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RED FLAG
Is there anything wrong with New York’s Red Flag Law?
The law could have prevented the accused Buffalo shooter from getting a weapon. It just wasn’t used by police.
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By Sara Dorn
THE BUFFALO SHOOTING suspect who reportedly threatened a murder-suicide less than a year before he shot 13 people, killing 10, at a Tops supermarket on May 14 may have been prohibited from acquiring the firearm he used in the massacre if law enforcement had pursued the available protections under the state’s Red Flag Law. The law, which passed in 2019, said law enforcement, family members or school employees can file for an “extreme risk protection order” that would require a state Supreme Court judge to decide if there is probable cause that the person would be likely to seriously harm themself or another individual.
Questions were raised about why the law wasn’t executed in the wake of the Buffalo shooting after officials revealed that 18-year-old Payton Gendron had made a “generalized threat” of violence in June 2021 while attending Susquehanna Valley High School in his hometown of Conklin. According to The New York Times, citing a law enforcement source, Gendron responded to a school project about his post-graduation plans by stating he wanted to commit a murder-suicide. New York State Police confirmed they responded to the school on June 8 to investigate a “generalized threat” made by a 17-year-old student, who was then taken into custody and transported to the hospital for a mental health evaluation. The agency, which would not say whether Gendron was the student, citing privacy reasons, said in an email to City & State that it did not apply for an extreme risk protection order against the student and noted the threat was general in nature and did not target the school or anyone in particular.
Months later, sometime earlier this year, Gendron purchased what was described by Gov. Kathy Hochul as an “AR-15-style” rifle from Vintage Firearms in Endicott. The store owner, Robert Donald, told NPR that Gendron’s background check showed nothing that would have prevented him
FBI investigators, left, were on the scene as was Buffalo Mayor Byron Brown, top right, soon after the mass shooting at a Tops supermarket on Buffalo’s East Side.
from legally selling him the gun.
Assembly Member Jo Anne Simon, who sponsored the Red Flag legislation, expressed disappointment that law enforcement did not pursue a protection order after the incident with his school a year ago, noting the law was set up so that a judge could make the final determination if there was probable cause to believe a person would likely engage in violence.
“He was brought in last year. There was a complaint he had threatened violence last year when he was in high school, so law enforcement should have applied for an extreme (risk) protection order because he clearly demonstrated an intent to commit violence to himself or others,” Simon told City & State, adding that she is considering calling for a public education campaign to heighten the public’s awareness of the law in the wake of the shooting. “I can’t tell you how many people I’ve seen on Twitter saying, ‘It’s not working.’ It’s not working unless people know how to use it.”
Under an extreme risk protection order, a person would be flagged in the FBI database used by gun sellers, prohibiting them from buying a firearm. Law enforcement, such as a sheriff’s office, must confiscate any firearms the person possesses, along with their firearm license. Within three to six days of the initial “temporary order” being issued, a hearing must be held to determine if a final extreme risk protection order should be granted. While the order stays in effect for one year, law enforcement must hold any surrendered firearms for three years after the order goes into effect.
State Sen. Brian Kavanagh, who sponsored the bill in his chamber, said a thorough investigation should be conducted to determine “what specifically the evidence was last June and whether there was a conscious decision about whether a Red Flag order was appropriate,” he told City & State. Regardless of the results of the investigation, he added: “This is an important moment to remember that we’ve got a law in the books that is a very effective way to determine when someone is identified as being a danger to themselves or to others.”
Since the law was enacted on Aug. 25, 2019, New York courts have granted 875 temporary orders of protection and 589 extreme risk protection orders under the legislation – and the number of orders issued by each county varies widely, according to data from the Office of Court Administration. No orders have been granted in Manhattan, and just two temporary protection orders have been granted in Brooklyn. Suffolk County has the largest number of extreme risk protection order approvals by far, with 116. Sgt. Paul Spinella, a spokesperson for the Suffolk County Sheriff’s Office, which is responsible for executing the orders, told City & State that all but two of the petitions for protection orders were filed by law enforcement.
