Scripps News finds lack of interactive 'red flag' training for N.Y. police prior to mass shooting

Two New York state troopers who met with Robert Card had only received written instruction in "red flag" laws.
Posted at 4:41 PM, Jun 05, 2024

Despite the New York governor’s 2022 executive order that all New York State Police troopers be “trained and instructed” on how to use New York’s Red Flag Law, a Scripps News investigation found some officers received only written instructions and did not have formal, interactive training with an instructor by the summer of 2023, when they encountered a man who would go on to commit the deadliest mass shooting in the U.S. that year.

Two New York state troopers had only received written instructions in the form of guides, manuals and updates about the state’s Red Flag Law last July when they decided not to petition for an Extreme Risk Protection Order to remove firearms from an Army reservist whose "weird behavior” and access to guns had become a concern for his colleagues. The Red Flag Law is also known as the Extreme Risk Protection Order Law or the ERPO law.

The only trooper on the scene that day who had received police academy training on the state’s Red Flag Law had been on the job for eight months, since November 2022, according to Beau Duffy, an NYSP spokesperson.

The two more senior troopers took charge of the situation that day, according to a Scripps News review of body camera footage.

Three months later, the Army reservist, Robert Card II, used a .308 Ruger SFAR rifle to shoot and kill 18 people in Maine before killing himself.

“This incident was reviewed, and it was determined that the troopers who responded acted appropriately,” Duffy said in a written statement to Scripps News.

“The State Police uses a well-established system of internal bulletins, memos, guides, and updates to the NYS Police Manual to ensure that our members have the information they are required to know to perform their duties effectively,” he said.

Law temporarily removes weapons from those who may cause harm

The New York law allows police to petition for a protection order that would remove someone’s weapons “if there is probable cause to believe that person is likely to engage in conduct that could result in serious harm to himself or others,” according to NYSP training materials obtained by Scripps News.

The process also flags someone’s record so they cannot obtain other firearms for a period of time.

A similar law exists in 20 other states and Washington, D.C.

New York State Police troopers have been instructed, according to NYSP training records, that they “must apply” for one of these orders if there is a “substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”

Friends were concerned Card would ‘hurt himself or someone else’

Last July, three New York troopers first approached Card, a Maine resident who was staying in New York during military training, because Card’s military colleagues shared concerns that he had been behaving strangely and could “hurt himself or someone else,” especially with access to military weapons during their training activities.

Body camera footage of police with Maine mass shooter Robert Card.

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Card’s military colleagues — some of whom are civilian police officers in the state of Maine — spoke to the troopers for nearly an hour prior to the confrontation, explaining their worries after Card was involved in a recent altercation with a colleague.

They referred to his behavior as “aggressive” and “combative,” and they explained that Card, who had been hearing voices, had balled up his fists and was “going after” and yelling at a colleague warning that he would “take care of it.”

“The more concerning part is he was never like this,” one military colleague can be heard telling troopers on NYSP body camera footage obtained by Scripps News. “And he’s a gun nut, too,” another military member said. “He has a lot of guns. He spent 14 grand on a scope too ... I don’t know what he’s capable of ... but I’m just saying he does have a ton of guns.”

Scripps News has learned Card legally purchased the murder weapon less than two weeks prior to this encounter, but none of his colleagues found any firearms in his possession in New York.

According to New York State Police training records, “Use, threat of use or access to a firearm, rifle, or shotgun is not required to file a [Temporary Extreme Risk Protection Order],” but “evidence of a recent acquisition of a firearm” would be considered by the court when determining whether to issue an order.

“We’re caught between a rock and a hard place,” one NYSP trooper can be heard telling Card’s military colleagues in an NYSP body camera recording. “100%, from what you guys are telling me, it sounds like [Card] really does need to see a mental health professional. He needs to be evaluated. But our hands are tied.”

When they confronted Card in his room, Card confessed that his friends and colleagues were “scared 'cause I’m going to frickin’ do something, ‘cause I am capable.”

A trooper later noted in his incident report that Card “did not state that he wanted to harm himself or others.”

“The troopers determined that the actions of Robert Card on that day did not meet the standard under state law to take him into protective custody or support a Temporary Extreme Risk Protection Order,” Duffy said. “The troopers’ priority was getting Card mental health assistance at the hospital.”

However, the troopers did not take Card into custody or transport him to a psychiatric facility.

Instead, they “escorted” Card’s Army Reserve colleagues as they transported Card in a private vehicle to a military hospital for an evaluation.

After that, the troopers left the scene.

Card was later transferred to Four Winds Hospital, a psychiatric facility.

“Every situation troopers respond to involving an individual who may be experiencing a mental health crisis is unique, and troopers rely on their knowledge of the law and their training to decide on the most appropriate course of action,” said Duffy. “It’s not possible to say with certainty that one set of circumstances will be the same as the next and require the same actions.”

Duffy said no changes are currently planned for the state’s training practices, “but reviewing the training needs of the agency is a continual process," he said.

Duffy said the number of ERPOs filed by New York State Police has “dramatically increased” which “clearly demonstrates awareness (of the law),” he said.

