such a law two decades ago, but others were implemented in the past six years.

More modern laws follow a similar formula, modeled after domestic violence protection orders. Some people can get an extreme risk protection order from the court — a civil, not criminal, mechanism that would prevent an individual from legally owning or buying a gun for up to a year and allow police to seize the firearm for that time.

In most cases, the police initiate petitions against individuals who have a criminal history, who make threats of violence, or who present other behavioral risk factors. But in some states, individual family members, health professionals, and school administrators can do it, too. If the individual continues to present an immediate danger to himself or others, the petitioner can return to court after a year and request another order.

The purpose of this law is not to criminalize people; it is to stop guns from falling into the hands of those who have exhibited heightened risk of violent acts and who are not used to meet the threshold to be charged with a crime or involuntarily committed.

How New York’s red flag law could have failed to prevent the Buffalo shooting

We still don’t know why the New York state police decided not to seek an extreme risk protection order against the Buffalo shooter. He did not explain why to reporters on Monday, but indicated that, when he made the threat, he had not identified a specific assassination target. Beau Duffy, a New York state police spokesman, declined to comment on the motive Tuesday.

There are several other factors that can cause it, including age. When he was referred to the police for threats of violence made at school, he was still of legal age to purchase a gun. But New York state law still allows her to apply for an order of protection, regardless of age, and may have assumed she would continue to be in danger after she turned 18.

“They have to take a proactive step to say, at some point, they’re going to be able to buy this gun. I think the older they get, the more instinct they have,” Heyne said.

Police may decide to pursue protective orders if only they had more training in the matter, said Josh Horwitz, co-director of the Johns Hopkins Center for Gun Violence Solutions. Most states’ red flag laws are still new; New York is only three years old and so far has passed only 589 orders preventing people from owning firearms. So we still don’t know how effective it is, and law enforcement is still learning how to use it properly.

There are several jurisdictions – including in San Diego; King County, Washington; and Broward County, Florida – which has put resources into creating a dedicated law enforcement unit that proposes such an order, but they are exceptions. King County, for example, used a protective order to seize firearms from the leader of a neo-Nazi group in 2019.

“What we see is that if you have strong training, you have people who are dedicated to this, this is their job or a good part of their job, we see better success,” Horwitz said. “The law doesn’t do itself. It’s a very new law. We have to make sure we support it.