‘Red flag ’ reporting considered
In wake of Buffalo massacre, legislators focus on how to address mental illness
Most of the focus from state lawmakers on why Payton Gendron was allowed to legally purchase a gun — despite a threat he allegedly made in high school of a murder-suicide as his reported post-graduate plans — has centered on whether the incident should have led to a “red flag ” that could have prevented him from buying the firearm.
Legislators in the final days of the scheduled session are considering whether to make it mandatory to report a “red flag ” if someone makes a violent threat that could pose an extreme risk to themselves or others, according to a source familiar with discussions. The person attributed the proposal in part to questions raised about whether law enforcement or school officials should have taken more proactive steps following the teenager’s alleged threat.
But the negotiations also are focused on how to address potential mental illness without criminalizing it.
A simple policy solution is particularly challenging, lawmakers are finding, especially one that could clearly remedy what took place prior to a racially motivated mass shooting at a supermarket in Buffalo, which left 10 Black people dead. The incident is being investigated as a hate crime and has been labeled by Gov. Kathy Hochul as an act of “white supremacist terrorism.”
Regardless of how officials in the conservative town of Conklin decided to proactively apply for what’s known as an extreme risk protection order or a “red flag,” Gendron’s path to purchasing a gun could have ended in a much more straightforward process, according to discussions with law enforcement and mental health experts who are familiar with the state’s laws.
When Gendron was sent by police for a mental health evaluation following his threat of a murder-suicide, the professional doing the evaluation could have found him to be in need of involuntary commitment to a mental institution, based on a diagnosed mental illness and danger risk, and he would have become ineligible to purchase a gun under federal law.
Gun owners run the names of potential buyers through a “National Instant Criminal Background Check System” that flags if someone has a mental disability or was committed to a mental institution.
In this instance, according to law enforcement officials, Gendron — who Democratic lawmakers and a few Republicans have called a white supremacist, domestic terrorist and racist — was not deemed to have needed institutionalization to resolve the issues that prompted law enforcement to send him for the mental health evaluation.
The section of state Mental Health Law that police invoked to send Gendron for an evaluation is typically used for people showing signs of being at risk for suicide, according to a law enforcement official. Suicide accounts for a just over half of gun deaths per year in New York, according to the Giffords Law Center.
If someone is evaluated under that section of Mental Health Law, it does not mean they lose their right to possess or purchase a firearm. And law enforcement authorities are not at all instructed — or required — to submit a “red flag ” if they send someone for evaluation.
Mental health advocates warn
that the focus should be on whether the person is found to be credibly violent, not whether the person is found to be mentally ill.
“It is a slippery slope,” said Glenn Liebman, CEO of the Mental Health Association in New York State. “If there’s a history of a threat of violence, there seems to me there would be a commonsense response.”
The issue is to not conflate the two, added Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services.
“Sometimes we look for a mental health response instead of a more appropriate criminal justice response,” Rosenthal said.
The mental health advocates agreed that a person with a violent history should be handled in the context of criminal statutes and not Mental Health Law. But the case with Gendron is complicated because law enforcement, in this case, decided the best path for him was to address whether he had underlying mental health issues.
“We don’t want to criminalize mental health, but there was multiple (official) touches with this individual,” said Assemblywoman Michaelle C. Solages, chair of the state Black, Puerto Rican, Hispanic and Asian Legislative Caucus. “I don’t know if it was white privilege or if it was boys will be boys, but again, we have 10 Black individuals who died because we didn’t want to walk that fine line. We have to be aggressive.”
State Sen. Zellnor Myrie, D -Brooklyn, who has focused in the Legislature on how to respond to the public health crisis of gun violence, said the issue is a “delicate balance.”
“There’s no question the collective mental health of the nation has deteriorated over the past two years,” Myrie said. “And if you had preexisting conditions, it’s further exasperated. But also, I’m weary of attributing every instance of gun violence to mental health.”
He said he is open to addressing the mental health issues, but said the focus should be also on stamping out hate and racism, particularly across party lines.
At play as well is the lack of mental health resources in schools as well as in urban and rural communities, Assemblywoman Jessica Gonzalez-rojas noted. She pushed to get into the budget legislation that would have required at least one social worker and one child psychiatrist be employed at every school, which did not make it into the spending plan despite a windfall of federal cash to spend on various COVID -19 issues.
Democrats in the Assembly have discussed more broadly whether there needs to be mental health checks before purchasing a gun, she said, but the situation remains complicated.
“It’s confluence of issues,” Gonzalez-rojas said. “It’s probably a failure of the system, but certainly rampant white supremacy, racism and access to guns and that all plays into what happened and it’s completely tragic. But certainly mental health is a component, but I want to be careful.”