ERPO

New York's Red Flag Law, also known as the Extreme Risk Protection Order (ERPO) law, is effective in New York State as of August 24, 2019. The law prevents individuals who show signs of being a threat to themselves or others from purchasing or possessing any kind of firearm. And Governor Hochul signed an Executive Order 19 on May 18, 2022 to require State Police to file for an ERPO whenever they have probable cause to believe that an individual is a threat to themselves or others. 

ANONYMOUS DETECTIVE v. AA, 71 Misc. 3d 810 - West. Co. Supreme Court 2021:

"ROBERT DIBELLA, J.

Respondent A.A. moves to declare New York's extreme risk protection order act (herein referred to as ERPO statute or the Red Flag Law) set forth in CPLR 6340-6347 unconstitutional and unenforceable due to violations of both the United States Constitution and the New York State Constitution. Petitioner opposes the motion. For the reasons set forth herein, the motion to declare the Red Flag Law unconstitutional and unenforceable is denied. The portion of the motion to seal the papers and proceedings until the final hearing and determination is also denied at this juncture.

In early July 2020, respondent was being treated at Putnam Hospital allegedly due to suicidal thoughts. It is alleged that respondent falsely denied having a firearm to the hospital staff, whereby they asked respondent's mother to check and confirm. Upon her finding a rifle in respondent's home, the hospital indicated that it would not release respondent until they received confirmation that the rifle had been removed and secured. On July 3, 2020, a Westchester County Police Department (WCPD) officer was directed to respondent's residence identified as XXXXX, Cortlandt, New York, to assist with the surrendering of a firearm. The rifle identified as a Hi-Point 9 millimeter rifle, model number 995TS with serial number 813*813 F56720, was transported to the WCPD headquarters property unit for safekeeping. Respondent was subsequently released from the hospital. It is alleged that respondent's mother also informed the detective that respondent was a threat to himself and had also threatened her in the past.

On July 13, 2020, respondent met with WCPD detectives at headquarters to discuss the rifle. Respondent indicated that he purchased the rifle on January 30, 2015, and did not make any modifications to it. Respondent was then informed of his Miranda rights and respondent agreed to continue speaking with the detectives. Respondent acknowledged that he owned the rifle, had purchased it legally, and did not modify it except to put a flashlight on it. He also stated he tried to purchase another firearm in May 2020, but was denied due to the results of a National Instant Criminal Background Check. He further stated he had magazines and ammunition at his residence. Respondent was arrested for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02(7), and criminal possession of a rapid fire modification device, pursuant to Penal Law § 265.01-c.

On or about July 13, 2020, a WCPD detective filed an application in New York Supreme Court, Westchester County for an ERPO pursuant to CPLR 6341 and sought a temporary extreme risk protection order (TERPO). This court issued a TERPO on July 13, 2020, pursuant to CPLR 6342, finding "probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a)." In granting said order, the court prohibited the respondent from "purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun" and ordered him to "immediately surrender any and all" such items. A search order was also made, allowing for the search of the respondent and his premises, to be made within the hours of 6:00 a.m. and 9:00 p.m. The matter was set down for a hearing for a final ERPO to be held on July 20, 2020. Motions were subsequently made by both parties, and the hearing was adjourned for determination of the motions. The TERPO has also been extended to the hearing date.

In this motion, respondent seeks an order declaring the ERPO statute set forth in CPLR 6340-6347 unconstitutional and unenforceable. Specifically, respondent argues that the ERPO statute is unconstitutional due to vagueness, that it violates probable cause search and seizure provisions, that it 814*814 violates the right against self-incrimination, that it violates the right to counsel provision and that it violates the right to bear arms provision of the Second Amendment of the United States Constitution. A similar motion was recently determined by this court (Davidson, J.) in Matter of Ruiz v McDowell (index No. 511/2019).

