New York’s ‘Red Flag’ Gun Law Is Little Used, Poorly Understood
Supporters of the state’s Extreme Risk Protective Order say it might have put the Buffalo shooter on notice. But court data show that its use is erratic and uneven.
For nearly three years, New York judges have been able to issue what’s called an Extreme Risk Protective Order (ERPO) that bars a person deemed a danger to themselves or others from buying firearms for a year.
The problem, supporters of ERPOs say, is that the so-called red flag gun law is rarely invoked in much of New York because so few people know about it.
Years after it went into effect, the law was barely utilized in Broome County, the home of Payton Grendon, the 18-year-old alleged white supremacist charged with fatally shooting 10 Black people in Buffalo in a hate-fuled rampage last weekend.
Grendon was able to obtain the AR-15 that police say he used in the racist killing spree even after being brought by the State Police to a psychiatric ward last year after writing in a high school essay that he planned to commit a murder-suicide when he graduated.
Under the statute, a number of people could have petitioned for an ERPO at that moment – including school staff, family and any housemates he may have had. The state police could also have requested an ERPO. But nobody did.
Buffalo police say Grendon claimed he was just joking, and an assessment of Grendon’s risk to himself or others was never brought before a judge.
By October, around the time Grendon was buying his gun and more than two years after the law went into effect, Broome County courts had only ever granted one ERPO, and it wasn’t for Grendon.
Some supporters of ERPO believe the tragedy in Buffalo could have been avoided if Grendon had been barred for a year from buying his firearm.
Rebecca Fischer, executive director of New Yorkers Against Gun Violence, says multiple circumstances preceding Grendon’s hateful journey to Buffalo indicated there was at least the potential to seek a protective order.
“There were enough indicators of risk and threat based on what he said in school, based on the fact that the state police were called and based on the fact that he spent a day and a half in a mental health clinic,” Fischer said. “We don’t know if it would have been filed, but if it had been filed, the shooter would have been given the opportunity to explain himself. And even the mere filing of an ERPO would have put him on notice.”
In fact, state court data makes clear the law has been applied erratically around the state. The number of cases varies dramatically from county to county, with some counties seeing only a handful of petitions and some — with similar sized populations — seeing dozens.
The statute allows law enforcement, school staff, family and housemates to petition in state Supreme Court for an order barring an individual from buying firearms for a year if the court finds the individual is a danger to themselves or others. A judge can issue an immediate temporary ban prior to a hearing, and the individual can contest the petition. It also allows the police to confiscate any firearms already in the individual’s possession.
Judges have granted 589 one-year bans and 875 temporary bans since August 2019, when the law kicked in. Most of the full-year bans started with temporary bans, so there’s an overlap in the number of cases. But in hundreds of cases, the temporary ban did not become a full one-year ban, data show.
Suffolk County, at the far end of Long Island, accounts for the most red flags issued, with 116 full-one-year ERPOs and 187 temporary petitions, much more than any county in the state, the data show.
In New York City, on the other hand, only one full-year ERPO ban has been approved in all five boroughs — in Queens, which has also seen three temporary bans. That case involved a man who’d years earlier tried to smuggle a sword inside his cane onto a flight at JFK Airport. The record of the protective order is sealed.
Brooklyn has seen two temporary ERPOs that did not result in full one-year bans, and there have been zero petitions in the Bronx, Manhattan and Staten Island. The Brooklyn cases are also sealed.
According to Lisa Geller, state affairs advisor at Johns Hopkins Center for Gun Violence Solutions, NYPD have explained to her that New York City’s ERPO numbers are low because obtaining a firearms permit is more difficult in the city and because most of the individuals who would potentially qualify for an ERPO are already subject to a city prohibition on further purchases because they’ve been convicted of felonies.
Overall, many supporters of Extreme Risk Protective Orders say the number of petitions nearly three years into the law’s existence is far lower than they’d expected, primarily because the general public doesn’t seem to know that it exists.
“We know that ERPO is being under-implemented,” said Rebecca Fischer, executive director of New Yorkers Against Gun Violence. “From what we’ve surmised, there has not been enough use of ERPO as there could be.”
“Basically it’s all over the place,” said one of the law’s original sponsors, Assemblymember Jo Anne Simon (D-Brooklyn). “You have some places where you have one filed and other places it’s 38.”
Simon said the problem is public awareness. Most ERPOs appear to be filed by law enforcement, even though so many other parties who are concerned about an individual’s well-being - school employees, family and roommates - can file a petition if they choose.
“They prepped for people to file pro se, say the man on the street, if your kid is a danger,” Simon noted. “But it hasn’t been as used by individuals, possibly because many people don’t understand it.”
“I think people don’t know,” she said. “It hasn’t filtered down to the public.”
A Tale of Two Counties
Two similar, neighboring Long Island counties highlight this wide disparity. In Nassau County, 14 orders that resulted in one-year bans have been issued to date, compared to 116 in Suffolk County. Both counties have similar populations — 1.4 million in Nassau, 1.5 million in Suffolk.
These cases are sealed after the ban expires. The one case for which THE CITY could find public record took place in Nassau County after police were called when a man with a history of mental illness showed up at a medical clinic in Mineola, L.I., with a loaded shotgun in a bag.
In October 2019, Nassau County police filed an ERPO petition to confiscate his shotgun and bar him from buying firearms for a year.
During several days of hearings, the man, identified in court records as MB and who lived at the time in Queens, represented himself and admitted that he’d been diagnosed with a mental illness but was not adhering to his medication regimen. MB claimed that President Trump had called him and told him to buy guns, and ranted about a grand conspiracy led by the police and public officials.
In January 2020, the ERPO petition was granted by a Queens Supreme Court judge. The decision was later upheld on appeal.
Suffolk County Police did not respond Tuesday to THE CITY’s multiple questions about the high rate of protective orders approved in that county.
Geller, of the Johns Hopkins Center for Gun Violence Solutions,, says the more the tactic is promoted, the higher the rate of petitions filed.
“What I’ve seen in states that don’t use it a lot but one county does is there’s a champion in that county who encourages others to use it,” Geller said.
Simon and other supporters contend an aggressive public information campaign is crucial to educate New Yorkers about how the law works, emphasizing that it does provide due process for individuals facing a potential court-ordered ban on buying firearms.
“I think we need to raise this in people’s consciousness. Let people know they can file,” she said. “If you don’t feel comfortable doing this, go to law enforcement.”
Since last fall, Broome County courts have since seen an increase in the number of petitions, with 10 more one-year bans approved as of this week. Britney Babb-George, a spokesperson for the Broome County district attorney, said prosecutors only get involved in ERPO petitions if there are concurrent criminal charges. She declined to discuss specific cases because, she said, the DA doesn’t track ERPO petitions.
Following the Buffalo catastrophe, Gov. Kathy Hochul, who has long supported the use of the one-year firearms purchase bans, vowed to take a look at why ERPO was not issued to Grendon.
“I want to find out what happened with the application of our Red Flag Law,” she said. “When there’s early warning signs that someone can do harm to themselves or others, there has to be an examination as to whether or not there are guns in the house that this person has access to.”
In Grendon’s case, that did not happen.