A brewing court fight will decide the fate of a 2019 New York state law that allows judges to block access to firearms for up to a year to anyone deemed suicidal or a threat to others.
Similar to measures implemented in 20 other states and Washington, DC, New York’s “red flag” law aims to prevent preventable shootings and suicides by allowing police, parents and others to apply to the courts when they see clear warning signs. Judges have approved more than 6,400 orders since the law took effect four years ago.
But lawyers for people fighting those demands challenged the law itself and — in some cases — found sympathetic judges: three declared it unconstitutional. Blocking access to firearms without a doctor’s opinion violates gun rights and due process, they ruled.
State Attorney General Letitia James is appealing three of those decisions, hoping to curtail further challenges through higher court opinions upholding the law’s validity. His office filed its arguments in July in the Appellate Division courts in Brooklyn and Rochester.
“The constitutional right to own a firearm is limited to law-abiding and responsible people, that is, those who are unlikely to engage in behavior that would result in serious harm to themselves or others,” wrote Sarah Coco , an assistant solicitor general in James’ office.
A series of outside parties are seeking to join James in court in support of the legislation, widening the latest battle in the national debate over gun restrictions.
One request to intervene was filed on behalf of other states with red-flag laws and Washington, D.C. Another came from a pair of gun control groups: the Brady Center to Prevent Gun Violence and the Giffords LawCenter to Prevent Gun Violence.
The third intervention request was made by three New York City district attorneys — Alvin Bragg Jr. of Manhattan, Melinda Katz of Queens and Michael McMahon of Staten Island — and Westchester County District Attorney Mimi Rocah. They called the red flag law an “important tool in the fight against gun violence.”
What happened to the disputed cases?
One appeal case stems from a beef over a leaking toilet that quickly escalated.
Middletown police responded to a confrontation between condo neighbors in January and ended up arresting 26-year-old Corey Monroe and confiscating his two shotguns. He is accused of pointing a loaded gun at a neighbor who knocked on his door, enraged by a complaint Monroe made to the landlord, according to a police report.
Orange County Judge Craig Brown approved an officer’s request for a temporary extreme danger protection order against Monroe, the first step in a red flag case. But then a lawyer filed a challenge on Monroe’s behalf, citing another judge’s ruling in December that declared the law unconstitutional.
Brown agreed. Not only did he refuse a final order, but he also called the law invalid on April 4.
Brown, who has made similar requests before, promptly dismissed all eight red flag cases assigned to him, refusing to weigh the merits of each request — except in one instance — or issue even those are temporary orders, according to a USA Today Network review of his rulings. No arguments from lawyers are needed for those dismissals.
Among the orders he denied was one against a 13-year-old boy who told classmates on a school bus on April 11 that they “shouldn’t go to school tomorrow.” According to New Windsor police, both boys had other disruptive episodes at school, including attempts to strangle himself and swinging chairs and pipes at other students.
He was too young to buy a gun, but a red flag order required his mother to safely store any firearms in their home. Brown denied the application as soon as police filed it on May 4, saying the law was unconstitutional.
The attorney general appealed that decision and Brown’s decision in the Middletown shotgun case.
What are the arguments?
Brown ruled that judges cannot decide that someone is likely to cause serious harm — the justification for a red flag order — without a doctor or mental health expert saying so. An order prevents someone from buying or possessing a gun and requires them to surrender any guns they have.
Without an expert’s mental health determination, Brown concluded in April, the law “lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional Right to bear arms.”
Two other judges also found the law unconstitutional. Thomas Moran, a Monroe County Supreme Court justice, did so in December in a case in…