Gun Laws in NYS-New, tougher regulations: Part 1
by Len Geller –
For the first time in six years, the New York State Legislature has passed major gun control legislation, seven bills in all, including a controversial “red flag law,” one that bans bump stocks, one that prohibits school teachers and administrators from carrying guns in school, and another that extends the waiting period for gun buyers whose background check is inconclusive and delayed. One bill would allow authorities to review the mental health records of out-of-state applicants for gun permits in New York, and another bill would create local gun buyback programs throughout the state. A final bill, passed early in March 2019 (the other six were passed in January 2019), would require the safe storage of firearms in households with children under 16 years of age.
Except for a 2018 law that removes rifles and shotguns from domestic abusers, closing a loophole that applied only to handguns, Democrats in the legislature had been stymied for six years from passing post-Safe Act gun control legislation by a Senate coalition of Republicans and breakaway Democrats known as the Independent Democratic Conference (IDC). In addition, another Democratic senator, Simcha Felder, a non-member of the IDC, caucused and voted regularly with the Senate Republicans, so that even when the IDC disbanded in 2018, the Republican opposition including Felder still held a 32-31 advantage in the Senate and an even larger voting advantage with former members of the IDC still on their side.
What changed for 2019? Frustrated for years by Felder and the IDC, Governor Cuomo and the Democrats successfully targeted former IDC members with primary challenges in 2018, defeating six of the eight members with progressive candidates. In addition, the Democrats added eight additional Senate seats in the 2018 midterm election to increase their advantage to 39-23 (excluding Felder) and finally took firm control of both houses of government for the first time in six years. The result predictably has been a whirlwind of new legislation, especially on gun violence and gun control. Of the seven new bills, five close loopholes in the law, one is concerned with school safety, and one provides incentives to reduce the number of illegal guns in the state.
Red Flag Law
Red flag laws are measures that allow a court to issue an extreme risk protection order (ERPO) prohibiting an individual judged to be a violent threat to themselves or others from temporarily possessing or purchasing a firearm. Prior to the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, only five states (California, Connecticut, Indiana, Oregon, and Washington) had red flag laws on the books, but since the Parkland massacre, eight more states (Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, Rhode Island, and Vermont) plus the District of Columbia had joined them in 2018. New York becomes the 14th state to enact such a law.
The implementation of red flag laws varies by state. Some states like Connecticut, Indiana, and Florida allow only law enforcement officials to petition the court for an ERPO, while others like California, Oregon, and Washington expand the category of petitioners to include family and household members as well. The New York law expands that even more to include school administrators or their designee, such as a teacher, guidance counselor, psychologist, social worker or nurse.
How does New York’s red flag work? The process has two stages. In stage one, if a family member, law enforcement official, or school administrator or their designee has good reason to believe that an individual (student or adult) is a threat to harm themselves or others, he or she can petition the court for a temporary ERPO that would remove all of the guns the subject possesses or has access to and prohibit the subject from attempting to purchase or possess any firearm while the order is in effect. In the second stage, if the court grants the temporary order, it will inform the subject that it will hold a hearing in three to six business days to determine if a permanent ERPO will be issued. At this stage, the court will advise the subject to consult an attorney for legal advice and be prepared to provide evidence that they are not a threat to harm themselves or others. If requested, and the request is reasonable, the defendant can have more time to prepare for the hearing. If a permanent ERPO is issued, it can be for any period up to a year; however, during this period, the subject has the right to one appeal hearing to set aside the order. Once the ERPO expires, the subject must submit a written request to the court to have his or her guns returned, and the court must share this request with the original petitioner and law enforcement. If the petitioner or law enforcement requests a renewal of the permanent ERPO because they believe the subject is still a danger to themselves or others, the entire process will be repeated.
Prior to the Red Flag Bill, family and household members, school officials, and law enforcement in New York were powerless to prevent a disturbed and potentially violent individual from legally purchasing and possessing a firearm unless he or she was a convicted felon, wanted for a felony or other serious crimes, convicted of a limited number of serious misdemeanor offenses (like domestic violence), had a verifiable history of mental illness, or was on the state’s mental health database. In targeting dangerous individuals that fall outside these categories, the Red Flag Law is designed to reduce this gaping loophole, but of course the loophole will never be fully closed because the law’s success depends on feedback from family and friends and on rigorous enforcement by the police, neither of which is foolproof.