“Most of them probably come from someone calling 911. And then based on that, the law enforcement agency files for the petition for the (extreme risk protection order),” Spinella said. ■
New York needs boost a
The state lags behind West Virginia and 25 other states in getting residents a third COVID-19 shot.
By Annie McDonough
SIX MONTHS AFTER COVID-19 booster shots became available to all eligible New Yorkers who wanted one, uptake of the extra dose is still lagging in New York City – as it is in the rest of the state. Like many other challenges in the nation’s response to the pandemic, some experts think part of the reason for the large gap between the proportion of vaccinated people and boosted people in New York could be due to poor messaging.
“It starts very fundamentally with the term ‘booster dose,’” said Dr. Jay Varma, an epidemiologist and senior adviser for public health to then-New York City Mayor Bill de Blasio. “Anytime we study a vaccine, it can take many years, sometimes even decades, to figure out what is the right number of doses and spacing of doses to get long-term protection against the (virus). I think what public health officials should have done is basically said that based on all the evidence we have, we have now decided that this is no longer a two-dose vaccine, it is a three-dose vaccine.”
While the booster rate nationwide is also a fraction of the vaccination rate – roughly 102 million people have a first booster dose, compared to 221 million who are fully vaccinated – the gap is particularly wide in New York, which has one of the highest vaccination rates in the country. In New York state, roughly 77% of the population has been fully vaccinated, compared to just 39% who have received a booster shot. In New York City, roughly 78% of the population is fully vaccinated, compared to only 38% who have received an additional dose.
There are also geographic and racial disparities in booster rates, with a larger share of Manhattan residents getting the extra shot, and higher rates of white, Asian and Pacific Islander, and Native American residents in New York City getting extra doses, compared to Black and Latino residents.
The booster is currently only available to fully vaccinated people ages 5 or older, while a second booster dose is available to those over 50 years old, as well as those 12 and older who are immunocompromised. In New York state, roughly 87% of adults (ages 18 and older) are fully vaccinated, and 46% of adults have received a booster dose. That places New York roughly in the middle of all 50 states, and just below West Virginia, in the proportion of vaccinated people who have also been boosted.
As New York experiences a rise in COVID-19 cases, some public health experts and elected officials said the city should redouble its efforts to increase boost-
er uptake. “I think we have consistent data that tell us that over time protection does wane,” said Dr. Wafaa El-Sadr, a professor at the Columbia University Mailman School of Public Health, on the level of protection against infection and severe illness offered by COVID-19 vaccines. “I think that’s what makes it so important that we continue to push hard for people who are eligible for a booster to get a booster dose.”
The de Blasio administration credited vaccine mandates and the Key to NYC vaccine requirement to enter restaurants and other indoor venues with increasing New York City’s vaccination rate last year. Adams suspended the Key to NYC program in March. As cases rise and New York City now enters the “high” COVID-19 alert level, the city is urging, but not requiring, the wearing of masks indoors.
Varma suggested one way to increase uptake of boosters in New York City is to reimplement the Key to NYC program with an added booster mandate. But given the Adams’ administration’s move to roll back that program, a move to beef it up now might not be likely. “That is a politically challenging position for the mayor and the governor right now,” Varma said. “It’s not something you can see that a lot of jurisdictions are moving towards. In fact, pretty much every jurisdiction around the country is moving away from mandates like that.”
When vaccines became widely available last year, New York City rolled out not just mandates but cash incentives to get vaccinated, as well as targeted outreach to hardhit neighborhoods to ensure equitable access and adoption of vaccines. According to the city’s vaccine finder tool, the city is still running pop-up vaccination sites.
