A gunman was responsible for the deaths of 10 people in the Buffalo market on Saturday New
York Gov. Kathy Hochul publicly wondered why the law in place to stop people who are similar
to him from purchasing guns didn’t perform in the way it was intended to.
In the year 2019, New York enacted an extreme risk-prevention law, also called “red flag law,”
which can ban those who pose a risk to their own or others from possessing firearms. The
Buffalo shooter was not a victim of an underlying criminal record however, he threatened to kill
people which was brought to the attention of the police.
“I’ve asked for the investigation of exactly what transpired there,” Hochul said to Buffalo’s WKSE
radio station on Monday, when asking why police didn’t block the gun owner from carrying it.
At the age of 17 at the time, he confessed that he was planning to commit murder-suicide in the
high school he attended. He was asked to undergo a psychological assessment and then
referred to the police who chose not to pursue further action due to reasons that remain
undetermined. At the time he turned 18 and was able to legally purchase a gun, nothing could
stop him from buying a firearm. That’s what he did. The gun he used for the shooting was
bought at a local store located in Endicott, New York: a Bushmaster semi automatic rifle, which
was illegally modified to improve its performance.
In New York’s red flag law, this could never have occurred.
“This is the kind of story that these orders have been created for,” said Christian Heyne, vice
president of policy for The gun-control advocacy group called the Brady Campaign. “The tool
hasn’t implemented the way that New York designed.”
What is the red flag law? How does it function?
Nineteen states as well as Washington, DC, currently have red flag laws, which are also called
Extreme risk law protection. This is a type of gun control that Republicans have backed as well
as some governors from red states, including former President Donald Trump and South
Carolina Sen. Lindsey Graham. Connecticut is the very first state to adopt such a law over two
decades ago, but the majority of them were passed within the past six years.
The more recent laws follow the same rules, which are based on Domestic violence protective
orders. Certain individuals are able to petition for an extremely risk-related protection order by a
court -an administrative legal mechanism, not a criminal one which would stop an individual
from legally acquiring or possessing firearms until one year, and permit police to take their guns
during that time.
Most of the time it is the police that start the petition against people with a criminal record who
have made threats to commit violence or exhibit other behavioral risk factors. In some states,
relatives of the person or health professionals as well as school administrators may also be able
to be involved. If the person continues to present a danger for themselves or others, the
petitioner is able to come back to court once the year has come over and request a new ruling.
The purpose of these laws isn’t to penalize people, but rather to stop guns from falling into the
hands of people who have shown a higher danger of violence and who do not otherwise have
the necessary characteristics to be incriminated or commit a crime involuntarily.
The red flag law might have been ineffective in preventing the Buffalo
We don’t yet know the reasons behind the reason New York state police decided not to apply for
an order of protection for extreme risk in the case of the Buffalo shooter. They did not explain
the reason to journalists on Monday, however, they did say that when he threatened to kill the
shooter had not named any specific murder targets. Beau Duffy, a spokesperson for New York
state police, did not comment on the motives on Tuesday.
There are other variables that could contribute, including the fact that he was a bit older. At the
time police were called to his home because of the threats of violence he had made in the
classroom, he was still under the age limit when he was able to buy guns. However, New York
state law would allow the police to request protection orders regardless of age. They could have
predicted that he could remain the risk of being shot once he was 18.
“They should have taken the initiative to announce that, in the future, the gun owner will be able
to purchase this gun. I would guess that if he were older, that would have been their natural
instinct,” Heyne said.
Police could have also decided to seek a protection order in the event that they had better
education on the subject as suggested by Josh Horwitz, co-director of the Johns Hopkins
Center for Gun Violence Solutions. The majority of states’ red flag laws aren’t that old and New
York’s laws are only three years old and have only issued 589 warrants prohibiting the
possession of firearms. This means that we do not know the full extent of how effective they are
and police are still learning to utilize the laws correctly.
There are been certain areas that have — like San Diego; King County, Washington; and
Broward County, Florida — that have invested resources in the creation of law enforcement units
who have requested such orders, but these are not the only exceptions. King County, for
example, has used an order of protection to confiscate weapons from the suspected leader of a
neoNazi group in the year 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
explained. “The laws aren’t self-executing. These are new laws. It is important to ensure that
we’re in favor of them.”