This past May, an 18-year-old male walked into a Buffalo, New York grocery store, killed ten black people with an assault rifle, and injured three others in an attack fueled by racist ideology.
The year prior, the gunman of the attack, Payton Gendron, had previously made threatening comments in his high school. In a conversation between a teacher and Gendron about his plans after school, Gendron reportedly talked about murder and suicide and discussed harming his classmates. These remarks brought police attention to the student, who was given a mental health evaluation at a hospital. Ultimately, Gendron was not charged with a crime and left the hospital after a day and a half. Since this mental health evaluation was voluntary, Gendron was still legally allowed to buy guns under federal law.
Many believe that if he had been charged with a crime, or prohibited from purchasing firearms, the Buffalo shooting which occurred the year after could have been prevented. This revelation has sparked discussions and questions across the nation. Why were red flag laws not invoked in this situation?
What Are Red Flag Laws?
Criminal defense attorney Ryan Brown from J Ryan Brown Law explains that “Red flag laws are risk protection orders that allow courts to temporarily remove firearms from an individual, and prohibit them from buying guns in the future for an extended period.”
To begin these risk protection orders, Family members or law enforcement must petition the court. Red flag laws require a hearing where prosecutors must convince a judge that the person poses a threat to himself or others and, therefore, should not be allowed access to guns. An application is filed with the primary county court as a civil case to begin processing an order.
A judge then chooses to issue a temporary order on the same day or not. If it is issued, the police will take the guns away. A hearing will later be set, and the judge may decide on a permanent order which can be extended last a year. It should be noted that these laws are not aimed at criminalizing people. Instead, they are aimed at stopping people who have shown traits of violent behavior from handling a gun.
New York’s Red Flag Law
New York enacted the red flag law in 2019, allowing family members, prosecutors, police, and school officials to petition for gun seizures. As a result, New York boasts of being the first state to give teachers and school administrators the ability to prevent school shootings. Ironically, the law was not used in the case of Gendron.
The New York state police department did not explain why red flag laws were not used against Gendron. The police claim that the teenager was not specific enough with his threats of violence to feel worried, so no further actions were made.
It is difficult for lawmakers and legal systems to determine which threats of violence constitute a seizure of firearms. Josh Horwitz, a co-director of the Johns Hopkins Center for Gun Violence Solutions, believes there is insufficient training on the subject. Red flag laws are relatively new in some states, with New York’s law only being three years old.
How Effective Are Red Flag Laws?
Red flag laws have successfully prevented people from buying firearms and causing harm. It is likely that some mass shootings have been avoided because of them. Though an individual could theoretically obtain a gun through theft, illegal gun markets, and straw purchases, taking away legal means of obtaining firearms can be seen as an easy preventative to make it more challenging for violent people to acquire weapons.
Suicides and small-scale murders are hindered by Red Flag Laws as well. A study by Jeffrey W. Swanson estimated that Connecticut avoided one suicide for every ten to twenty people subjected to gun seizures. These facts make it clear that these laws are effective if appropriately enacted.
Ultimately, it is up to courts and judges to determine whether a gun seizure should be granted. We hope that research into the qualifications for these risk protection orders will help us better identify when these orders should be justly placed onto another. Red Flag Laws are relatively new, and over time we can expect them to be even more effective in stopping people who want to do harm from obtaining guns