ROBERT BROOKS' KILLING BY PRISON GUARDS PRESENTS HIGH-PROFILE TEST OF NEW YORK'S RED FLAG GUN LAW
DOES SOMEONE ACCUSED, BUT NOT CONVICTED, OF A CRIME KEEP THE RIGHT TO BEAR ARMS?
“Guns on the table.” Photo credit: JB Nicholas.
Jan. 2, 2025
Since it was first enacted in 2019, New York's Red Flag gun law has been used to disarm 1000s of New Yorkers but few, if any, have heard of it. That's about to change because the investigation of the killing of Robert Brooks by guards at the Marcy Correctional Facility presents a high-profile test of the law.
The latest battle in America's long-running culture war over guns played out in a courtroom on the 10th floor of a brown, brick brutalist office building near the shore of Lake Ontario Thursday morning in the case of a New York State prison guard.
David J. Kingsley II, 44, is accused by Gov. Kathy Hochul and State Police of being "involved" in the killing of inmate Robert Brooks at the Marcy Correctional Facility Dec. 9.
Brooks, a 43-year-old Black-American, was beaten and choked to death by an all-white group of guards including Kingsley, video made public last Friday by Attorney General Letitia James shows. Preliminary findings by the Onondaga County Medical Examiner confirm Brooks' death was caused by "asphyxia due to compression of the neck."
(1) David J. Kingsley II choking Robert Brooks and restraining him so other prison guards can punch and kick him; (2) Kingsley (l) in the corner with two other guards pressing Brooks’ neck on the edge of a concrete window ledge, which appears to finally kill Brooks; (3) Kinglsey. Photo credit: body camera video courtesy of the New York Attorney General’s office.
James's office filed a petition for a court order to disarm Kingsley under New York's Red Flag gun law on Dec. 24. The law allows a judge to order a person disarmed if it's proven there's "probable cause to believe" he or she "is likely to engage in conduct that would result in serious harm to self or others."
James' office won a preliminary ruling from State Supreme Court justice William F. Ramseier that required Kinglsey to give up his guns on an emergency basis on that same day—pending Thursday morning's hearing.
"Kingsley, a NYS Corrections Officer, participated in the physical assault of Robert L. Brooks, a NYS DOCCS inmate, which resulted in the death of Brooks," Justice Ramseier's preliminary Dec. 24 decision said.
Based on that factual finding, Justice Ramseier concluded there was "probable cause to believe" Kingsley "is likely to engage in conduct that would result in serious harm to others."
The U.S. Supreme Court breathed new life into the Second Amendment in a landmark 2022 decision New York State Rifle & Pistol Association, Inc. v Bruen. In 2024, in United States v Rahimi, the Supreme Court endorsed the general principle that Government can temporarily disarm persons notwithstanding Bruen if they "poses a credible threat" to someone's "physical safety."
New York first enacted its "Red Flag" gun law in 2019. Gov. Kathy Hochul expanded it by Executive Order which the Legislature confirmed in 2022. While it was originally aimed at potential school- and mass-shooters, application of the law has been continually expanded, the Governor's office says.
Not just police, but family members and even teachers are authorized to apply for what the law formally calls an "Extreme Risk Protection Order," or ERPO. A "Temporary Extreme Risk Protection Order," or TERPO, can be petitioned for ex parte—meaning the person to be disarmed does not have a right to appear in court and oppose it.
If a judge grants a TERPO application, police go to the person’s residence and enforce the court order by searching it and seizing any guns they find.
Under the law, if a judge grants a TERPO it must give advance notice or warning to the allegedly “dangerous” person and hold a full adversarial hearing "no sooner than three nor more than six business days after service of the temporary order." The person or police agency applying for the Final Extreme Risk Protection Order, or FERPO, bears the burden of proof "by clear and convincing evidence."
If the court issues a FERPO, it can last up to one year. It may be renewed by proving the disarmed person remains “dangerous.”
In June, an intermediate appellate court in Brooklyn rejected a constitutional challenge to New York's Red Flag law.
Corey Monroe allegedly pointed and cocked a loaded shotgun at a neighbor during a verbal dispute in 2023. A State Supreme Court justice in Orange County declared the law unconstitutional and enjoined its enforcement against Monroe. James, the Attorney General, intervened and appealed.
She won. The Appellate Division, Second Department reversed the decision and reinstated the law.
"This regulation is consistent with the nation's historical tradition of firearm regulation in keeping dangerous individuals from carrying guns, and, therefore, is presumptively lawful," the court concluded.
While the law may be constitutional on its face, applying it to Kinglsey raises an important question: should a potentially innocent man have the right to armed self-defense against vigilantes?
American constitutional law attaches a presumption of innocence to criminal defendants—but it also allows them to be locked up before a trial if they present a threat to witnesses or the community at large.
On the other hand, Kingsley and the other prison guards have been targeted with Internet death threats on social media, explicit and implied. Most of the posters got the guards’ home addresses wrong, but a few exposed real ones.
One social media fire-starter reminded readers the IRA assassinated 19 prison guards for abusing IRA prisoners in Ireland from 1976 to 1981. Another, New York Black Lives Matter voice Hawk Newsome, previously called for vigilante justice against perpetrators of violence against Black Americans.
“Just like everybody seeks justice on their own. Just like everybody else has vigilantes, we need some Black vigilantes,” Newsome said outside Manhattan Criminal Court after Daniel Penny was acquitted on the basis of self-defense for killing Jordan Neely on Dec. 9, 2024.
It was up to New York State Supreme Court Justice William F. Ramseier to balance these competing factors Thursday morning in Watertown, New York. But Kingsley didn't show up and didn't send a lawyer.
State Police Investigator Joe Simpson testified he went to Kinglsey's home and served him with a court notice of the hearing. When Simpson asked Kingsley to sign an acknowledgement form, he refused.
"He actually wrote 'Refused' in the section where his signature was," Simpson said.
Ryan Paparella, the lead investigator in the case against the guards, also testified. He said Kingsley was one of the guards captured in body camera video choking Brooks and holding him down so that other guards could hit him.
On Dec. 24, 2024, Supreme Court justice William F. Ramseier issued a court order finding "Kingsley, a NYS Corrections Officer, participated in the physical assault of Robert L. Brooks, a NYS DOCCS inmate, which resulted in the death of Brooks."
If the court decides James's office did not meet its burden of proving Kingsley's dangerousness by clear and convincing evidence, the court could dismiss the petition. If the court decides Kingsley is a threat, it can suspend Kingsley’s right to keep a gun for a year.
If Kingsley is formally charged with killing Brooks and convicted, he would also lose his gun rights.
Justice Ramseier reserved decision after Thursday’s hearing. He said he would review the evidence "and issue a written decision as quickly as possible."
James' office filed three additional Red Flag law petitions against three more Correction Officers allegedly involved in killing Brooks. The judge hearing those cases denied the Attorney General's emergency request to disarm them. Their final, FERPO hearings are scheduled for Jan. 7.
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