When an 18-year-old with a history of threatening violence walked into a gun shop in January and purchased the AR-style weapon he used to kill 10 people at a Buffalo supermarket Saturday, New York State’s “red flag” law should have stopped him.
“It is shocking to me that an extreme risk order was not applied for and the shooter was able to obtain a gun,” David Pucino, deputy chief counsel for the Giffords Law Center to Prevent Gun Violence, told VICE News. “I don't think it's a failing in the letter of the extreme risk law; it just seems like nobody thought to apply for such an order.”
In 2019, New York legislators passed the state’s red flag law, which allows law enforcement, district attorneys, and even regular citizens to file what’s known as an “extreme risk protection order” to the court system about individuals who pose a threat to themselves or others. If approved by a judge, the reported individual can no longer purchase or own a weapon in the state.
But it’s not clear whether anyone filed one of those orders for the accused Buffalo gunman, who had a history of the kind of behavior that should trigger the use of the law. When asked Monday why the law didn’t impact his ability to buy his Bushmaster rifle, Gov. Kathy Hochul said the state was currently investigating.
Assault-style weapons are also typically banned in New York, but the Bushmaster-XM-15 that the gunman bought had a workaround: The state mandates that if the gun has a fixed magazine limiting its firepower to 10 bullets per round, it can be bought and sold legally—even to an 18-year-old, according to Pucino. (On the other hand, New York State mandates anyone purchasing a handgun must be 21 years old.)
The Buffalo shooter, however, was able to modify the weapon by removing the lock with his dad’s power drill, according to posts he published online, authorities say. That allowed him to attach the illegal, larger-capacity magazine that would otherwise be incompatible with the weapon.
New York State police visited the alleged gunman, who was 17 at the time, last June after he allegedly said in class that he wanted to commit a murder-suicide after he was asked about his plans after high school graduation. He was then taken into custody and transported to the hospital for a mental health evaluation, although he told authorities that he was joking, according to the New York Times. The shooter was released a day and a half after state police first took him into custody, according to Buffalo police commissioner Joseph Gramaglia.
That kind of evaluation is exactly what red flag laws should pick up—but someone has to alert the courts first. Unfortunately, that doesn’t always happen. For example, in Indiana, which also has a red flag law, a prosecutor failed to file a risk order against a man who later shot and killed eight people at a FedEx packaging warehouse, despite warnings about his mental instability from his mother.
“The people with the best knowledge often aren't taking the appropriate steps, even if they're aware of what's going to be available,” said John Donohue, a gun policy expert and a law professor at Stanford University.
“And what that indicates is a lack of education and awareness among law enforcement and among others about the availability of the civil remedy,” Pucino added. “It should be highlighted, incorporated into the training, and emphasized repeatedly that this is a tool available to law enforcement and medical professionals.”
Other countries, especially those in Europe and Australia, have more effective methods of preventing at-risk individuals from getting or owning guns, according to Donohue. But because of human error and a lack of oversight, the U.S. struggles.
“When this guy was identified as someone who was making threatening statements, in most other countries that we would think of as our competitor nations, that would be enough to prohibit that person from ever getting a gun,” Donohue said. “You wouldn't even need any sort of special law.”
“The red flag laws are put in place with a consideration of how to still protect the rights of people to get guns,” he continued. “And so it does make flagging these individuals a much more cumbersome procedure than it needs to be.”
State Sen. Brian Kavanagh, the Democrat who wrote the bill that eventually became New York State’s red flag law, told VICE News that even though the state has the infrastructure in place to prevent dangerous individuals from purchasing guns, there’s clearly room for improvement.
“We can learn something from this horrific event about a lack of awareness of this law,” he said. “We can learn something about choices that people make about whether to use the law. And, it's possible that there are some additional changes or additions we can make to the law itself.”
In the shooter’s manifesto, posted online a few days before the shooting, he signaled that he’d targeted Buffalo, a city three hours from his hometown of Conklin, New York, because it was predominantly Black. The attack, which injured 13 people total, 11 of whom were Black, had been planned for months, according to a Discord server used by the shooter and uncovered by authorities Saturday. The shooter also livestreamed the violence on Twitch, and copies of those videos continue to proliferate online.
The Bushmaster rifle was also the same Remington-manufactured weapon used in the Sandy Hook Elementary shooting a decade ago. Last year, Remington Arms settled a liability case filed against it and was forced to pay out $73 million to the victims of the Sandy Hook shooting.
The Buffalo gunman was taken into custody shortly after the shooting and has since been charged with first-degree murder. If convicted, he faces life in prison without the possibility of parole.
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