New York, like many other states, has recently enacted what is commonly referred to as a "Red Flag Law" in an attempt to prevent tragedies that have resulted from gun violence at the hands of individuals who exhibited warning signs that they posed a risk of harm to themselves or others. Many jurisdictions have suffered shootings in schools, workplaces, movie theaters and public events that took the lives of innocent individuals. Incidents of mass shootings have been steadily increasing. In the last 10 years, the frequency of mass shootings has tripled. (See Coleman Gay, Note, "Red Flag" Laws: How Law Enforcement's Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence, 61 BC L Rev 1491, 1494 [Apr. 2020] [and citations therein].)

New York's Red Flag Law, or ERPO statute, became effective on August 24, 2019. New York's Red Flag Law allows a petitioner, who may be any law enforcement official, family member or school administrator, to file a civil proceeding in Supreme Court seeking a final order prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm for a specified time.^[1] In conjunction with the application for an ERPO, a petitioner may seek an ex parte temporary order immediately prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm, if certain criteria are met. Pursuant to CPLR 6342(1), a court may grant a TERPO only upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself or others, as defined in paragraph (1) or (2) of subdivision (a) of section 9.39 of the Mental Hygiene Law. Mental Hygiene Law § 9.39(a) defines "likelihood to result in serious harm" as:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating 815*815 that he is dangerous to himself, or

"2. 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."

As a starting point in this court's analysis of the respondent's arguments, it is well established that "[l]egislative enactments enjoy a strong presumption of constitutionality." (LaValle v Hayden, 98 NY2d 155, 161 [2002].) Although not irrefutable, a party seeking to challenge a duly enacted statute bears the initial burden of demonstrating beyond a reasonable doubt that the statute is invalid. (See id.) Further, "courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional." (Id., citing Alliance of Am. Insurers v Chu, 77 NY2d 573, 585 [1991].)

First, respondent argues that the Red Flag Law is unconstitutionally vague. In addressing a vagueness challenge, a court must enlist a two-part test to determine whether: (1) the statute is sufficiently definite to give a person of ordinary intelligence fair notice of forbidden conduct under the statute and (2) the enactment provides officials with clear standards of enforcement. (People v Stuart, 100 NY2d 412, 420-421 [2003].) Further, "[t]he degree of vagueness that the Constitution tolerates... depends in part on the nature of the enactment.... The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." (Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 498-499 [1982].) Moreover, if, as applied to the respondent, the statute is not impermissibly vague, the inquiry ends there and the court will not strain to imagine situations where the application may not be so clear. (See People v Stuart, 100 NY2d at 422.)

Respondent argues that the Red Flag Law is unconstitutionally vague because it fails to provide a person of ordinary intelligence notice of the exact nature of the conduct which would give rise to a TERPO or ERPO after hearing. Respondent argues that the statute is not adequately defined because it requires a finding (by probable cause for a TERPO and clear and convincing evidence for an ERPO) of a likelihood that something will happen in the future, rather than something more concrete. Further, respondent challenges the incorporation 816*816 of the Mental Hygiene Law definition of "likelihood to result in serious harm" without any further incorporation of Mental Hygiene Law principles or due process protections preventing wide interpretations.

These arguments are unavailing. Relevant factors are enumerated in CPLR 6342(2) for the court to consider in determining whether grounds exist to issue a TERPO including, but not limited to,

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

"(b) a violation or alleged violation of an order of protection;

"(c) any pending charge or conviction for an offense involving the use of a weapon;

"(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

"(e) any history of a violation of an extreme risk protection order;

"(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

"(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor."

The plain reading of the statute is not vague but is, in fact, very clear. In order for a TERPO to issue, there must be probable cause to believe that a substantial risk of harm to self or others exists as manifested by violent, harmful, threatening suicidal or homicidal behavior. These considerations clearly provide notice of the "forbidden conduct sufficient to inform a person of ordinary intelligence." In the instant matter, respondent is alleged to have made threats of violence towards others and threats of harm regarding himself, and was brought to the hospital for suicidal ideations. This conduct falls within the seven factors enumerated in the statute and provided respondent with sufficient notice of grounds for the issuance of a TERPO.

