Is this the future for Red Flag laws in other states?
Even though “two [New York] state Supreme Court justices have ruled [red flag laws as] unconstitutional,” since an executive order by Governor Kathy Hochul in May 2022, the number of extreme risk protection orders in New York has exploded, and police departments are overwhelmed — they are unable to police other crimes. Our research on Red Flag laws indicates that they don’t accomplish the goals they are supposed to achieve in reducing suicides or homicides and that they might be counterproductive (see here and here). Some of our other writings on Red Flag laws are available here and here.
The number of extreme risk protection orders has increased from 95 in 2021 to 584 in 2022, according to data released from the New York State Police. The 283 in the first three months this year sets a pace for about 1,100 – a 1,057% increase.Tom Gantert, “Red flag law applications up over 1,000%, even as judges rule unconstitutional,” The Center Square, May 3, 2023.
The work is preventing police from going after other crimes.
“the number of firearms being seized by police from individuals found to be “likely” at risk of harm to themselves or others has soared so much in the past year that evidence rooms in some State Police barracks have had to be reconfigured or expanded to store the weapons” . . .
“The spike in ERPOs has created an unmanageable workload that will undoubtedly cause other criminal investigations to suffer,” Dymond said in a statement Thursday. “. . . We are also realistic in noticing when our people are overwhelmed. ERPOs are important but so are murder, rape and robbery investigations. We still need to be able to investigate local burglary rings. We still need to track down child predators and drug dealers.”Robert Gavin, “State Police union says investigators ‘overwhelmed’ by gun seizure cases” The Times Union, May 12, 2023.
The two state Supreme Court cases where the law was declared unconstitutional are available here. Unfortunately, these cases won’t have any binding effect until they get an appellate court decision, but to avoid that, the government won’t appeal these losses.
In December 2022, state Supreme Court Judge Thomas Moran ruled that the extreme risk protection order was unconstitutional. He said the order didn’t provide the “same constitutional protections” as the state’s mental hygiene law.
Last month, state Supreme Court Judge Craig Brown ruled the temporary extreme risk protection order was unconstitutional. The ruling noted that there wasn’t a “requirement of any input from a medical or mental health expert” in the extreme risk protection order, while the mental hygiene law did require a physician’s opinion. . . .
the two cases where state Supreme Court judges ruled the orders as unconstitutional would not have a binding effect until they were challenged in the appellate court and affirmed. . . .Tom Gantert, “Red flag law applications up over 1,000%, even as judges rule unconstitutional,” The Center Square, May 3, 2023