Not surprisingly, gun rights groups like the NRA and its allies are strongly opposed to red flag laws because they allegedly violate the Second Amendment and the due process clause of the Fourteenth Amendment. But defenders of New York’s Red Flag Law emphatically deny this. The Second Amendment (the right to bear arms), they argue, is not absolute and clearly admits of exceptions and qualifications. If there is good reason to deprive non-adults, convicted felons, and the mentally ill of access to guns, it certainly makes good sense to prohibit such access to emotionally disturbed individuals who exhibit clear warning signs of violent behavior. Such warning signs can include a history of abuse, harassment, and bullying, blaming and scapegoating others, threats of violence against specific individuals or groups, anger management problems, suicidal and homicidal fantasies, and mental health problems such as paranoia, schizophrenia, and other delusional ideation.
Supporters of New York’s Red Flag Law also argue that the law does not deprive citizens of their due process rights. Any citizen against whom a temporary ERPO has been issued has the right to defend him or herself in the second stage of the process. They have a right to legal counsel and the opportunity to persuade the court with compelling evidence to overturn the protection order, and even if they lose in court, they still have the right to an appeal hearing in the future. If an individual is the victim of a false or vindictive accusation, he or she has the opportunity to challenge and disprove the charges.
Opponents of the law also argue that issuing a temporary ERPO violates the fundamental legal right of the presumption of innocence because it assumes a person is guilty and allows confiscation of his or her firearms prior to any hearing. In response, defenders of the law claim that the issuance of a temporary ERPO presumes neither the guilt nor innocence of the defendant Instead, it follows the maxim “better safe than sorry” and takes a “wait and see” approach followed by a hearing in which the defendant is presumed innocent, and the burden of proof falls on the government to prove its case beyond a reasonable doubt. Like laws that prohibit convicted felons and the mentally ill from purchasing and possessing guns, red flag laws are designed to prevent crime not to punish law-abiding citizens. That is why it is imperative to issue and enforce a temporary ERPO as soon as possible, since waiting another week or two may be too late. The imminent threat of gun violence against self or others requires immediate action; otherwise, the law is ineffectual and pointless.
Do red flag laws work? There is compelling evidence that they do, but not in the way most of us would expect. In a recent study of the effects of red flag laws in Connecticut and Indiana, the two states with the longest history of such laws, what stands out is not the effect on gun homicide rates but the effect on gun suicide rates. What the study found is that Indiana saw a 7.5% decrease in gun suicides in the ten-year period following the enactment of the law in 2005, while there was no significant increase or decrease in non-gun suicides in the same period. In Connecticut there was only a 1.6% decrease in gun suicides in the first eight years following the law’s enactment in 1999, but a whopping 13.7% decrease in the eight-year period after the Virginia Tech mass shooting of 2007. In a 2017 study of Connecticut’s Red Flag Law, researchers found that one suicide was averted for every eleven gun removals.
Gun suicides in the United States have reached epidemic proportions compared to the rest of the world. Americans kill themselves with guns at the rate of 6.9 per 100,000, second in the world only to Greenland, which has a higher rate due to being a country with so few people (11 gun suicides per year versus nearly 24,000 in the U.S.). In 2017 there were 39.773 gun deaths in the U.S., of which 60% or nearly 24,000 were suicides. Firearms are used in about 33% of female suicides and in 50% of male suicides. Extensive research has shown that the gun suicide rate in the U.S. is not distributed randomly throughout the country but is concentrated in states with the highest rates of gun ownership and the most lenient gun laws. Montana is the leader with 19.4 suicides per 100,000 followed by Wyoming (16.6) and Alaska (16.0). Alaska has the highest rate of gun ownership in the United States (61.7%), and Wyoming (53.8%) and Montana (52.3%) are not far behind.
These statistics confirm what common sense tells us: that access to guns will increase the incidence of gun suicides. There are two reasons for this. Guns are the most lethal and effective means of committing suicide, and a significant percentage of suicide attempts occur because of impulsive decisions made during short-lived and transitory periods of anguish and despair, decisions that the individual would likely regret later if he or she had survived. A major study of suicide attempt survivors bears this out. Nearly 90% of suicide attempt survivors do not end up dying by suicide. Studies show that 85-90% of suicide attempts by gun are successful compared to less than 10% of attempts using pills or slashing wrists and just 5% by all non-firearm methods. A meta-analysis of 14 different scientific studies concluded that having access to a firearm triples the risk of death by suicide.
