Moms Demand Action and anti-gun activists gathered in Foley Square in New York City on August 18, 2019, demanding that U.S. Congress finally take steps to address the gun crisis in the United States, and pass background checks and a Red Flag law. (Photo by Gabriele Holtermann-Gorden/Sipa USA)(Sipa via AP Images)

New York's "red flag" gun law, set to take effect this Saturday, will require judges in each county of the state to evaluate whether persons should be temporarily suspended from owning or buying a gun based on their potential risk of harming themselves or others.

The law gained national attention as federal lawmakers considered, in recent weeks, replicating the idea on the national level as a response to the recent mass shootings in Ohio and Texas. 

New York isn't the first state to enact such a law. Fifteen other states also have similar measures, most of which were enacted after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, last year. 

The law in New York will allow law enforcement, a state prosecutor, a family or household member, or certain school employees to file an application in the state Supreme Court of each county to request that an individual be temporarily suspended from owning or buying a gun. 

That's called an Extreme Risk Protection Order, which can remain in effect for up to a year, according to the law. The order can be renewed at the end of that term, but the length of an initial order is capped at a year.

The enacting legislation was sponsored by state Sen. Brian Kavanagh, D-Manhattan, and Assemblywoman Jo Anne Simon, D-Brooklyn. Kavanagh said he's spoken to state court officials about the new law, and expects a smooth transition starting Saturday.

"I think the courts are set up to deal with a very wide range of petitions and procedures. I've spoken personally with Chief Administrative Judge Lawrence Marks and they have been actively preparing," Kavanagh said. "There will be somewhat of an education process that needs to go on, but we think the courts are ready."

The process for obtaining such an order is more complicated than it sounds, and requires more steps than just filling out an application and submitting it to the court.

Application forms for such an order, and detailed directions for filing that request, have been made available by the state Office of Court Administration on its website, under the section that directs users to forms.

An emergency phone number (1-800-430-8457) has also been made available by the state to help applicants through the process if they need to file outside of regular business hours, according to the OCA.

Aside from filing a few forms with the court, applicants are also advised by the OCA to include any documents that might support their argument to suspend an individual's ability to own or buy a gun. That might include digital messages, or other corresponding evidence.

An order application will be heard by a judge in each county the same day that it's filed, according to the OCA. Special judges have been assigned in each county to hear those applications, the OCA said, and they've received training on the new law. Court clerks have also been trained on the statute.

The first hearing is to determine whether the judge will issue an immediate, temporary order, lasting only a few days, that would suspend an individual's ability to own or buy a gun. The subject of the order is not required to attend that hearing, and likely won't since he or she is not notified if an application has been filed.

During that first hearing, judges will have to consider a handful of factors in deciding whether to immediately suspend a person's ability to own or buy a gun. Among them will be whether that person has threatened violence against himself or others, or if he has violated an order of protection.

Judges can also expect to consider whether a person has a pending charge or conviction related to the use of a weapon, has a drug problem, or recently purchased a gun.

If the temporary order is approved, a member of law enforcement will immediately serve it on the subject and ask that the subject immediately surrender any guns currently in the subject's possession. Officers can also perform a lawful search while issuing an order.

If the application is rejected, the subject of the order won't have to give up any firearms, but will be notified that another hearing will be held in the coming days on the ability to own or possess a gun. 

The second hearing is held, regardless of whether the temporary order is approved, to decide whether a final order will be issued. That's the one that can last up to a year, with the opportunity for renewal.

If a temporary order is issued, the second hearing will be held within three to six days later, though a respondent can ask for more time to prepare if needed. If there is no temporary order, the second hearing is held within 10 days of the initial decision unless more time is requested.

The second hearing is different than the first. For one, the subject of the order will be present, possibly with an attorney, to defend against the order.

The burden at the second hearing is on the person, or member of law enforcement, who filed the application to prove, "by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others," according to the law.

The same factors considered during the first hearing will be used by the judge in the second hearing, as well as any evidence presented by both the applicant and the subject of the order. The judge may also consider any relevant reports filed by a law enforcement agency.

A final order can be set for up to a year, but the subject of that order also has the option to appeal it to a higher court. The subject is also allowed to file a one-time motion with the trial court for another hearing to request a change in the order.

Those orders will be issued by judges who are elected officials. Many may have been elected to the bench by constituents that have been wary at times of new gun control measures in the past.

Kavanagh said he's confident that politics won't change how judges evaluate whether to approve an application for an order.

"I think our court system is equipped in all parts of the state to make important judgments about people's rights and obligations, and there are significant rights at stake," Kavanagh said. "We wrote a bill with very careful due process protections in it."

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