When asked what the city is currently doing to boost booster rates, a spokesperson for the Department of Health and Mental Hygiene said the city has been clear in its messaging about the importance of vaccines and boosters. “There probably isn’t a single New Yorker who hasn’t heard us say, ‘get vaccinated.’ That message is true of first doses, second doses and boosters. But let’s say it again, please, get vaccinated,” spokesperson Patrick Gallahue wrote in an email. “NYC has run public service announcements across all forms of media and held thousands of educational events that provided information about boosters as well as the vaccines. We aim to continue communicating to New Yorkers the importance of getting vaccinated and boosting your protection when the time comes.”
But some said that the city’s messaging hasn’t been strong enough over the past couple months. “I would like to see stronger messaging from the city to remind people that this is still a time for caution and to restart boosters, which have essentially ground to a halt,” Manhattan Borough President Mark Levine told City & State last month. “I’d like to see the city launch a major campaign to promote boosters, to incentivize boosters. For example, bringing back the $100 incentive and reaching out to people directly who got their primary vaccine series, but never got their booster.”
At an April 1 press conference, New York City Health Commissioner Dr. Ashwin Vasan was asked about bringing back a cash incentive for booster shots. “I think we’ve seen incentives have a limited and strong but narrow effect,” Vasan said. “I think now we’re encouraging New Yorkers to make that choice. Go get boosted as soon as you’re eligible.”
In recent weeks, federal health officials have pointed to the importance of boosters. “It’s really important that we try to get the half – or a little bit more than a half – of Americans who have only received two doses to get that third dose,” Dr. Peter Marks, director of the Center for Biologics Evaluation and Research at the Food and Drug Administration, said. “That may
– Manhattan Borough President Mark Levine
make a difference moving forward here, and it may particularly make a difference now that we’re coming into yet another wave of COVID-19.”
Though health experts don’t have a single consensus about why so many people who are vaccinated have not taken that extra step of getting a booster, some ventured guesses about why that gap persists. A lack of booster mandates is one possible explanation, as is still widespread misinformation about vaccines, said Denis Nash, a professor of epidemiology at the City University of New York. “When you look across all of their information sources, most people are being exposed to some kind of misinformation or disinformation about vaccines and boosters. And I think that plays an important role,” he said.
El-Sadr estimated that barriers to higher uptake of boosters likely exist both on the supply and demand sides. A lack of individual awareness about the importance of boosters – not just for immunocompromised and older people, but for everyone – might be contributing to a lack of demand. On the supply side, while doses remain widely available at pharmacies and other health centers, vaccination sites are not as ubiquitous as they were last year, when jabs were offered at pop-up sites in the subways or in large cultural institutions like the American Museum of Natural History.
Anna Bershteyn, an assistant professor of population health at NYU Grossman School of Medicine, said the most important thing is still to reach the unvaccinated. New York City data shows that the unvaccinated still see far higher rates of cases, hospitalizations and deaths. Bershteyn noted that according to the city’s data, case rates are actually slightly higher among people who are vaccinated and boosted, as opposed to those who are just vaccinated with no booster. Hospitalizations and deaths are roughly even among the boosted and the vaccinated but not boosted. Health experts warned not to overinterpret the city’s data, however, as it doesn’t include at-home tests and that higher case rates among boosted people might reflect that people who are boosted are at higher risk of exposure, such as health care workers. ■
On hold with no time to waste
WHEN BROOKLYN resident Octavius Moore tested positive for COVID-19, confirmed by two at-home tests, his co-workers gave him advice about how to treat his symptoms.
“A team member who also tested positive after coming back from Caucus Weekend told me about the antiviral treatment and that I should try to reach out and get a prescription for it. So I decided to do that,” said Moore, who said he called a number through New York City Health + Hospitals to get the pills.
It was so hard for Moore to stay awake on his three 30-minute calls to Health + Hospitals that when he finally did connect with an operator, they had to scream into the phone to wake him up from his virus-related fatigue.
In response, Dr. Ted Long, senior vice president of ambulatory care and population health at New York City Health + Hospitals, said: “Our experience has been that the wait time has been pretty good, but we always welcome more feedback.”
