New York's red flag gun law takes effect in two weeks

Aug 9, 2019

In the wake of two mass shootings in El Paso Texas and Dayton Ohio over the weekend, there’s been renewed discussion about states and even the federal government adopting what’s known as red flag laws, to get guns out of the hands of potential killers. New York’s red flag law was approved last winter and takes effect later this month.


Governor Andrew Cuomo is urging Democratic presidential candidates to use New York's gun laws as a framework for national gun policy.
Credit WBFO file

The measure, also known as an extreme risk protection order law, would allow a judge to order the confiscation of a person’s guns if law enforcement, school officials, or a family member signs a statement saying they believe the person to be a potential danger to themselves or to others. The individual would also be prevented from buying any guns while the order is in effect. 

After authorities take the guns away, a due process hearing would be held, where evidence would be presented, including things the person might have said to others or on social media.  After that, if the judge finds that evidence “clear and convincing,” they could extend the protection order for up to one year.

The New York State Legislature approved red flag legislation last winter, and at a late February ceremony attended by House Speaker Nancy Pelosi, Governor Andrew Cuomo signed it into law.

“So when the teacher sees there is a problem or a family member sees there is a problem, and believes that a person could be a danger to themselves or others they can go to a judge. And say, 'judge, please do an evaluation,'” Cuomo said on February 25th. “It is common sense. If you believe that was going to happen, why would you sit back and do nothing? “

The law takes effect on August 24th.

Twelve other states and Washington D.C. already have passed extreme risk protection laws. A study found red flag laws in Indiana and Connecticut reduced the occurrence of gun suicides.

Congress has prevented federal agencies form studying the effects of gun violence, so not much other data is available.

New York also has another means to keep guns away from potentially dangerous individuals. Known as the mental health database, it was approved as part of comprehensive gun control measures, known as the SAFE Act, that was passed in 2013, shortly after the Sandy Hook, Connecticut school shooting.   The provision requires mental health professionals in New York to notify authorities if they think a patient might engage in conduct that would result in serious harm to themselves or others. The list is maintained by Cuomo’s Division of Criminal Justice Services.

Governor Cuomo talked about the provision on Rochester public radio station WXXI Wednesday, with Connections host Megan Mack.  

“Just to show you what it's accomplished, we now have 100,000 seriously mentally ill people on the mental health database that could have bought a gun in New York, Megan, who can't now buy a gun because we have a mental health database,” Cuomo said.   

The requirement is controversial among some mental health advocates, who say someone could end up on the list simply for discussing their symptoms with a medical professional.  

Cuomo wants to extend the mental health data base to the rest of the country. He’s asked the Democratic Presidential candidates to endorse the proposal, as well as a ban on assault weapons, and universal background checks for gun buyers.