Red Flag Law takes effect Saturday

LISTEN: Legal analysis from Paul Cambria

Mike Baggerman
August 23, 2019 - 3:00 am

BUFFALO, N.Y. (WBEN) – While New York State’s intention is to lower the probability of a mass shooting, or any shooting, by implementing the red flag law, opponents of the new law argue that it infringes upon their second amendment right to bear arms.

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.

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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.

WBEN legal analyst Paul Cambria expects judges to err on the side of caution when it comes to the temporary order.

“A judge would rather be right than wrong when making a determination,” he said. “What that means to me is that the judges will probably grant these on a temporary standpoint just in case the person is dangerous. Even though there’s a probable cause standard, it may very well be this is almost automatic on the temporary order.”

He said there are questions over the proof standard of the law.

“If it’s going to be probable cause, that’s not an insurmountable standard,” he said. “That’s a usual standard, by the way. It’s used for arrest warrants and search warrants and so on. The argument is that it’s no greater or less of a finding than necessary to arrest someone. That’s going to be the issue.”

The law takes effect on Saturday. Cambria expects there to be abuses, particularly from those in some sort of domestic setting.

“People are going to come in and make accusations to take weapons away from the other side,” Cambria said. “Whether it’s a real fear or just as some kind of punishment.”

He expects there to be court reviews of the law over time, especially if there is a prevalent amount of abuse.

New York is the thirteenth state in the country to pass a red flag law.

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