BUFFALO, N.Y. -- Among the changes made to New York's Red Flag Law last month, law enforcement and district attorneys are now required to file Extreme Risk Protection Order petitions when they acquire credible information that individuals are likely to harm themselves or others.
"Since the new modifications of the Legislature, we've started to get more phone calls but we haven't actually been a petitioner yet," Erie County District Attorney John Flynn said.
Flynn said the law does not require his office to file a petition if someone else is already doing it. To this point, he and his staff have mostly been serving the role of consultant.
"My policy here is we're going to have law enforcement still do it, we're going to have a family member still do it, a school administrator still do it. If none of them are willing to do it and we find out about it, we'll step in," he said.
Flynn said his office and law enforcement in the region have been proactive about applying for ERPOs since New York initially instated a Red Flag Law in 2019. For that reason, he said there hasn't been a major uptick locally.
However, he said he recognizes there were holes in the legislation that for instance failed to prevent the alleged mass shooter at a Buffalo supermarket from being flagged even though he wrote an essay about murder-suicide while in high school in Broome County. Flynn is now prosecuting that suspect.
"Across the state, I think that these changes are good and I think that these changes are going to make the system work better, absolutely," Flynn said.
Earlier this month, the president of the New York State Bar, Sherry Levin Wallach, wrote an op-ed arguing the Red Flag tweaks did not address the root cause of why its been used sporadically. She said the application and hearing structure raise privacy, due process and right to counsel issues.
"I recognize her concerns," Flynn said. "I don't think that it is as big a problem as she's making it out to be though, quite frankly."
He said while his office, town or school district attorneys do sometimes serve as consultants, there are many cases where neither side has a lawyer present. Flynn doesn't believe counsel is always necessary during the Red Flag process.
"You have official judicial proceedings here with a sitting New York State Supreme Court judge who is going to make sure everything is done on the up and up," he said.