How is New York State's 'red flag' law used on LI? Review after murder-suicide shows not much in Nassau, but Suffolk leads state

Use of New York's red flag law remains minimal in Nassau County compared with Suffolk County, according to a Newsday review after police suggested in the aftermath of a Syosset murder-suicide that the gun seizure measure potentially could have saved lives.

On Aug. 25, Syosset resident Joseph DeLucia, 59, killed three siblings and a niece before turning the same shotgun on himself, according to authorities.

The court database review showed that as of this past Sunday, Nassau County judges this year issued extreme risk protection orders involving 32 people, while Suffolk County judges issued orders involving 906 people. 

The review also showed that two years after legislation that strengthened the state law, Suffolk judges continue to issue more orders than judges in any county in the state. Suffolk was by far the most active jurisdiction in terms of using the law after its implementation had significantly increased by mid-2023, Newsday previously reported.

The red flag law, through the orders known in short as ERPOs, allows authorities to seize guns from people deemed a danger to themselves or others and bars those individuals from accessing or purchasing guns.

Nassau police said while investigating the deadly Syosset shooting that they were looking into possible mental health issues involving DeLucia. It happened two days after his late mother's burial while he was distraught over the potential sale of the home they had shared, according to investigators.

Police said they had responded to the family's Wyoming Court home in 2022 but determined DeLucia was not a threat then.

'Talk in the community'

But before the tragedy, there had been "talk in that community about the distress of this shooter" and that DeLucia decided "he did not want to leave his residence after his mom died," Nassau Police Commissioner Patrick Ryder said at an Aug. 26 news conference. 

"There was talk in the community, in the past, that if you hear shots fired, don't call the police, it'll be too late," he added.

Ryder also said: "There are laws that are put in place to make sure individuals that are suffering through some mental health issues, or current stress, that we can remove weapons. Like the red flag law. They're in place for a reason, and we're asking our communities to not sit back. Be our eyes, be our ears in those communities and let us know what is going on."

Police Det. Capt. Stephen Fitzpatrick, who leads the department's homicide unit, addressed the same issue during the news conference.

"As the commissioner said, if anybody has somebody that they think has issues, they should be calling us. We're not saying this incident could have been averted, but maybe it could've," he said.

Court records show that last year Suffolk County judges issued ERPOs involving 1,742 people and Nassau County judges issued such orders involving 28 people. Across the state, judges issued such orders involving a total of 5,000 people.

Nassau police spokesman Lt. Scott Skrynecki said information about the number of applications the department filed for such orders last year and this year was "not available at this time."

He added that the orders are used when a family member or friend has concerns about a gun owner's mental health and there are no other legal options available. The spokesman didn't respond to a question about how the police agency is using the law.

Last year, Suffolk police filed 1,826 requests for ERPOs, followed by 996 requests this year as of Tuesday, according to an agency spokesman. He added that officers responding to emergencies pursue ERPOs when there is credible evidence a person is likely to cause self or public harm and that the department's legal bureau is on call around the clock to review ERPO requests. 

Introduced in 2019

An ERPO starts with someone filing an application in State Supreme Court. An order that can result is a civil matter and carries no criminal penalties.

There are two types of orders: a temporary order a judge decides whether to grant the same day it is sought, and a final order that can be granted three to 10 days later after a hearing. Both orders allow police to confiscate guns from a person determined to be at risk. 

New York's red flag law initially passed in 2019, legislation that encouraged law enforcement officials to apply for ERPOs and also allowed for household members, relatives and school officials of an individual who potentially posed a danger to file for them.

Gov. Kathy Hochul signed an executive order in 2022 beefing up the law after an 18-year-old white supremacist killed 10 people at a supermarket in a predominantly Black neighborhood in Buffalo.

In that order, Hochul required State Police to apply for ERPOs when there is sufficient evidence people are at risk of self or public harm. Weeks later, the Democratic-dominated State Legislature passed a law expanding the executive order that now requires all law enforcement agencies and district attorneys to file applications in such circumstances. It also added health professionals to the list of people allowed to file for such orders.

'A great tool'

Some experts said use of the red flag law can save lives.

Lisa Geller, senior adviser for implementation at Johns Hopkins Center for Gun Violence Solutions in Baltimore, Maryland, pointed to an August study in the Journal of the American Academy of Psychiatry and the Law that found it takes roughly 17 ERPOs to prevent one potential suicide. The study looked at 4,583 ERPO cases in four states: California, Connecticut, Maryland and Washington.

Geller said that while public awareness about the law in New York and some other states remains low, outreach and training should focus on select groups: law enforcement officials, judges, mental health providers and physicians. For the red flag law to work, there has to be regional support behind it, she added.

"What we do think it comes down to is, of course, awareness about the law and also having a champion, or someone in that jurisdiction or county that is willing to use it, and interested in using it," Geller said. 

Former Suffolk County Police Commissioner Geraldine Hart said in an interview that she immediately embraced the law in 2019 as head of the police agency.

Hart said she coordinated training with her officers and a county attorney, who the department later brought in-house to provide closer guidance on when the law could be applied.

Hart said she also reached out to school superintendents and community members about a tool she said she believes is especially helpful in cases that sound alarms but don't rise to a criminal level. 

"When the hair on an officer's neck stands up, and they know that there's something wrong, but they don't have enough for an arrest, can we intercede in the path of violence and disrupt it?" said Hart, now associate vice president of Public Safety and Community Engagement at Hofstra University. "We thought that this was a great tool."

"A lot of people weren't aware in the community that this had become a law in 2019, so a lot of our efforts were educating the community, educating our officers," she added.

Concerns about rights

Some people remain skeptical of the law’s effectiveness and are concerned it violates rights.

In March, a state appellate court upheld the law’s constitutionality, reversing a lower court's order in a case involving an Orange County man.

He had argued the law violated the Second Amendment of the U.S. Constitution and various due process protections after police confiscated his shotguns following an accusation that he pointed a loaded gun at a neighbor during a 2023 verbal dispute.

Warren Eller, a professor at John Jay College of Criminal Justice, said he is generally supportive of the law but called it something that "at best" has a marginal positive effect.

Hofstra University law professor Elizabeth Nevins said she remains concerned about people's "due process protections" despite the red flag law's intention to protect individuals and the public.

"Like any process like this, it can be abused by somebody with an ax to grind," she added.