To be clear, Sherry Levin Wallach isn’t opposed to “red flag” or Extreme Risk Protection Orders in theory. But the head of New York’s bar association says that before New York expands the law, which was first approved in 2019, it must fix a number of “significant deficiencies,” and surprisingly (to me, anyway) most of the concerns she lists are the same that are shared by many critics of the gun seizure laws.

In a new op-ed, Wallach points to several problems with the law that the state bar association highlighted in a 2020 report; concerns that she says the state has yet to address.

The report noted that the law lacks protections attached to a criminal action that could arise as a result of an ERPO — a civil proceeding — potentially resulting in criminal jeopardy for the respondent. In addition, there is no right to counsel in an ERPO civil proceeding, which could lead individuals to engage in self-incriminating conduct if, for example, a criminal charge results from illegal weapons or substances found during the search process.

Further, New York’s Red Flag Law requires judges to make rulings regarding a person’s mental state without requiring a professional psychiatric evaluation, and forces individuals to represent themselves if they can’t afford an attorney or don’t understand the necessity for counsel.

If an ERPO respondent does face one or more criminal charges and can’t hire legal counsel, their ability to access assigned counsel services has been significantly curtailed by the state’s refusal to raise compensation rates for 18-B lawyers, leading to marked reduction in participation.

The lack of a right to a public defender is a common feature of almost every red flag law on the books because, as Wallach notes, these proceedings take place in civil, not criminal court. Given the reduction in the number of attorneys willing to serve as “assigned counsel”, there’s no quick and easy fix available for the state, but that doesn’t mean that keeping a broken system in place is the answer either.

What’s most fascinating to me about Wallach’s objections is that the New York State Bar Association isn’t exactly known for its robust support for the right to keep and bear arms. In fact the 2020 report that she cites is chock full of “recommendations” on how to prevent shootings that would likely run afoul of the Supreme Court’s “text, history, and tradition” test laid out in the Bruen decision.

• Ban the possession, sale and manufacture of assault-style weapons
• Ban large-capacity magazines that hold more than 10 rounds of ammunition
• Ban bump stocks and other devices that effectively enable semi-automatic firearms to be fired in fully automatic mode
• Ban firearms manufactured without a license and without a serial number
• Enact universal background checks for all gun sales, private and through licensed dealers
• Expand the time for background checks to be completed before finalizing gun sales
• Require gun owners to obtain a license as a purchase and possession requirement for all types of firearms, rifles and shotguns
• Expand the category of individuals who are prohibited from purchasing or possessing guns
• Close reporting loopholes to ensure all disqualifying data is reported to the National Instant Criminal Background Check System (“NICS”)
• Enact laws that provide for Extreme Risk Protection Orders (“ERPOs”), i.e., “Red Flag” laws
• Impose penalties for failure to notify the authorities of stolen or lost guns
• Impose penalties for unlocked/unsecured guns in certain circumstances
• Affirm that intermediate scrutiny and preponderance of the evidence proof apply to gun laws that do not substantially burden core Second Amendment rights
• Educate the public regarding gun legislation and their rights to seek protection in situations of domestic violence
• Promote and fund research and data collection regarding gun violence, including mass shootings

I’m especially amused by the bar association’s recommendation that the state should affirm that “intermediate scrutiny and preponderance of the evidence” is enough to impose any gun control restriction. The Supreme Court slapped down that idea a few weeks ago and specifically called out lower courts for ignoring the guidance in Heller and McDonald in favor of a two-step, tiered-scrutiny approach that allowed judges to uphold all kinds of infringements on the Second Amendment as long as the state tried to justify their laws in the name of public safety.

Given all of the infringements on the right to keep and bear arms that the bar association is cool with, it’s pretty amazing that Wallach actually takes issue with the current state of New York’s “red flag” law. If she truly wants to protect New Yorkers from abuses on the part of the state, however, she should go beyond the editorial pages and start authoring amicus briefs in support of the current and pending challenges to New York’s new gun control laws. The state’s ERPO law is definitely flawed, but it’s far from the only problematic statute in place.