As to the second prong of the test, the court disagrees with respondent's argument that the statute permits and encourages arbitrary and discriminatory enforcement by failing to provide minimal guidelines to govern how law enforcement will conduct this search. CPLR 6342(8) states in relevant part that an officer serving a TERPO shall

817*817 "[t]ake possession of all firearms, rifles and shotguns that are surrendered, that are in plain sight, or that are discovered pursuant to a lawful search. As part of the order, the court may also direct a police officer to search for firearms, rifles and shotguns in the respondent's possession in a manner consistent with the procedures of article six hundred ninety of the criminal procedure law."

The ERPO statute sets forth a standard by which law enforcement may commence an ERPO proceeding and conduct a court-ordered search, thereby avoiding any arbitrary and discriminatory enforcement. The statute allows law enforcement officers to take possession of weapons found in plain sight and by valid and lawful searches as already exist in the law, as well as searches pursuant to the warrant requirements of article 690 of the Criminal Procedure Law.

The court finds that the statute comports with the standards set by the relevant case law and that the statute is not vague. Therefore, respondent's motion to dismiss for vagueness of the statute is denied.

Second, respondent argues that the Red Flag Law violates the Fourth Amendment of the United States Constitution and the related article of the New York Constitution by allowing for unreasonable searches and seizures. Respondent contends that the ERPO statute circumvents the protections of the Fourth Amendment by permitting the invasion of an individual's person, property and home without the prerequisite of probable cause that an illegality actually exists or that respondent actually is in possession of a weapon.

"[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is unreasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." (Skinner v Railway Labor Executives' Assn., 489 US 602, 619 [1989] [internal quotation marks and citations omitted].) A balancing test is used to judge an intrusion on an individual's Fourth Amendment rights against the promotion of a legitimate governmental interest. (Id.) Exceptions have been made to the warrant requirement when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." (Id., quoting Griffin v Wisconsin, 483 US 868, 873 [1987] [internal quotation marks and citation omitted].)

818*818 This court finds that the search conducted herein pursuant to the ERPO statute was reasonable. Contrary to respondent's assertion, the petitioner provided a sworn statement as to the basis for his belief that respondent was recently hospitalized in a psychiatric hospital for expressing suicidal ideations. Respondent falsely denied having any firearms; however, he did own and possess a firearm and had recently attempted to purchase another firearm. These sworn statements, considered along with all the pleadings, supporting papers, and evidence submitted, were sufficient to establish probable cause for the issuance of the search warrant. Furthermore, in circumstances where an individual is deemed to pose an extreme risk due to likelihood of substantial harm to self or others, a special needs exception also exists to promote a governmental interest of regulating conduct and access to firearms of these individuals. Thus, respondent's argument that the ERPO statute violates the Fourth Amendment also fails.

Respondent also contends that the ERPO statute violates his right against self-incrimination because it requires a respondent to admit to law enforcement that he has weapons, to physically turn over those weapons and to complete a form listing certain items which may lead to further criminal charges. The Fifth Amendment privilege under the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (US Const Amend V.) The protections have been expanded to include any other proceeding whether civil or criminal where the answers might incriminate the defendant in future criminal proceedings. (See Baxter v Palmigiano, 425 US 308, 316 [1976].) The Fifth Amendment, however, is a "fundamental trial right of criminal defendants." (Chavez v Martinez, 538 US 760, 767 [2003] [internal quotation marks, citations and emphasis omitted].) Although conduct that occurs by law enforcement prior to trial may impair a defendant's constitutional right under the Fifth Amendment, it is only at trial when such statements or evidence are sought to be used that there is a violation of the Fifth Amendment. (See id. at 767.) Since respondent's challenge did not arise as a violation of his Fifth Amendment right at a criminal trial, the motion to dismiss based on this ground is deemed without merit and denied.

