NY Bar leader criticizes revised red flag law  from the Rochester Democrat & Chronicle

ALBANY – Weeks after lawmakers embraced expansions to a law that allows firearms to be seized from persons deemed to be dangerous, the revamped 'red flag' statute is flawed with 'significant deficiencies ' including potential threats to due process rights, according to the New York State Bar Association’s leader.

Sherry Levin Wallach, president of the lawyers’ group, expressed concern that judges are required to make rulings regarding an individual’s mental state in the absence of a requirement for a psychiatric evaluation. She also pointed out the New York Red Flag law forces individuals to represent themselves when they lack funds to hire a lawyer or don’t understand the importance of being represented by an attorney.

'We are all horrified by the tragic and repeated mass shootings across our state and nation, and support policy changes that might prevent the next tragedy from occurring,' Wallach said in an essay published by the USA Today Network. 'But expanding a broken statute like New York’s Red Flag Law without making much-needed improvements is not the answer.'

Wallach’s commentary caught the attention of the National Rifle Association, which in a blog post Monday called her critique 'refreshing'

The N.R.A. says it shares the view that dangerous people should not have access to firearms, but believes the New York statute has fundamental due process protections while creating risks to violations of the rights of innocent people.

Tom King, president of the New York State Rifle and Pistol Association and an N.R.A. board member, said he agreed with Wallach’s essay on the state framework for initiating emergency protection orders authorizing law enforcement to seize weapons from an individual.

'It’s what we’ve been saying since Day One,' said King, whose group last month won a U.S. Supreme Court ruling which found New York’s restrictions for concealed carry permits infringed on the constitutional rights of applicants for pistol permits.

New York has had a red flag law since 2019. But the issue got renewed attention following the May 14 racist massacre of 10 African Americans at a Tops supermarket in Buffalo. Those killings were allegedly carried out by an 18-year-old Broome County man whose erratic behavior in high school one year earlier drew State Police attention, though he still managed to acquire a Bushmaster XM-15 rifle in the weeks before the massacre at a shop in Endicott.

The new amendments added to the Red Flag law last month require police and prosecutors to file extreme risk petitions when they have credible information that individuals are about to harm themselves or others. If police secure such a judicial order, they can seize guns or prevent the individuals named in the orders from acquiring firearms.

In the nine weeks since the Buffalo massacre, State Police said their investigators have filed 143 Red Flag petitions, representing a significant increase in the pace of those interventions.

Timothy Dymond, president of the union representing State Police detectives, said the governor’s office and the attorney general’s office 'have left us hanging' by not providing legal representation to those investigators when they go to court with the extreme risk removal petitions.

'When they get temporary removal from the judge, they have a hearing scheduled within three days, and our people are going to these hearings without representation,' Dymond sasid. 'We’re oftentimes taking on a skilled defense attorney that represents the respondents. So it’s just a losing formula. The state of New York has attorneys representing its interests in traffic tickets. So the fact they have an investigator without an attorney representing the state’s interests for these cases is just baffling.'

Thomas Mungeer, president of the New York State Troopers Police Benevolent Association, said the Red Flag requirements have become 'an unfunded mandate' for already strained State Police. 'We need the resources in order to complete the mission,' Mungeer said.

The package of new gun laws included an expansion of those who may file extreme risk protection order petitions to include health care practitioners who have examined an individual within the last six months.

Hochul’s office, asked about the Bar Association head’s critique of New York’s approach to Red Flag interventions, pointed to remarks Hochul made three weeks ago.

Hochul noted then the state had raised the purchase age for semi-automatic rifles while increasing reliance on the Red Flag laws. 'And I thank the State Police for being so aggressive in their approach in making sure that we protect citizens,' Hochul added.

An ardent supporter of gun owner rights, Assemblyman Robert Smullen, R-Fulton County, said the Red Flag law, in his view, remains flawed, while much of the package of new gun laws has the effect of hindering the ability of law-abiding people to exercise their right to have firearms to protect themselves.

'They decided to pass an onerous law that applies to all legal, law-abiding citizens and prevents them from being able to defend themselves,' he said. 'On so many levels, it’s unconstitutional.'

Smullen said one solution to a gun debate that is often geographical in nature is to have the S.A.F.E. Act -- the Secure Ammunition and Firearms Enforcement legislation of 2013 -- apply only in New York City.

He noted it took police 25 minutes to respond to a home invasion crime at his rural house last December. 'That’s why people in my area own guns,' he said. 'It’s a different scenario than living in Manhattan.'