Solving America’s gun violence

A look at New York’s latest Red Flag law

A New York state Firearms and Weapons manual is shown at the Pine Tree Rifle Club in Gloversville on Wednesday evening. (The Leader-Herald/Josh Bovee)

GLOVERSVILLE — On Aug. 28, New York state’s “red flag law” went into effect, making New York the 17th state in the U.S. to adopt such a provision. The bill sets a standard whereby an individual deemed a credible threat to themselves or others, via a petition from a relative, household member, school administrator, police officer or district attorney, may be barred from purchasing, possessing or having access to a firearm.

The Extreme Risk Protection Order Bill, as it is officially known, comes amid renewed national debate over gun laws after mass shootings this August — including those in El Paso, Texas; Dayton, Ohio; and Odessa, Texas — claimed the lives of 53 people.

The bill is the newest bit of New York state legislation to take effect in the state’s ongoing effort to help solve the growing epidemic of gun violence throughout the nation — and with it comes a renewed arguments over the effectiveness of the controversial laws, including the state SAFE Act that took effect in 2013; and which some feel disproportionately penalizes law-abiding gun owners, stripping away their rights while doing little to solve the issue itself.

The ‘Red Flag’ law

According to the state Senate website, the red flag law is intended to “establish extreme risk protection orders … prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun … who [has] been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others.”

Merry Brown, left, of Gloversville and Cindy Fratianni of Mayfield take part in the national walk out for gun control and to put an end to mass shootings event on March 24, 2018, in Johnstown. (The Leader-Herald/Patricia Older)

Under the red flag law, when a petitioner files a claim, a hearing will be set on the same day, during which the petitioner “must prove [his or her concerns] by clear and convincing evidence.”

If the judge deems the threat credible, the subject of the petition will be temporarily prohibited from purchasing firearms and all firearms in his or her possession will be temporarily confiscated. A second hearing will be set up within six days of the first, during which the individual will have an opportunity to discredit the petitioner’s claim. If the individual proves that he or she is not a threat, the firearms will be returned, if not they will be retained by law enforcement for up to a year, at the judge’s discretion, after which a new hearing will be set to determine whether or not the order of protection should be renewed.

The critics

While the legislation’s intentions seem clear, its critics, including Fulton County Sheriff Richard Giardino, believe there is too much room in the law for it to be abused.

“I’m not a big fan of the new red flag laws because I don’t think it sets enough safeguards up front,” Giardino said on Wednesday. “If you’re having a dispute with your ex-wife and they want to make a red flag and say that you’re potentially dangerous, the judges are going to err on the side of caution and take people’s guns. There is some due process, but it’s not like proof beyond a reasonable doubt.

Fulton County Sheriff Richard Giardino addresses a pistol permit class at the Pine Tree Rifle Club in Gloversville on Wednesday night. (The Leader-Herald/Josh Bovee)

“It can be abused, and that’s borne out later on when we find out that a number of these are made up or embellished to paint somebody in a bad light. So you can be a lawfully, abiding gun owner and be red flagged.”

Giardino’s thoughts were mirrored by members of the Pine Tree Rifle Club prior to a packed pistol permit course at the club on Wednesday evening.

“Essentially red flag is based upon speculation, hearsay, and conjecture in order to convict somebody,” former Montgomery County sheriff’s officer and Pine Tree Rifle Club instructor Erwin Splittgerber said on Wednesday. “If somebody doesn’t like you, an ex-spouse can say ‘well he threatened me at one time,’ the red flag goes up without due process. Without a trial you lose property, you lose rights.”

“The first time you could lose your gun up to a year, and then they determine if you’re going to get it back. So you’ve already lost it for a year,” Pine Tree Rifle Club President Paul Catucci added. “I know people that are members of this club that rely on hunting to feed their families. Let’s face it, we live in Fulton County and we’re not the wealthiest county around and there are people that rely on hunting to feed their families.”

The positives

Fulton County Sheriff Richard Giardino as seen in his office on Wednesday morning. (The Leader-Herald/Josh Bovee)

Nevertheless, there is at least some evidence to suggest that red flag laws are effective, particularly when it comes to firearm suicides.

Of the roughly 35,000 annual deaths that occur in the U.S. each year as a result of firearms, about two-thirds of those are suicides. Statistics from several red flag states have shown a decrease in firearm suicides since the passing of the legislation.

However, according to Fulton County Director of Community Services Ernest Gagnon, evidence of the law’s effectiveness is limited due to both a lack of national studies and because it is very difficult to prove the cause of something not happening.

“If you look at red flag states, you’re trying to limit access to people who are suicidal or may be dangerous to others. The statistics show that it does help prevent what you would expect to have happen,” Gagnon said. “The trouble here is you’re trying to say, ‘If I had 100 cases and I did a red flag clause and I now only have 75, did the red flag clause eliminate that 25 that never happened?’ It’s very difficult to show that. You’re trying to prove a negative.”

For Gagnon, the red flag law’s usefulness in preventing suicide is enough to merit its existence, despite its potential for abuse.

A sign outside the Pine Tree Rifle Club on Wednesday. (Josh Bovee/The Leader-Herald)

“It’s like any law. Any law can be abused. We see that all too often. There’s always the possibility that [the red flag law] can be abused. But if it will stop one suicide, to me that’s worth it,” Gagnon said.

Does the law prevent mass shootings?

But the question remains, to what extent do New York gun laws prevent violent crimes including mass shootings — as these are often the pretenses under which gun control legislation is passed. Since the NY SAFE Act took effect in 2013, the rate of violent crimes involving firearms in New York state has decreased and the state, as a whole, has not seen a major mass shooting with multiple fatalities since at least 2012.