Respondent also challenges the constitutionality of the ERPO statute based upon alleged violations of respondent's right to counsel. Respondent argues that no right to counsel protections 819*819 exist in the ERPO statute "despite the possibility that the basis for the action itself may be a pending criminal matter or that the ERPO matter may result in a criminal case being brought against the respondent." (Respondent mem of law at 14.) The possibility that evidence brought to light in the context of a civil proceeding may be the basis of criminal charges is neither new nor unique to this statute.

However, the ERPO statute is civil in nature, not criminal. Respondent has provided no case law in support of his conclusory assertion of entitlement to a right to counsel in a civil proceeding such as this one. Respondent was afforded the protections of the Sixth Amendment in the criminal proceedings, but this civil statute does not extend that right to representation in this special proceeding at which the only possible penalty is a restriction in his ability to possess firearms for a certain period not to exceed one year. Further, respondent has in fact not been deprived of the benefits of counsel even in this civil proceeding, as he has been represented by counsel up to this point. Thus, respondent's argument is without merit and the motion to dismiss for violations of his Sixth Amendment right is denied.

Lastly, respondent argues that the ERPO statute is unconstitutional in that it deprives respondent of his right to keep and bear arms and unjustifiably burdens his right to acquire and possess weapons for self-defense in his own home in violation of the Second Amendment.

The Second Amendment provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (US Const Amend II.) In 2008, the Supreme Court of the United States expressly held and stated in District of Columbia v Heller that the Second Amendment confers an individual right to keep and bear arms for lawful purposes, such as for self-defense in the home. (See District of Columbia v Heller, 554 US 570 [2008].) This right was determined to be fully applicable to the states in McDonald v Chicago (561 US 742 [2010]).

However, "the right to keep and bear arms, like other Constitutional rights, is limited in scope and subject to some regulation." (United States v Chester, 628 F3d 673, 676 [4th Cir 2010].) In Heller, the United States Supreme Court expressly recognized that "the right secured by the Second Amendment is not unlimited" and, further, it has never been understood as allowing one "to keep and carry any weapon whatsoever in any 820*820 manner whatsoever and for whatever purpose." (Heller, 554 US at 626.) Regulatory measures, such as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions on the commercial sale of arms, were provided by the Supreme Court as examples of presumptively lawful restrictions. (See id. at 626-627.)

In reviewing challenges to laws placing restrictions on an individual's Second Amendment rights, courts have developed a two-step analytical framework in which they first determine whether the challenged legislation implicates or infringes upon conduct or individuals protected by the Second Amendment and, if so, then determine the appropriate level of scrutiny with which to evaluate the constitutionality of that law. (See People v Tucker, 181 AD3d 103, 107-108 [4th Dept 2020]; United States v Jimenez, 895 F3d 228, 232 [2d Cir 2018].)

Beginning with the first prong of the analysis, this court must determine whether an individual for whom there is probable cause or clear and convincing evidence^[2] that respondent is likely to engage in conduct that would result in serious harm to himself or others has a right to keep and bear arms protected by the Second Amendment. "The individual right that Heller found in the Second Amendment protects only the sorts of weapons that are (1) in common use and (2) typically possessed by law-abiding citizens for lawful purposes." (Jimenez, 895 F3d at 233 [citations and internal quotation marks omitted].) Some circuit courts have found that individuals who do not abide the law or are "unvirtuous" as that word was understood by the political elite of the Founding generation are not entitled to Second Amendment protections. (See id.) Criminals and "those who, like children or the mentally unbalanced, are deemed incapable of virtue" fall within that category. (Id., quoting United States v Bena, 664 F3d 1180, 1183 [8th Cir 2011].)

Some argue that individuals who pose a threat of serious harm to themselves or others are not "virtuous or responsible citizens" and, therefore, are not entitled to the protections of the Second Amendment. Others contend that

821*821 "the lack of clear historical evidence showing the existence of laws categorically prohibiting [e.g., the mentally unbalanced] from possessing firearms should cut in favor of the notion that these individuals do have Second Amendment rights ... and that any law infringing upon that right must withstand some type of means-end scrutiny." ("Red Flag" Laws: How Law Enforcement's Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence, 61 BC L Rev at 1529.)

