Orders Barring Gun Possession Skyrocket

Dutchess, Putnam police apply at record rates

The use by police in Dutchess and Putnam counties of court orders that prevent people deemed a risk to themselves or others from buying or possessing guns has skyrocketed since a mass shooting in Buffalo last year spurred changes in the law. 

This year, Dutchess’ Supreme Court had approved 221 temporary and final extreme risk protection orders (ERPO) — also known as “red-flag” orders — filed by the sheriff’s office and other police agencies in the county through July 8, more than the 150 granted all of last year and nearly 20 times the 11 from 2020. 

Temporary and final orders, which are handled as a civil matter, have also skyrocketed in Putnam, whose Supreme Court has approved 27 this year compared to 10 in 2022. 

Because multiple orders can be filed against one person, the individuals subject to orders in Dutchess this year have totaled 123 so far, and in Putnam, 14. They are prohibited from buying or possessing handguns, rifles and shotguns, either temporarily or for up to a year. 

In addition to police agencies, district attorneys, school officials, health care professionals and members of a person’s family or household can apply to a state Supreme Court to have someone at-risk of shooting others or themself barred from having weapons. 

Supreme Court judges are required to rule on requests, and, before an order is issued, people can challenge, at a court hearing, an application to prevent them from possessing a gun. 

“It’ll direct us to seize any firearms — basically acts as a search warrant for the residence, or the judge can list other places on there,” said Capt. Michael Grossi of the Putnam County Sheriff’s Department. 

The state’s red-flag law first took effect in August 2019, and New York is now one of 21 states and the District of Columbia that prevent people considered public-safety or suicide risks from having firearms. 

But the original law, which gave police and other eligible applicants discretion when applying for ERPOs, drew criticism after an 18-year-old with white-supremacist views killed 10 people and injured three during a shooting on May 14, 2022, inside a supermarket in Buffalo. Each of the victims was Black. 

The shooter, Payton Gendron, had once been ordered to undergo a psychiatric evaluation after school officials alerted state police about his stated desire to commit murder and suicide. Despite those statements and the existence of the original ERPO law, Gendron still was able to legally buy the rifle he used in the shooting. 

Four days after the shooting, Hochul signed an executive order requiring state police to apply for an ERPO whenever they had probable cause to believe someone posed a threat. 

The following month, on June 6, 2022, the governor signed a package of new gun laws, including one requiring that police and district attorneys apply for orders “upon  the receipt of credible information” that someone is “likely to engage in conduct” that would harm themself or others. 

The amended law also added psychiatrists, psychologists, family and marriage counselors, nurses, social workers and other health care professionals to the list of people who could apply for an ERPO.  

“Usually, we’re getting some calls from county mental health, or it’s coming through from a state agency that there’s been an issue, and then there’s this application to the court,” said Grossi. 

Gun owners, however, are challenging the legality of red-flag laws under the Second Amendment. 

Two state Supreme Court judges, Craig Stephen Brown in Orange County and Thomas Moran in Monroe County, have ruled that the current law violates Second Amendment rights. 

Brown, in an April opinion siding with a man who allegedly pointed a loaded and cocked shotgun at a neighbor, said New York’s ERPO statute “lacks sufficient statutory guardrails” to protect people’s right to bear arms. 

“Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued,” he said. 

The New York Attorney General’s Office is appealing Brown’s decision.