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NY red flag law ruled unconstitutional

A concealed handgun. (Dreamstime/TNS)
January 04, 2023

New York’s red flag law has been ruled unconstitutional, knocking down a key gun control measure as the state pushes revamped gun laws through the courts.

New York’s “Extreme Risk Protection Order” law, enacted in 2019, allowed people to request that firearms be temporarily seized from their owners if they’re deemed likely to seriously harm themselves or others. 

But in a late December decision, New York Supreme Court ruled the law “does not sufficiently protect a citizen’s rights” and is “hereby dismissed, in its entirety.” 

The ruling came as the state’s new gun control framework remains under a flurry of litigation after being overturned by a landmark Supreme Court ruling over the summer, as reported by the New York Times.

In the decision, New York Supreme Court Justice Thomas Moran wrote the law is unconstitutional because it “permits (and in some cases demands)” non-experts to make decisions which, “due to lack of education, experience, or expertise, they should not be authorized or capable of making.”

For its definition of “likelihood to result in serious harm,” the law relied on a similar mental health law that allows for involuntary hospitalization. But that law requires physicians to determine the likelihood of harm, while the “great majority” of red-flag-law referrals would come from non-expert law enforcement, attorneys, school administrators and family members and be decided by “lay people,” according to the ruling.

The court decided that in order to be constitutional, the red flag law would have to guarantee an expert determination from a physician, as the mental health law does.

Daniel Strollo, the attorney who fought the New York law, tweeted that he was “very happy with this result” and said it created a “very quick and easy mechanism to deprive somebody of their fundamental Second Amendment rights,” according to local outlet WHAM.

“You have people who are essentially not medical professionals expressing medical opinions that result in the deprivation of rights,” Strollo said. “And you have a procedure that essentially allows somebody to lose those rights without ever having gone in front of a judge.”

The “red flag” law is a signature gun control measure enacted in some form by at least 19 states, as reported by the Wall Street Journal.