Moore’s experience – waiting a long time to get in touch with the hospital system to get a prescription and having a friend pick up the prescription because he was too sick to get it himself – has not been unique. Several other people in New York City have reported the same issue and the inability of Alto, the city’s preferred delivery service, to get them medication in a timely fashion.
With COVID-19, treatment needs to start within five to seven days, depending on the drug, of testing positive. If antivirals are taken too late, a person’s symptoms can continue to worsen, even for those who are vaccinated.
Antiviral treatments, which range from pills like Pfizer’s Paxlovid to an intravenous infusion of antibodies, were initially available at the end of January to seniors in the city as well as to immunocompromised residents who tested positive.
Though as of late March, treatments were available to anyone who tested positive, either through PCR testing or at-home testing, and wanted to ensure their symptoms would not worsen after a positive test.
Health + Hospitals has doled out over 3,500 prescriptions for Paxlovid, with 90% of those prescriptions being completed through their phone system, according to spokespeople Patrick Gallahue and Adam Shrier. The system has also delivered 22,000 courses of Paxlovid, with around 75% of those being placed through Alto.
Moore heard about these treatments from someone who contracted the virus at his workplace and was able to get a prescription for the antiviral medication to quell his symptoms. While the treatments have been widely available for a couple months, public health experts said that antivirals haven’t been widely publicized outside of social media and through word of mouth.
Miesha Marzell, a public health professor at Binghamton University, said high-profile politicians who tested positive for COVID-19 and immediately received the best treatments might be hesitant to
New York City has struggled to get COVID-19 antiviral treatments into the hands of residents quickly.
By Candace Pedraza
speak about antivirals and their availability compared to the frustrations that residents have had in also getting them.
“It kind of exposes that disparity. … I don’t think that they could advertise it because they know it’s almost hypocritical,” Marzell said.
She added: “In terms of advertising … this is speculation that public health officials, government officials are just a little reluctant to really say this is what you need to be doing when the drug might not have been readily available in their communities.”
New York City Mayor Eric Adams tested positive for COVID-19 in April and started an antiviral regimen right away. “We’ve come so far in our fight against #COVID19 and make no mistake: we are winning. Vaccines and antiviral treatments are saving lives from this formidable foe,” he tweeted.
The city has run public service announcements similar to those that became popular with former Health Commissioner Dr. Dave Chokshi on social media, and the city Department of Health and Mental Hygiene has been working with local media to get word out about these treatments in multiple languages. Plus, the city has begun a Test to Treat program, which allows certain pharmacies to test patients for COVID-19 and, if they test positive, can prescribe Paxlovid on the spot.
However, transmission rates are trending upward due to the spread of various omicron subvariants. The hospitalizations and deaths that result from this new surge, which has pushed the city back to “high” levels of transmission, could be mitigated with the widespread availability of antiviral treatments.
According to the U.S. Department of Health and Human Services, New York City has more than 500 pharmacies where residents can get Paxlovid.
Some public health experts, while happy to hear about the availability of these treatments, felt like their availability in pharmacies might not be known by residents looking for a prescription after testing positive at home.
“Oftentimes folks who are older might not have access to the same information you have on social media. I do think that the city does need to do more, maybe more targeted outreach to community members who are in these different groups who would benefit the most from it,” said Dr. Oni Blackstock, founder and executive director of Health Justice, a consulting group focused on anti-racism and equity in health care.
Blackstock said these advertising campaigns would need to be more focused on the audience that could benefit the most
from these treatments.
Complaints about messaging and communication regarding these treatments are to be expected from residents like Moore who had firsthand experience dealing with the city’s bureaucracy. He and experts like Marzell both felt that delivery and overthe-counter options should be better implemented to make sure New Yorkers can treat their symptoms in a timely, safe manner.
Marzell said: “So it’s just like we have the tools in the state of New York. We have the tools in the country. We have the tools in the world, but who do the tools get to? Who do these efforts get to?” ■