In addition to lowering suicide rates, red flag laws can reduce the incidence of mass shootings by disturbed and violent individuals who exhibit clear warning signs before committing their crimes. In a Mother Jones study of 62 mass shootings over a thirty year period from 1982-2012, 80% of the shooters obtained their guns legally and 61% displayed multiple warning signs prior to the murders. In 2014 the FBI released a study of “active shooters” (those who kill or attempt to kill people in a populated area) between 2000 and 2013, and 62% had a history of abuse, harassment, or bullying and other warning signs. In the Mother Jones online database that tracks mass shootings from 1982-2019, there were 47 more mass shootings between 2013 and 2019, of which only 18 had a definite indication or absence of warning signs (the rest are “unclear” or “to be determined” or simply not specified), and of these, 16 or a full 89% had clear warning signs.
The recent Parkland mass shooting is a case in point. Not only did the 19-year-old shooter give numerous warning signs, but his concerned mother contacted law enforcement numerous times. Since Florida did not have a red flag law in place at the time, there was very little that law enforcement could do. If a red flag law had been in place (the Parkland massacre was the catalyst for enacting the Florida law), it’s very likely that the tragedy would have been averted. And Parkland is not alone. There are many other tragic stories about mass shootings that could have been averted had a red flag law been in place and rigorously enforced, and I encourage the reader to google “mass shootings with warning signs” to learn more.
Expanded Background Checks
Under current federal law all firearm purchases (including rifles and shotguns) are subject to a background check by the National Instant Criminal Background Check System (NICS). When a gun dealer requests a background check, the NICS will reply with one of three answers: “proceed,” “denied,” or “delayed.” While the vast majority of nationwide background checks (92%) are resolved immediately, those receiving a “delayed” response must be completed in three business days, and if no reply is received within the three-day window, federal law allows the transaction to proceed. According to the FBI, just over 60% of “delayed” cases are resolved within the three days, which leaves almost 40% of such cases unresolved because more time is needed for the FBI to complete the background check. In the meantime, the gun sale will go through, even though the applicant has not been thoroughly vetted. According to the FBI, between 2010 and 2014 more than 15,000 gun sales went through nationwide to ineligible individuals whose background checks were “delayed” but not resolved within the three-day waiting period.
One of the new gun laws in New York closes this loophole by extending the waiting period from three to thirty business days, allowing the FBI to undertake a more comprehensive background check on “delayed” applicants. For example, some state and federal laws make certain misdemeanor convictions like domestic violence or drug possession a disqualifying condition for purchasing or possessing a firearm. If an applicant’s criminal history indicates a misdemeanor conviction, the transaction will be flagged as “delayed” to allow the NICS to contact local court and law enforcement officials to determine if the conviction is disqualifying, often resulting in a delay beyond the three-day waiting period and the default sale of a gun to a prohibited applicant. A case in point is the white supremacist Dylann Roof who murdered nine people at Emanuel African Methodist Episcopal Church in South Carolina in 2015. Even though Roof had confessed to a prior drug possession that would have disqualified him from purchasing or possessing a gun, and even though the purchase was delayed, the NICS was unable to discover the confession within the small three-day window. Had a longer waiting period been in place, it is likely that Roof would not have been able to legally acquire the gun that murdered nine people.
A second bill that expands background checks concerns non-residents who apply for a handgun permit in New York state. In a major case in 2013 involving a Florida resident who owned a vacation home in Schoharie County, the New York Court of Appeals ruled that non-residents who work, own a business, or live part-time in New York are eligible to apply for a handgun permit, but it soon became clear that the new law had a significant weakness. Since confidentiality rules prevented New York authorities from investigating the mental illness records of other states, it was impossible to check those records unless the applicant waived his or her right to confidentiality. The new law closes this loophole by requiring a non-resident applying for a handgun permit to waive this right and allowing New York law enforcement to investigate the applicant’s home state mental illness history.
Resources:
- https://www.npr.org/2018/06/04/616268027/gun-studies-permit-laws-reduce-murders-red-flag-laws-cut-suicides
- https://www.theguardian.com/us-news/2018/dec/13/us-gun-deaths-levels-cdc-2017
- https://everytownresearch.org/reports/disrupting-access/
- https://www.motherjones.com/politics/2012/07/mass-shootings-map/
Part 2 of Gun Laws in NYS can be found online at: https://www.owllightnews.com/gun-laws-in-nys-part-2/