Appeals court upholds NY red flag law against Second Amendment challenge

In a landmark ruling Wednesday, a New York appeals court upheld the state's red-flag law against a challenge to the law's constitutionality, the first New York appeals court to address this question.

The Second Department of the Appellate Division said in its decision that the red-flag law, which allows police to temporarily seize the firearms of individuals deemed to pose a danger to themselves or others, did not violate the U.S. Constitution's Second Amendment.

The U.S. Supreme Court held in its own watershed decision in 2022 that all manner of state gun laws are vulnerable to legal challenge under the Second Amendment unless a state can show that its restriction is similar to one from a previous era.

This "historical analogue" test has upended the way states can regulate firearms, sowing doubt about whether laws that protect the public from gun violence would continue to stand. In one case, one of New York's top judges has already called for a key state gun law to be stricken on constitutional grounds because of the Supreme Court's ruling.

But the Second Department's decision, written by Associate Justice Betsy Barros, pointed to the Supreme Court's new test in observing that New York's red-flag law "is consistent with the nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns."

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What are the details of the NY red flag case?

The case revolved around an Orange County man, Corey Monroe, whose two shotguns were confiscated by the Middletown police after he had been accused of pointing a loaded gun at a neighbor. Monroe was charged with menacing in the third degree.

Following the incident, Middletown Police Officer Robert Monaco petitioned Orange County Judge Craig Brown to issue a temporary extreme risk protection order, another name for a red-flag order. Brown issued the temporary order, which allowed Monroe's guns to be confiscated. But after Monroe's attorney challenged the law's constitutionality, Brown refused to issue a long-term order against Monroe.

Instead, Brown has since dismissed every red-flag petition that has been brought to his attention, according to the USA Today Network New York's earlier review of his rulings. The Second Department's decision overturns Brown's approach to these red-flag cases.

An attorney for Monroe, Derek Andrews, expressed his disappointment in the decision in a statement to the USA Today Network New York.

"We strongly believe that New York’s red flag law continues to lack sufficient and constitutionally-required procedural protections for people who might find themselves on the receiving end of such an order," Andrews said. "Mr. Monroe has a right to seek further review of this matter by the Court of Appeals. We’ll work with our client to decide whether such an appeal will be pursued."

Hochul has touted the red-flag law, enacted in 2019, as a key tool in keeping New Yorkers safe from gun violence.

"This is all about progress we're making in the fight to eradicate gun violence," she said at a press conference in 2022. "This is really a fight across our nation, and one that is calling all leaders to truly step up, as we have been, since I made this one of our top priorities becoming governor."

Asher Stockler is a reporter for The Journal News and the USA Today Network New York. You can send him an email at astockler@lohud.com. Reach him securely: asher.stockler@protonmail.com.

This article originally appeared on Rockland/Westchester Journal News: NY's red flag law upheld in key appeals court ruling