Given the incredible week for America, with breakthroughs in US-North Korean relations and revelations from the long awaited Department of Justice Inspector General report, it’s no surprise that the majority of New Yorkers missed the actions of Gov. Andrew Cuomo. It was in this week that unprecedented restrictions on American liberty were attempted to be slipped past the public. It was in this week that the issue of “Red Flag” laws were pressed upon the NY State Senate in the last step before being inflicted on the public.
Perhaps the first thing to understand is what is a “Red Flag” law. According to 5 Bills (A03661, A11148, A08976, S07133, S04824) currently in various stages in the New York State legislature the definition is consistently
“Establishes extreme risk protection orders as a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun and establishes procedures for the application, administration, and expiration or termination of such protection orders.”
Another key definition to keep in mind is the Due Process Clause. It is part of the Fifth Amendment and is defined,
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Thus in laymen’s terms, a “Red Flag” law, also known as ERPO or Extreme Risk Protection Order, is a form of gun control legislation that by function eliminates the 2nd Amendment Rights of Americans, purposefully denies Due Process, while violating the 4th Amendment. Said another way, an ERPO gives the Government the power to break into a home and take all firearms without warning or a day in court.
Obviously context is required to understand this, because as the saying goes – “The devil is in the details.” It was January 30, 2017 that the first Extreme Risk Protection Order was submitted to the New York State Assembly for consideration. The Bill, A03661 was the first attempt under this concept to restrict firearm ownership under a plea to protect the public and ensure safety. Part of the legal ramifications are that a person, who is deemed a danger to themselves or the public, can have firearms in their possession seized by the Government, as well as they are prevented from possessing any new firearm.
Such seizure, under this specific Bill (the other bills allow for slightly different conditions as we will discuss), can be initiated by the verbal statement of a family member, a police officer, or a roommate. It is valid if there is an act or threat of action of violence by the person in question – which could include verbal arguments, statements on social media, text, or other communication. So, an argument with a (ex-)significant other, in person or on Facebook or via text, can be both cause and justification for the Government. It can be that simple according to the Bill A03661 as submitted.
It is important we understand that this is just one of the Bills working through the legal system. Currently 4 additional Bills were created since 2017. Those Bills expanded the proof to justify the ERPO, as well as those who could make the initial claim. By June 8, 2018, Bill A11148 was expanded to include teachers, school nurses, and/or part-time temporary coaches among others. Proof of the claim of danger grew to include buying ammunition, or purchase of a “deadly weapon or dangerous instrument”. This Bill was passed by the NY Assembly on June 13, 2018 in a vote of 108-30. There are 104 Democrats, 41 Republicans, 1 Independent and 4 vacancies in the NY State Assembly at this time.
Thus, the ERPO promoted most recently (A11148) means that an argument on Facebook with a temporary part-time kickball coach is all that is needed to have NY courts compel police to raid a home for every firearm owned. The fact a person impacted by the Red Flag bought a baseball bat, or a set of steak knives is all the verification needed to prove the case against them. All without any prior notice or option to defend yourself. But it doesn’t end there, as we will explain.
In this latest version, that may be of great concern to the public, Gov. Cuomo has been pushing to have this specific Bill passed hurriedly as described by the NY Post on June 5, 2018 and again on June 11th. The message to Republicans in the Senate, as made by Gov. Cuomo is directly,
“Either you do the responsible thing or we will find somebody that will.”
Why the rush? Why the threat of re-election loss? It could be the fact that if there is a delay the argument, made by opponents of the Second Amendment, that teachers are not law enforcement officers applies directly to this ERPO. As stated by NYPD Commissioner James O’Neill, in opposing the suggestion of arming teachers in New York schools, said,
“This is what law enforcement does, and you should leave it to law enforcement to protect the children of New York City.”
