Flynn assures he will use "common sense" on red flag law

Controversial law goes into effect on Saturday

Mike Baggerman
August 22, 2019 - 12:16 pm

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BUFFALO, N.Y. (WBEN) - Erie County District Attorney John Flynn promises to use common sense when it comes to enforcement of New York's controversial Red Flag Law.

The law passed by the state legislature and signed by Governor Andrew Cuomo in February prevents individuals who show signs of being a threat to themselves or others from purchasing or possessing any kind of firearm. State politicians pushed through the law in the wake of mass shootings in the country and a further need to protect the lives of people.

The Red Flag Law goes into effect on Saturday.

"If (someone) knows or recognize that an individual is having trauma, has mental illness, has a drug or alcohol problem...if this individual has some type of problem with, additionally, the means to carry it out, i.e. they own a gun or possess a gun, if you put two-and-two together and address that problem, hopefully we can prevent further mass shootings," Flynn said. "I need to do whatever I can to make sure that we don't have in Buffalo and Erie County a situation that happened in El Paso, Dayton, Parkland, Littletown, Las Vegas."

An individual can have their gun taken away if a person files a petition in civil court. Family members, school administrators, and various lawyers can file the petitions. Using probable cause, the judge will then immediately file a temporary order which will then allow authorities to seize the weapon of the person accused. Between three and six days later, a hearing will be held, where "clear and convincing evidence" would need to be presented in order for the guns to remain out of a person's possession. If a judge is convinced of the evidence, that person would lose their right to have a gun for a year.

Someone who has their guns taken from them cannot purchase a weapon while the order is in effect.

Due process for gun owners is among the most common criticisms of the law. Flynn said he will act as a protector for those gun owners by ensuring common sense.

"I believe there are safeguards in place to protect someone's rights," Flynn said. "You have an initial court appearance, then a hearing later with an elevated standard of proof."

In the past, only a person who was arrested and charged with a crime could have their guns taken from them.

Flynn said that a vindictive person, who is simply accusing another person of being a danger in an attempt to take their guns from them, could be charged with filing a false instrument and face one to three years in prison.

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