Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Proponents of so-called “red flag” laws like to claim they are a “public safety” measure. But a union representing state police investigators in New York is sounding the alarm that a mandate handed down by Gov. Katherine Hochul (D) to increase seizures of lawfully-owned guns is interfering with their other crime fighting duties. Details were provided in a recent article at news site TimesUnion.com.
“Red flag” laws are a controversial gun control concept that allow certain persons to seek judicial orders for police to seize lawfully-held firearms from supposedly “dangerous” individuals and add such individuals to prohibited persons databases used for firearm-related background checks. The idea has been increasing in popularity with anti-gun activists, who see it as closing “loopholes” in current laws.
But pro-gun advocates criticize the laws for lacking adequate due process, for requiring judges to make unscientific guesses about a person’s propensity for future violence, and for failing to otherwise incapacitate truly dangerous individuals or address the underlying issues causing their instability.
Congress, over the NRA’s opposition, last year authorized federal funding to support states in adopting and implementing red flag laws. That law claimed to set standards of due process states would have to meet before being eligible for the grants. Nevertheless, as the NRA has reported, those standards appear to be loosely enforced, if they are being enforced at all.
New York’s red flag law, for example, has been found unconstitutional in at least two separate court decisions. Nevertheless, the state received over $13 million in federal funding to “support” use of the law.
Meanwhile, Gov. Hochul – an outspoken advocate of gun control – last year signed legislation and issued an executive order to expand the scope and use of red flag procedures in New York State. Among other things, these measures mandated that police and district attorneys pursue “red flag” petitions when they have “credible information” or, in some cases, probable cause, to believe an individual may pose a threat. These requirements pertain, moreover, even if the individual is not otherwise accused of actually violating the law (New York has other legal mechanisms for disarming or prohibiting firearm possession because of criminal behavior).
According to the Times Union article:
In 2020, judges issued protection orders against 255 people across New York. This year, in just over four months, the number of individuals subjected to emergency or temporary risk protection orders topped 2,120. And between 2020 and last November, State Police had seized 2,521 firearms under emergency protection orders — a figure that does not include seizures made by more than 150 other New York police agencies.
While those numbers will surely be heralded as a “success” by gun prohibition advocates, they do not necessarily translate into a safer New York State. The article goes on to quote a police union official who lamented that troopers are so busy confiscating lawfully-possessed guns under the new mandates that they are having to defer action against serious crimes.
Tim Dymond, president of the New York State Police Investigators Association, told the Times Union:
The spike in ERPOs has created an unmanageable workload that will undoubtedly cause other criminal investigations to suffer … [Extreme risk protection orders] are important but so are murder, rape and robbery investigations. We still need to be able to investigate local burglary rings. We still need to track down child predators and drug dealers.
The article also mentioned that some police agencies are seizing so many guns under the measure that they are having difficulty finding adequate facilities to store them.
Details in the Times-Union report, and a related article, additionally undercut confidence in the professionalism and due process that attend New York’s red flag proceedings. According to those reports, hearings are sometimes held without representation from the district attorney’s office, with only a police officer appearing on behalf of the state. The proceedings – which concern a person’s fundamental constitutional rights – were described as “similar to those in which someone fights a traffic ticket.”
The ballooning number of red flag petitions also calls into question the effectiveness of New York’s process for vetting who obtains a firearm in the first place. New York has a licensing process for handgun acquisition that far exceeds the standards of federal law, including the submission of fingerprints and photographs. New York’s objective disqualifiers for handgun acquisition and possession are stricter than the federal disqualifiers, encompassing many more types of convictions and mental health procedures. At least one local jurisdiction also requires completion of training and passage of a test.
In addition to automatic disqualifiers, there is room for discretionary denial because of provisions requiring “good moral character” and a finding that “no good cause exists for the denial of the license.” Licenses also must be “recertified” at least every five years, with some local jurisdictions imposing stricter renewal requirements. Processing of an application can take up to six months under the statute, and anecdotal evidence suggests it may take considerably longer in some local jurisdictions.
Licensing authorities also have statutory power to revoke and cancel licenses after the fact (even apart from the “red flag” petition process). Certain types of reports calling into question an individual’s mental health can lead to summary suspension or revocation of a license and the mandatory surrender of “any and all” firearms possessed by the person.
Proponents of these measures justify them as ways to keep firearms “out of the wrong hands.” Yet the surge in red flag applications occasioned by Gov. Hochul’s actions would seem to indicate that plenty of people who navigate this process are still considered too “dangerous” by the state’s estimation to exercise their right to arms.
Meanwhile, as police hunt guns possessed by people who are not accused of crimes, the New York Times is reporting “major crimes” are up significantly in New York City, while the Times Union piece notes the state has seen a decrease in more than 200 state police investigators over the last 12 years.
Guns don’t commit crimes; people do. But recent police efforts to round up guns in the Empire State may actually be leaving criminals freer than before to prey upon the state’s residents.
That, to say the least, does not speak well gun control advocates’ priorities.