K.L.’s case shows exactly how Red Flag laws, sold as public safety tools, can be turned against the vulnerable instead of the truly dangerous. An 11-year-old girl, expressing emotional distress in texts, with no access to guns and no intent to harm anyone, became the target of a legally frivolous ERPO. Authorities traumatized her, taking her into custody in a police car, confronting her about private messages in front of her parents, and pursuing legal action, not to protect her or anyone else, but to send a “wake-up call” and hold her “accountable.” The process leaves a lasting mark on official records, creating stigma where no real threat exists. The state ignored basic evidence, presenting no medical or educational records, relying only on ambiguous texts. And this isn’t an isolated problem: Red Flag laws can sweep up children, seniors, and anyone in emotional distress, applying government power under the guise of safety. K.L.’s story proves what’s really behind these laws: trauma, stigma, and overreach, not safety.
From N.Y. State Police v. K.L., decided by Ulster County (N.Y.) trial court judge Julian Schreibman on Dec. 12:
Often referred to as the “Red Flag Law,” Article 63-A created ERPOs [Extreme Risk Protection Orders]. Although an ERPO is a “Protection Order,” it does not limit where the subject can go or with whom he or she can associate. Rather, an ERPO does one thing: it prohibits the subject from possessing or acquiring firearms for up to one year.
Significantly, the Red Flag Law is not addressed only to criminal gun violence but also encompasses the goal of reducing suicide by firearm…. “The Red Flag Law seeks to keep guns out of the hands of persons who may be suffering from acute emotional trauma or a mental health crisis and are at risk of harming themselves or others.” …
The enactment of the Red Flag law was not met with a flood of petitions. However, on May 14, 2022, a racially motivated mass shooting in Buffalo left ten Black New Yorkers dead. In the wake of this massacre, on May 18, 2022, Governor Kathy Hochul issued an Executive Order titled, “Directing the State Police to File Extreme Risk Protection Orders” (the “Executive Order”)….. [S]ince the Executive Order, there has been a sharp increase in the filing of TERPO [Temporary Extreme Risk Protection Order] applications, with a significant portion of these directed at at-risk persons including troubled children, senior citizens, persons with serious chronic illnesses, and individuals processing trauma through acts of non-suicidal self-harm such as “cutting.”
By Eugene Volokh
