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Opinion New York’s red-flag law failed in Buffalo. Here’s how to fix it.

A child walks past a memorial on May 20 at the scene of the shooting at a Tops market in Buffalo. (Lindsay Dedario/Reuters)
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Ian Ayres is a law professor at Yale Law School. Fredrick E. Vars is a law professor at University of Alabama School of Law. They are authors of “Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.”

The shooting in Buffalo this month is exactly the sort of violence that New York’s “red-flag” law is meant to prevent. That the law failed to keep guns out of the hands of the alleged shooter should spur lawmakers in New York — and in other states — to strengthen such laws by requiring courts to consider two dangerous attributes: hatred and psychosis.

The 18-year-old White man who allegedly killed 10 Black shoppers at a grocery store in Buffalo was able to get his hands on a rifle even though law enforcement had referred him for a psychiatric evaluation after he made a threat to his school. That could have been enough for a police officer, family member or school administrator to petition a court for an “extreme risk protection order,” which would have temporarily removed guns from the shooter and prevented him from purchasing new ones.

But no such petition was filed in this case. That’s because New York’s red-flag law requires judges issuing such an order to consider as one factor “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person.”

Note that this factor is limited to a particular threat directed toward a particular victim. Law enforcement decided that the shooter’s threat to the school did not meet that standard. The Buffalo police commissioner explained that the threat was “general” in nature and not related to race.

This narrow approach limits the scope and effectiveness of red-flag laws. New York, as well as the 18 other states and D.C. that have red-flag laws, should modify their laws to include threats of violence directed toward groups of people. Courts should also have to consider a person’s use or endorsement of words, videos or symbols that connote hatred or threats toward members of a specific group with the intent to instill fear as well as paranoid delusions.

The Buffalo shooting is part of a broader rise in hate crime. Between 2019 and 2020, hate-crime incidents involving bias based on race, ethnicity or ancestry rose by 32 percent. The day after the Buffalo shooting, a man in California motivated by political hatred killed one person and injured five at a Taiwanese church.

Considering this type of hateful and threatening communication as part of the red-flag calculus would not offend free speech. “True threats” are not protected by the First Amendment. For this reason, the Supreme Court upheld an analogous state prohibition on cross-burning. Distasteful beliefs alone would not be enough to disarm people; they would have to express those beliefs in ways intended to harm others.

Meanwhile, mental illness is not inherently dangerous to others, but certain symptoms are. Paranoid delusions and threatening hallucinations in particular correlate with violence. One study described in our book found that individuals with such psychotic symptoms were more than five times as likely to attack someone with an intent to seriously injure. The Navy Yard mass shooter was one of those people; police knew about and ignored his paranoid delusions. Red-flag laws should be able to disarm such individuals.

Some might argue that under such a law, potentially violent people will just work harder to hide their hate or psychoses. But those who harbor deep feelings of enmity toward others or paranoid delusions about the world often feel compelled to express their views to others.

Racial hatred and mental illness are by no means mutually exclusive. Just days after the Buffalo shooting, a Black man shot and wounded three Asian women. His girlfriend told authorities that when he is near an Asian American person, “he begins having delusions that the Asian mob is after him or attempting to harm him.” More broadly, one psychiatrist has argued that extreme racism is itself a delusion. The “replacement theory” that apparently motivated the Buffalo shooter has at its core a kind of paranoid delusion, though it can be difficult to distinguish between conspiracy theories and delusions.

But while the two factors we propose can overlap in particular cases, the factors are distinct and independent. Not every racist is delusional, and not every delusional person is racist.

To be sure, our proposed changes might not have prevented the Buffalo shooting. The shooter’s violent racist threats might have escaped detection, even if New York’s red-flag law had instructed people to look for it. Nevertheless, these laws should be improved to reduce the risk of future racially motivated or psychosis-driven mass shootings. Laws are made for the future, not the past.

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