Duffy said troopers issued 95 ERPOs in 2021, 585 in 2022, and 1,385 in 2023.

The governor’s red flag goals

It is impossible to know whether the pursuit of the Red Flag Law would have affected Card’s actions, but the law has been championed for years by New York Gov. Kathy Hochul as one strategy to help eradicate gun violence, including mass shootings.

New York has had a Red Flag law since 2019, but in recent years, Hochul has prioritized the law’s expansion.

“These laws are intended to keep deadly weapons away from people who are a threat to themselves or others,” she said during a press conference in 2022.

That year, she signed an executive order “requiring state police to file for an Extreme Risk Protection Order ... whenever they have probable cause to believe that an individual is a threat to themselves or others,” according to her website.

The executive order also states that the New York State Police shall ensure that sworn police officers are “trained” and “instructed” to file an Extreme Risk Protection Order application in accordance with the law.

“Training is critical,” she said in 2022. “Law enforcement — people who have been on the job for a long time — they’re not as familiar with what the tools are that are available to them to protect the citizen.”

All recruit troopers who entered the police academy after the law became effective in New York in September 2019 received training on the law during the New York State Police Academy, according to the New York State Police. However, troopers who attended the basic school at the New York State Police Academy prior to that date “have been provided instruction,” and a written “ERPO guide was established to help guide members through the process.”

“The extensive information and instruction provided to [New York State Police troopers] regarding Extreme Risk Protection Orders is considered equal to training,” Duffy said.

Duffy said troopers are required to know and comply with directives and state policy related to the law.

The New York State Police told Scripps News that all three of the troopers who responded to the incident involving Card did receive training on the state’s Mental Hygiene Law, which includes information about responding to incidents “that may involve potentially mentally ill and/or emotionally disturbed persons.”

However, unlike the state’s ERPO law, the state’s Mental Hygiene Law does not include a specific provision that allows police and some others to petition for the removal of someone’s firearms.

Scripps News repeatedly asked the New York State Police and the New York Governor’s office for an on-camera interview about these issues.

The New York State Police declined.

The New York governor’s office did not respond to a dozen emails and phone messages combined.

Specifically, Scripps News wanted to know whether the training the police had received was what Hochul expected when she issued her executive order.

ERPO expert weighs in

According to Spencer Cantrell, an attorney who serves as co-lead of the national ERPO Resource Center, the Red Flag Law could have been utilized in New York during the confrontation with Card, even though he permanently lived in Maine.

Cantrell pointed to the Extreme Risk Protection Order Model Policy distributed by the New York State Division of Criminal Justice Services.

If a respondent is temporarily residing in New York or has no residence in the state, then the application for a risk protection order “should be filed in the county of temporary residence” or “in the county in which the conduct gave rise to the need to file an application.”

Cantrell said agencies can work with their counterparts across state lines to ensure the removal of firearms if a person’s guns are in another state.

“The FBI grants full faith and credit to the enforcement of extreme risk protection orders, and so it would then be on the New York police to coordinate with the law enforcement in the local jurisdiction where the firearms were,” said Cantrell.

According to the FBI, when a flag is placed on someone’s record, the National Instant Background Check System would deny a person’s firearm transaction across state lines. According to the FBI’s most recent NICS Operational Report, dated 2022, 48 states will honor ERPOs issued in other states regardless of whether they have their own similar laws.

Cantrell said research shows ERPO laws are working to prevent threats of mass shootings and suicides, but they are only as effective as their implementation.

“That requires system actors on the ground working together collaboratively to ensure that firearms are removed and that whenever someone sees an individual who is exhibiting these really clear warning signs that they’re taken to court and that an ERPO is petitioned,” she said. “But if law enforcement officers or other petitioners or implementers aren’t doing that, then the law isn’t going to be successful.”

Cantrell said it is important for law enforcement officials to have ongoing training, “making sure that this is a tool that stays in front of mind for officers.”

Expansion of the law

On June 6, 2022, New York’s ERPO law was enhanced to allow health care practitioners to petition for an ERPO if they had examined a patient within six months of a potential red flag situation.

Scripps News contacted Four Winds Hospital, where Card was taken for a psychiatric evaluation, to ask whether anyone attempted to petition for an Extreme Risk Protection Order, which would have involved filing documents in a New York court. No one responded to our request for information. Card’s weapons were never surrendered to law enforcement under the red flag law.

That hospital released Card in August 2023 with guidance to his military colleagues that he should not have access to firearms, according to a report issued by the Maine state commission investigating the shooting.

The Independent Commission to Investigate the Facts of the Tragedy in Lewiston reported “mental health providers ... were concerned about Card’s access to firearms at his home. They also issued a set of recommendations ... including the recommendation ... to restrict Mr. Card’s access to all military weapons and ammunition. They also explicitly recommended ... that ‘measures be taken to safely remove all firearms and weapons’ from Mr. Card’s home.”

Scripps News reached out to Four Winds Hospital multiple times but did not receive a response to our questions.