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New York appeals court upholds ‘red flag’ law

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(The Center Square) — A New York appeals court has upheld the state’s “red flag” law against a legal challenge arguing that the gun confiscating process is unconstitutional.

In the decision, the Second Department of the Appellate Division said the red-flag law, which allows police to temporarily seize firearms belonging to individuals deemed a danger to themselves or others, doesn’t violate the Second Amendment of the U.S. Constitution.

“This regulation is consistent with the nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns and, therefore, is presumptively lawful,” according to the opinion.

The case stemmed from a legal challenge from a Middletown, New York man who had his firearms taken away under the law after he was accused of threatening to shoot his neighbor during a confrontation where he allegedly brandished a loaded shotgun.

Gov. Kathy Hochul, a Democrat who pushed to expand the red flag law, praised the ruling and said it affirms New York’s “nation-leading gun safety laws intact.”

“In the wake of the horrific shooting in my hometown of Buffalo, New York passed some of the strongest gun safety laws in the nation — including strengthening our “red flag” laws to keep dangerous weapons away from people who pose a risk to themselves or others,” Hochul said in a statement. We are committed to continuing the fight against gun violence and protecting public safety.”

A lawyer for the plaintiff, Corey Monroe, told reporters his client is disappointed by the court’s ruling and is discussing whether to seek further review by the state Court of Appeals.

“We strongly believe that New York’s red flag law continues to lack sufficient and constitutionally-required procedural protections for people who might find themselves on the receiving end of such an order,” Attorney Derek Andrews said in a statement.

New York is one of 21 states that have passed red-flag laws, many of them in the wake of the Valentine’s Day 2018 shooting at the Marjory Stoneman Douglas High School in Parkland, Fla., where a 19-year-old gunman killed 17 people and injured dozens.

The law, signed by then-Gov. Andrew Cuomo, in 2019, allows a relative or someone else with close ties to a legal gun owner to ask a court for an Extreme Risk Protection Order, or ERPO, if the individual exhibits dangerous or unstable behavior. The order gives police authority to confiscate someone’s firearms and ammunition temporarily.

Similar to the process for a domestic violence protection order, petitioners must show evidence that someone intends to harm themselves or others. Individuals subject to an order can appeal. If they are determined no longer to be at risk, they can get their firearms returned.

The use of the law to seize firearms has increased in recent years, according to data from the State Office of Court Administration. In 2022, 4,257 extreme risk protection orders were issued, compared to 538 in the previous year, the agency’s figures show.

Supporters of the law say it has saved countless lives by preventing people in crisis from dying from killing themselves or others.

Critics say the law lacks due process and violates Second Amendment rights in a state with some of the toughest gun control laws in the nation. They also point out that the law doesn’t provide additional mental health resources to prevent possible mass shootings or suicides by firearms.

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