In view of the lack of controlling appellate authority on point, this court holds that these individuals have a right to keep and bear arms protected by the Second Amendment and any statute which substantially interferes with this right must pass the appropriate level of scrutiny.

"Laws that place substantial burdens on core rights are examined using strict scrutiny ... [b]ut laws that place either insubstantial burdens on conduct at the core of the Second Amendment or substantial burdens on conduct outside the core of the Second Amendment (but nevertheless implicated by it) can be examined using intermediate scrutiny." (Jimenez, 895 F3d at 234.)

New York's Red Flag Law at issue herein does not place a substantial burden on a core right of the Second Amendment. A limited-in-time restriction of an individual's right to own or possess a firearm weapon when there is probable cause/clear and convincing evidence to believe that he poses a substantial risk of harm to himself or others does not implicate the core of the Second Amendment's protection, that is, the right of law abiding citizens to keep firearms for self-defense in the home. This court finds that the appropriate level of scrutiny to be applied is intermediate scrutiny, and a review of the law must be undertaken to determine whether the restriction "bears a substantial relationship to the achievement of an important governmental objective." (Tucker, 181 AD3d at 110.)

"[I]t is beyond dispute that New York has substantial, indeed compelling, governmental interests in public safety and crime prevention." (Id. [citations and internal quotation marks omitted].) The ERPO law allows a court to restrict an individual's right to own or possess firearms for up to a term of one year, upon a showing of probable cause/clear and convincing evidence that he is likely to engage in serious harm to himself or 822*822 others as manifested by recent threats of or attempts at suicide or serious bodily harm or by homicidal or other violent behavior. This law and its restrictions indeed bear a substantial relationship to the government's responsibility of protecting the public at large and preventing crime and serious injury to others from individuals who, by their conduct, raise serious concerns that, at that moment and for a limited time in the future, they should not be entrusted with a dangerous instrument. This court finds that the ERPO law at issue herein withstands this level of scrutiny and the constitutional challenge to it based upon Second Amendment rights is denied.

All of the bases set forth by respondent to dismiss the petition are denied. Any arguments not specifically mentioned have been considered and deemed without merit.

With regard to respondent's application to seal the records pending hearing and determination of the final hearing, respondent argues that the underlying facts and outcome of his criminal case are critical to his ability to contest the constitutionality of the ERPO statute and he should not be forced to surrender his right to keep those facts and details secret as the records were sealed in the criminal court. This court notes that no real detail of facts from the criminal case separate and apart from the underlying facts that brought rise to this proceeding have been divulged by respondent. Moreover, respondent has not demonstrated good cause pursuant to 22 NYCRR 216.1 after balancing the interests of the public versus that of the parties. No confidential or other protected information is at risk. The application may be more properly made at a later time. As set forth in CPLR 6346(1), upon expiration of an ERPO order, all records in the proceeding shall be sealed except as to certain listed individuals.

Further, respondent also requests sealing the records due to the potential medical records for which there is an outstanding subpoena that may become part of the record. A motion to quash that subpoena has also been made by respondent. By separate decision, the motion to quash was granted. Thus, these sensitive medical records will not be part of the record in this case.

Upon disposition of this motion, a final hearing for an extreme risk protection order is scheduled for March 2, 2021, at 9:30 a.m. to be held via Microsoft Teams platform.

[1] Pursuant to CPLR 6343, subdivision (3)(c) limits any period of suspension of these rights to one year, which runs from the date of the first order (temporary or final) enjoining the exercise of those rights.

[2] CPLR 6342 provides for a standard of probable cause that a respondent is likely to engage in conduct that would result in serious harm to himself or others for the granting of a TERPO and the more stringent standard of clear and convincing evidence for the granting of a final ERPO under CPLR 6343."