New York’s “red flag law” should have prevented the Buffalo shooting
Editor’s note, February 15, 2023: The 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 at a Buffalo supermarket on Saturday, New York Gov. Kathy Hochul announced new measures to strengthen the state’s already strict gun laws.
In 2019, New York enacted an extreme risk prevention law, otherwise known as a “red flag law,” that can bar individuals who are believed to pose a danger to themselves or others from possessing firearms. New York state police decided not to invoke that law against the Buffalo shooter, who didn’t have a previous criminal record, but had made serious threats of violence. On Wednesday, Hochul issued an executive order requiring police to do so going forward.
“Red flag laws exist to keep deadly weapons out of the hands of people who are a threat to themselves and society. Today, we’re strengthening those laws,” she tweeted.
She also called on the state legislature to pass bills that would require police to report guns associated with crimes within 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 the gun that fired them. And she announced the creation of a dedicated domestic terrorism unit within the state police, along with efforts to investigate social media companies that have provided platforms for hate speech.
The goal is to ensure that people like the Buffalo shooter don’t fall through the cracks again. When the shooter was 17, he said that he wanted to commit murder-suicide at his high school. He was required to undergo a psychological evaluation and referred to police, who decided not to take further action for reasons still unknown. So when he turned 18, there was nothing preventing him from legally purchasing a weapon. And he did. The weapon he used in the shooting was purchased from a store in Endicott, New York: a Bushmaster semiautomatic rifle that he illegally modified to increase its capacity.
Under New York’s red flag law, that never should have happened.
“This is the kind of story that these orders have been created for,” said Christian Heyne, vice president of policy at the gun control advocacy organization the Brady Campaign. “The tool wasn’t implemented the way that New York designed.”
How do red flag laws 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 some red-state governors, former President Donald Trump, and South Carolina Sen. Lindsey Graham. Connecticut was the first to enact such a law two decades ago, but the rest were passed in the last six years.
The more modern laws follow a similar formula, modeled after domestic violence protection orders. Certain people can petition for an extreme risk protection order from a court — a civil, not criminal mechanism that would prevent an individual from legally possessing or purchasing a gun for up to one year and allow police to seize their firearms for that period.
In most cases, it’s the police who initiate the petition against individuals who have a criminal history, who have made threats of violence, or who present other behavioral risk factors. But in some states, family members of the individual, health professionals, and school administrators can also do so. Should the individual continue to present an immediate danger to themselves or others, the petitioner can go back to the court after the year is up and seek another order.
The intention of these laws isn’t to criminalize people; it’s to stop guns from falling into the hands of those who have exhibited heightened risk of violent behavior and who don’t otherwise 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 the particulars of why New York state police decided not to seek an extreme risk protection order against the Buffalo shooter. They didn’t explain why to reporters on Monday but indicated that, when he made the threat, he had not identified a specific murder target. Beau Duffy, a spokesperson for New York state police, declined to comment on their reasoning on Tuesday.
There are a couple of other factors that might have contributed, including his age. At the time that he was referred to police for the threats of violence that he made in school, he was under the legal age at which he could purchase a gun. But New York state law would have still allowed them to seek a protection order, regardless of his age, and they could have foreseen that he may have continued to pose a danger once he turned 18.
“They would have had to have taken a proactive step to say, at some point, he’ll be able to buy this gun. I think if he was older, that probably would have been their instinct,” Heyne said.
Police might have also decided to pursue a protection order if they just had more training on the subject, said Josh Horwitz, co-director of the Johns Hopkins Center for Gun Violence Solutions. Most states’ red flag laws are still relatively new; New York’s is just three years old and has so far only produced 589 orders preventing people from possessing firearms. So we still don’t know much about how effective they can be, and law enforcement is still learning how to use them properly.
There have been some jurisdictions — including in San Diego; King County, Washington; and Broward County, Florida — that have put resources toward creating dedicated law enforcement units that petition for such orders, but they are the exceptions. King County, for example, used a protection order to seize firearms from the alleged leader of a neo-Nazi group in 2019.
“What we’re seeing is that where you have that robust 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 laws don’t self-execute. These are very new laws. We need to make sure that we support them.”