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NEW YORK STATE: Red flag notices need equality

We can’t disagree with the need for extreme risk protection orders.

Otherwise known as red flag orders, an extreme risk protection order allows a court to seize a person’s firearms if a judge agrees with a request by police or family members that a person is a danger to themselves or others. A temporary extreme risk protection order is issued by a local state Supreme Court justice, and if issued, must be followed until the judge listens to both sides at a hearing to determine whether a final ERPO shall be issued. That hearing usually takes between three and 10 days after an initial application is filed. A final extreme risk protection order can remain in force for up to a year before it is renewed or terminated by a judge. At that point a defendant can apply to have firearms returned.

State lawmakers recently debated whether or not to require courts like state Supreme Court in Mayville to file paperwork so that temporary and final extreme risk protection orders are included in the existing statewide computerized registry of orders of protection and warrants of arrest. Currently, courts submit the information to the State Police, law enforcement agencies with appropriate jurisdiction, applicable licensing officers, and the Division of Criminal Justice Services.

Why does it matter?

Frankly, it’s a matter of fairness.

Issuing the temporary red flag order involves a lower standard of proof than a final red flag order. While the proposal (A.5873/S.3340) would require a prompt notice when the red flag order is given, there is no requirement that the notification is removed if a judge decides after a red flag hearing is held that the order should not be granted – meaning someone can be flagged in state notification systems if they have done nothing wrong. So far this year, there have been 35 temporary red flag orders, with 29 of them being turned into final red flag orders. That means six people were accused by society of being a danger, but the court disagreed. Those six people should not have their rights infringed because state law treats them as if they were guilty before their case was heard. The notification requirements passed by the state Legislature is, in our view, incredibly similar to being found guilty before a trial is held.

That was the argument Assemblyman Andy Goodell, R-Jamestown, made on the Assembly floor before voting against A.5873. Democrats didn’t agree with Goodell’s argument. We hope Gov. Kathy Hochul does, even if she negotiates a chapter amendment protecting the rights of those who, it turns out, are falsely accused in a red flag case.

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