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A brewing court fight will decide the fate of a 2019 New York state law that allows judges to bar access to guns for up to a year to anyone deemed suicidal or threatening to others.
Similar to safeguards in place in 20 other states and Washington, D.C., New York's "red flag" law aims to curb preventable shootings and suicides by enabling cops, parents and others to apply to the courts when they see clear warning signs. Judges have approved more than 6,400 orders since the law took effect four years ago.
But lawyers for people resisting those requests have challenged the law itself and — in some cases — found sympathetic judges: three declared it unconstitutional. Blocking firearms access without a doctor's opinion violates gun rights and due process, they ruled.
State Attorney General Letitia James is appealing three of those decisions, hoping to tamp down further challenges with higher-court opinions that affirm the law's validity. Her office filed its arguments in July in Appellate Division courts in Brooklyn and Rochester.
"The constitutional right to possess a firearm is limited to law-abiding and responsible persons, i.e., those who are not likely to engage in conduct that would result in serious harm to themselves or others," wrote Sarah Coco, an assistant solicitor general in James' office.
A string of outside parties are seeking to join James in court in support of the law, widening the latest skirmish in the national debate over gun restrictions.
One request to intervene was filed on behalf of the other states with red-flag laws and Washington, D.C. Another came from a pair of gun-control groups: the Brady Center to Prevent Gun Violence and the Giffords LawCenter to Prevent Gun Violence.
A third intervention request was made by three New York City district attorneys — Alvin Bragg Jr. of Manhattan, Melinda Katz of Queens and Michael McMahon of Staten Island — and Westchester County District Attorney Mimi Rocah. They called the red flag law a "valuable tool in the fight against gun violence."
What happened in the disputed cases?
One appeal case stems from a beef over a leaking bathroom that quickly escalated.
Middletown police responded to a clash between condo neighbors in January and wound up arresting 26-year-old Corey Monroe and confiscating his two shotguns. He was accused of pointing a loaded gun at a neighbor who had pounded on his door, furious about a complaint Monroe made to the landlord, according to the police report.
Orange County Judge Craig Brown approved an officer's request for a temporary extreme risk protection order against Monroe, the first step in a red flag case. But then an attorney filed a challenge on Monroe's behalf, citing a decision by another judge in December that declared the law unconstitutional.
Brown agreed. Not only did he refuse a final order, but he, too, called the law invalid on April 4.
Brown, who had granted similar requests before then, has since summarily dismissed all eight red flag cases assigned to him, declining to weigh the merits of each request - except in one instance - or issue even temporary orders, according to a USA Today Network review of his rulings. No arguments from lawyers were needed for those dismissals.
Among the orders he refused was one against a 13-year-old boy who told classmates on a school bus on April 11 that they "shouldn’t come to school tomorrow." According to New Windsor police, the same boy had other disturbing episodes in school, including attempts to strangle himself and swinging a chair and a pipe at other students.
He was far too young to buy a gun, but a red flag order would have required his mother to store safely any guns in their home. Brown rejected the application as soon as police filed it on May 4, saying the law was unconstitutional.
The attorney general has appealed that ruling and Brown's decision in the Middletown shotgun case.
What are the arguments?
Brown ruled that judges can't decide someone is likely to cause serious harm — the justification for a red flag order — without a doctor or mental health expert saying so. An order prevents someone from buying or possessing a gun and requires them to turn over any firearms they have.
Without an expert's mental-health determination, Brown concluded in April, the law "lacks sufficient statutory guardrails to protect a citizen's Second Amendment Constitutional Right to bear arms."
Two other judges also found the law unconstitutional. Thomas Moran, a Supreme Court justice in Monroe County, did so in December in a case in which a man asked for an order against his estranged girlfriend. Like Brown, he decided a doctor's opinion was needed before suspending gun rights and allowing police to enter a home and seize guns.
"A potentially mentally ill citizen should enjoy the (same) rights and privileges as any person of this state," Moran ruled.
At least three other New York judges have taken the opposite view, dismissing any claims of constitutional violations.
More than 20 legal challenges to the law have so far been brought, according to the attorney general's office.
How does the state defend the law?
State attorneys argue the law offers ample protections for gun rights, starting with the judge's ability to dismiss a request if no compelling evidence is shown, as they sometimes do. Orders may be sought by police, prosecutors, family or household members, school officials and medical professionals.
Before a final order can be issued, they point out, the court must hold a hearing at which the subject can have a lawyer and present evidence and witnesses to oppose an order. If they lose, they can appeal. If their appeal fails, they can regain their gun rights in a year.
The state also disputes the need for a doctor's analysis.
"There are numerous other contexts in which federal and state laws authorize findings of risk of harm and prohibit the possession of firearms without expert evidence or a finding of mental illness," Coco wrote in the state's appeal. "Such findings and orders are authorized, for example, when a domestic violence order of protection is issued and when someone accused of a crime is released pending trial."
What comes next?
The appeals of two Brown rulings are pending in Brooklyn with no clear timetable. No responses have been filed yet to the briefs the attorney general filed a month ago. In one case — the one involving the 13-year-old who allegedly made the school threat — no lawyer has stepped in to oppose the appeal and defend the judge's ruling.
The appeal in Rochester has been granted a sped-up review with an Oct. 25 court date. The opposing side is unclear in that case as well, with no response filed yet and no attorney listed in court records.
Chris McKenna covers government and politics for The Journal News/lohud and USA Today Network. Reach him at firstname.lastname@example.org.
This article originally appeared on Rockland/Westchester Journal News: NY red flag law focus of court fight over when to block gun access