New legislation allows for removal of firearms from a person who poses a threat before a crime has occurred to prevent a tragedy
Erie County District Attorney John J. Flynn spoke with the media to inform citizens about the “Red Flag Law” that goes into effect this weekend. The legislation allows certain authorities to file a petition to the court to prevent an individual who poses a potential threat to themselves or others from possessing, purchasing or attempting to purchase guns.
New York is the 13th state to enact legislation that aims to prevent a tragedy by allowing the court to take action before a crime has occurred. The law, passed by the New York State Legislature in January and signed by Gov. Andrew C. Cuomo the following month, takes effect on Saturday.
Earlier this week, the Erie County District Attorney’s Office sent a letter to every police agency and school district in Erie County to notify them of the procedure and to offer assistance in the filing of petitions under the new legislation.
The “Red Flag Law” allows certain authorities to request a temporary “Extreme Risk Protection Order” (ERPO) to prevent an individual believed to pose a threat from having access to guns in an effort to prevent a tragedy.
Petitions to obtain an ERPO can be filed by the district attorney, county attorney, a member of law enforcement, a school administrator, or a household member of the individual against whom the order is sought. A petition can only be filed by a school official in the district where the individual is currently enrolled or where they have been enrolled in the past six months.
The concept is that these authorities are close to the individual in question, and therefore would have direct knowledge that he or she poses a potential threat to himself, herself or others.
The order would temporarily prohibit a person from purchasing, possessing, or attempting to purchase a firearm, rifle, or shotgun upon finding probable cause. It would also allow for the seizure of guns from an individual.
Prior the passage of the “Red Flag Law,” a person could only be prohibited from having access to guns if he or she had been charged with a crime.
District attorneys in New York will now be able to proactively intervene and prevent an individual from having access to firearms before a criminal complaint is filed. Prior the passage of this legislation, district attorney’s offices would have been prohibited from filing a petition in a civil matter.
A petition to the court must include a sworn statement and information on the petitioner having direct knowledge or other reason to believe the individual in question owns, possesses, or has access to firearms. The court must find that the person is likely to engage in conduct that would result in serious harm to himself, herself or others before a temporary ERPO can be issued.
These cases will be presented before a judge in State Supreme Court who may render a decision on the day the petition is presented. If the petition is granted, the respondent must be notified and a hearing must be scheduled within three to six days.
The court will notify New York State Police, gun licensing officers, and the NYS Division of the Criminal Justice. The court will also notify the local police agency in the individual’s jurisdiction, which will be responsible serving the order to the individual and conducting a background investigation. The subject of the order will be asked to surrender all firearms, but a judge may also direct law enforcement to search for weapons.
The ERPO under the “Red Flag Law” can remain in effect for up to one year. While the order is temporary, applications to renew an existing order may be made within 60 days of when it is set to expire.
“This new law is of particular important to law enforcement and school officials because, far too often, family members, educators and police observe alarming behavior in an individual or student, but have not been able to take preventative action,” Flynn said.