But if teachers are either unqualified or incapable of acting as law enforcement officers while teaching, wouldn’t they equally be inefficient or ineffective as prosecutors of law? Assuming teachers, or even part-time coaches as Bill A11148 allows, have the time and capacity to take on this role. As Peter Blake, the Rome City School District superintendent, stated about arming teachers that can equally apply to Extreme Risk Protection Orders,
“I personally think it’s a terrible idea. Teachers have enough on their plate. There’s a litany of things that could go wrong.”
In fact, few are aware of the existence of Red Flag Bills or the consequence of the emotional plea being offered by Gov. Cuomo. A direct consequence is that if Bill A11148 were to pass, as an example, and the part-time temporary kickball coach were to call for removal of firearms from a home the impact would not end there. Unstated by Gov. Cuomo is the fact that Child Protective Services would be compelled to take action (courts, police. and teachers are required to report to Child Protection Services).
If a danger to a household and community exists to the extent that police and courts must take action, then that same household is far too dangerous, under NY law, to allow children to be present. The definition of child abuse in New York includes:
“Creates or allows to be created a substantial risk of physical injury to the child by other than accidental means which would be likely to cause death, serious or protracted disfigurement, protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ;”
Yet there is another factor that has been actively unspoken by Gov. Cuomo and ERPO supporters. What about racial profiling and discipline disparities in schools? What about teachers disproportionately selecting homes of disabled and minority children – whether in affluent or inner city schools. As the Government Accountability Office (GAO) reported on March 22, 2018, children of color and those with disabilities are overrepresented in disciplinary actions. All 5 Red Flag Bills in New York are just additional forms of discipline. Passage could well just add to the forms of disparity already in existence, fueling even more outrage by Far Left organizations focused on such data.
Imagine that the prior example were to include the results of the GAO. Imagine that across the State, part-time temporary kickball coaches, or school nurses, or school administrators were to call for removal of firearms from minority homes without Due Process, resulting in the children of those homes being removed by CPS. Imagine that happens at a rate 23% more than any other group of children.
But given such vague conditions, and extreme repercussions, what politician would be willing to vote for such Bills? Actually a great number of them apparently. Shockingly, even some of the highest NRA rated members of the NY Assembly have already voted for the Red Flag Bills – which the NRA is currently fighting.
NY Assembly members Anthony Brindisi, Cliff Crouch, and Donna Lupardo are just 3 of many examples of the flip-flop on firearm legislation in New York. Clifford Crouch, a Republican representing the 122nd Assembly District, with a 93% NRA rating in 2016 split his vote on Extreme Risk Protection Orders – voting in favor of the legislation (A08976), but against allowing teachers to be allowed to share power with police, roommates and courts (A11148).
Anthony Brindisi, a Democrat representing the 119th Assembly District, who raised his rating from 79% favorable on gun legislation in 2012 to 100% in 2016 based on his vote against the NY SAFE Act in 2013, has voted for 2 of the ERPO Bills that have come before the Assembly so far (A11148 and A08976).
Similarly fellow Democrat Assemblywoman Donna Lupardo, representing the 123rd Assembly District, had voted against the NY SAFE Act but voted in favor of the Red Flag Bills (A11148 and A08976). Her NRA rating also increased from 71% in 2012 to 93% in 2016.
But the list of NY Assembly members continues to include another 8 members at least at this time. These Assembly memebers are in both Parties. They have claimed strong or moderate pro-Second Amendment stances (and use their ratings with the NRA to prove support) and have voted for at least one of the five Extreme Risk Protection Orders under consideration at this time. A partial list includes: Dean Murray, Andrew Raia, Michael Montesano, Michael Miller, Aileen Gunther, William Magee, Gary Finch, and Al Stirpe.
Given these facts, the only questions remaining are what will State Senators do, and will the public get involved? If the public does raise its voice, which side will it take? With a Governor who has been crystal clear in his disdain for the 2nd Amendment, or in opposition of the Governor and defending the 2nd & 4th Amendments and the Due process Clause?