However, as with suicide rates, it is very difficult to prove that a decrease in gun violence is attributable to gun control laws, as correlation does not equate to causation.

Catucci said he believes that not only is the NY SAFE Act discriminatory against law-abiding gun owners, but that it is also largely superfluous, as according to him, it simply restates gun laws that are already on the books in New York state.

Guns at Frank's Gun Shop, 3831 Route 30 in Amsterdam, are shown on Aug. 20. (The Leader-Herald/Josh Bovee)

“[The NY SAFE Act] was just rehashing old laws that they don’t follow properly anyway,” Catucci said. “There were always background checks. We always go through the FBI, so it’s just a rehashing of that. It’s only making it more difficult for the legal gun owner to purchase another firearm, which you’ve already got one, it doesn’t make any sense to go through it again. We’ve already been checked out, now we’ve got to get checked out more?”

Giardino said that the problem with the NY SAFE Act, in his estimation, is that it disproportionately discriminates against law-abiding gun owners, who he says are statistically less likely to commit a crime with a lawfully obtained firearm.

“In my 18 years as a judge, I revoked probably less than seven or eight pistol permits for people actually using a lawfully possessed handgun in a crime. So statistically, pistol permit holders rarely use a licensed handgun in a crime,” said Giardino. “The vast majority of pistol permit owners are law-abiding citizens. And so what they are punishing is the law-abiding citizen because the criminals are always going to get the guns. One of my biggest arguments is if you look at Detroit, Chicago and Baltimore, they have some of the strictest firearm restrictions in the country and they have some of the highest crime rates involving firearms. So there’s no direct correlation that the more laws you have the safer it’s going to be.”

Giardino said he believes the NY SAFE Act was passed unconstitutionally and that ultimately he doesn’t have the resources available to ensure each and every person is following the stipulations of its rules. Nevertheless, he does encourage gun owners to abide by its stipulations.

“I opposed how it was passed, but I think people should always comply with the law because it’s the law,” Giardino said. “But my experience tells me that law-abiding citizens aren’t the ones who are committing the crimes. I think that the fundamental problem I have with the SAFE Act is it criminalizes activities by individuals who have never committed a crime before and lawfully possess firearms.”

The mentally ill and guns

Giardino did say, however, that the SAFE Act’s ability to prevent those with mental illnesses from obtaining a firearm is a good thing.

“I think the screening part of [the SAFE Act] for mental health cases can be very beneficial because you can’t count how many people didn’t commit a crime. It may have prevented mentally ill [people] from getting handguns — which is good,” Giardino said.

Gagnon, who is responsible for filing and verifying reports to the state in Fulton County regarding mentally ill individuals deemed a danger to themselves or others in accordance with the SAFE Act, also believes the law is useful in keeping firearms out of the hands of those who could abuse them.

“Yes, I think [the SAFE Act] does help reduce those numbers in that you are reducing the ability of someone on a spur of the moment, in a very emotional state to do something very rash,” Gagnon said.

But both Gagnon and Giardino agreed that there is less of a correlation between individuals with mental illness and mass shootings.

“Statistically, [the] mentally ill are less likely to use a weapon than many groups in the population,” Gagnon said. “Generally, people who do it tend to be very angry. If you look at the latest mass shooters, they all had anger issues. Some of them did have mental health histories, but just because someone is mentally ill does not mean they are violent. There’s not a very good correlation there, but there are groups that that’s all they want to focus on.”

Giardino concurred, saying that “statistically, with active shooters, probably less than 10 percent of individuals are diagnosed mentally ill prior to a shooting. The highest that we know is it’s individuals who have grievances. It’s a grievance mentality like everyone’s out to get me.”

When asked whether or not he feels the relative lack of mass shooting incidents in New York could be attributed to the SAFE Act, Giardino answered simply that “I think we’ve been fortunate. What stops a shooting is alert citizens who see something and say something.”

Mass shootings

Catucci and Splittgerber said mass shootings are nothing new in America and that it is the work of mass media and instant access to information in conjunction with a degradation in social morality, exasperated by violent video games and television that has created the current situation in America.

“Mass shootings have actually been going on all throughout history, except now that we have mass media the instant information, it’s out there,” Splittgerber said. “[There’s been a] breakdown of social morality. We used to have civics in high school. We no longer have civics class. Within civics we were also taught social morality. They don’t teach that anymore.”

“There’s not an answer for preventing mass shootings. It begins at home with mother and father teaching their kids. The ones that learn about guns from the time that they’re little are the ones that don’t get in trouble,” Catucci added. “It’s the ones that are curious about them that find it in a closet and end up shooting their friends because they haven’t been educated. Education is the most important thing, which is why here we do several courses. Education is the most important thing and that’s the part that ought to be continued.”

Catucci insisted that many of the New York gun laws do nothing to further prevent mass atrocities, but instead strip away second amendment rights of law-abiding citizens.

“[New York state gun laws] are taking away your second amendment. Everything is going against it, and if you lose the second amendment, you’re going to lose the rest. Some people don’t realize that.”

Still, there are many, including Gagnon, who believe a limitation on assault-style rifles is necessary to preventing mass shootings.

“I don’t see a need for heavy magazines. You’re not supposed to shoot the trees down between you and the deer if you’re out hunting,” Gagnon said. “To me all they’re going to do is hurt a lot of people if they’re used the wrong way, and we’ve seen that in many of the mass shootings. They’re able to get a lot of bullets out very quickly. I just don’t see a reason for that. To me it’s more about what is the safe way to participate in the sport? I don’t want to restrict anyone’s rights, but I want it to be done safely.”


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