AN ERPO RED FLAG CASE - PROCEDURE AND SUBSTANCE

Duguid v. KATHAN, 2022 NY Slip Op 32972 - NY: Supreme Court, Saratoga 2022:

"Petitioner, a New York State Police Investigator ("State Investigator"), commenced this proceeding pursuant to CPLR Article 63-A, seeking an extreme risk protection order ("ERPO") against Respondent, Brandon W. Kathan ("Respondent"). The petition seeks to prohibit Respondent from purchasing or possessing a gun for a period of up to one year.

According to the petition and supporting papers, on July 14, 2022, the victim (Nicole) informed Respondent (then 21 years old) that her sister (Tristan) was no longer paying for the insurance on a pickup truck that he drove. In response, Respondent became enraged. He threatened to have his girlfriend and her family beat her up. He then obtained a metal baseball bat from the pickup truck and swung it at her while stating that he was going to "smash [her] head in." During the encounter, Respondent hit the deck railing with the bat, damaging it, and later punched the tailgate of the pickup truck with his fist. Respondent was reportedly "out of control" and caused the victim to be "in fear of [her] life and safety."

After the encounter, Respondent continued to harass the victim. He called 911 and reported that the victim had fired multiple rounds from a rifle at him. Respondent, however, later admitted to the police that he made up the part about the victim shooting at him. He stated that no guns were involved in the incident. He made statements that he was not in a good state of mind and needed mental help. He allegedly told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself."

Respondent was arrested in connection with the incident for Menacing in the 2nd Degree, Criminal Possession of a Weapon in the 4th Degree, and Falsely Reporting an Incident in the 3rd Degree. While in custody, he appeared to be distraught with multiple threats of self-harm and requested to speak with a mental health professional. He was later transported to Saratoga Hospital for a mental health evaluation.

Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief. As a result, on July 15, 2022, the Court issued a temporary extreme risk protection order ("TERPO") and scheduled a hearing for July 22, 2022 (see CPLR 6342; 6343). On July 16, 2022, Respondent was notified of the hearing date/time and acknowledged service.

Prior to the hearing, Petitioner conducted a background investigation into Respondent and reported the results to the Court to consider on the application, as required by the applicable statute (see CPLR 6342[9]). The background investigation revealed that Respondent had been previously arrested for Criminal Mischief in the 4th Degree on May 30, 2022 and April 15, 2021. In one instance, his aunt (Charlene) allegedly observed him throw an object at her pickup truck, damaging the front fender. When confronted, he allegedly stated to her, "how do you like that bitch." In the other instance, Respondent was allegedly caught on camera and later admitted to picking up the neighbors' chairs and planter and throwing them at 12:30 a.m. in the morning, damaging these items.

Respondent is also the subject of two orders of protection. The first is out of Hadley Town Court expiring on January 6, 2023, and the second is out of Lake Luzerne Town Court expiring May 11, 2023. He is also a listed subject on 12 separate Domestic Incident Reports from March 23, 2012 to the present.

Most of the prior reported incidents involved verbal and physical arguments with close family members. In March 2012, Respondent was reportedly "out of control," acting verbally abusive and throwing things around the house. The following year, Respondent threw a screwdriver in the general direction of his sibling. More recently, in June 2017, after his mother told him she could not drive him to the DMV that day, Respondent exhibited uncontrollable anger and punched an outdoor grill numerous times causing his hand to bleed, and then he threatened to kill everyone with a knife when they fell asleep. When a household member attempted to calm him down, Respondent slapped him in his face.

Between 2019 and 2021, Respondent's uncontrolled behavior resulted in a damaged windshield in one instance and verbal arguments easily escalating into physical violence in other instances. Further, in April 2021, Respondent reportedly told his girlfriend that if he had a firearm, he would kill himself.

In advance of the hearing, Petitioner advised the Court that the New York State Attorney General would not be representing him in this matter. By letter dated July 21, 2022, the Court informed Petitioner that if he did not have counsel, the hearing would be conducted within the parameters permitted by law. Specifically, the Court informed Petitioner that it would not allow an unrepresented investigator to present witnesses or cross examine any witnesses produced by Respondent. Subpoenaed witnesses (specifically, the victim(s) and witness(es) with personal knowledge of the underlying event) would be permitted to take the stand to tell the Court about their recollection of events in the form of a narrative. The Court advised Petitioner that it would nevertheless hear the petition and consider the papers submitted, together with any additional information gleaned from any narrative testimony from the subpoenaed witnesses.

At the hearing, Petitioner was not represented by counsel. Respondent and the two subpoenaed witnesses (the victim and her sister) did not appear. The Court then proceeded with the hearing and considered only the petition, the materials submitted in support of the petition, and the background investigation report (see CPLR 6343[2]). In accordance with the prior letter ruling, Petitioner was prohibited from calling witnesses, introducing exhibits into evidence, and making legal arguments.

At the conclusion of the hearing, the Court reserved decision on whether the proof was sufficient to grant the petition.

The Absence of Counsel

Prior to addressing the merits, the Court will first discuss the reasons underlying its prior rulings related to the absence of counsel. As in many other cases, the police officer was statutorily required to file an ERPO petition (see CPLR 6341). However, the State (as his employer) did not provide him with legal representation. This raises the issue of whether a non-attorney police officer may appear on behalf of the State in a court of record in the absence of a counsel and, if so, the extent to which the petitioner may pursue the State's cause without counsel.

Generally, a petitioner may plead and prosecute his or her own cause personally or through counsel (see CPLR 105[c]; 321[a]; Herczl v Feinsilver, 153 AD3d 1336, 1337 [2d Dept 2017]; Matter of Mulligan v Mulligan, 175 AD2d 335, 336 [3d Dept 1991]). This right is expressly articulated in CPLR 321(a), which governs civil proceedings before this Court.

CPLR 321(a), however, is limited to a situation in which a party is prosecuting or defending his or her own individual interests/rights (see e.g. Alaina Simone Inc. v Madden, 200 AD3d 589, 590-591 [1st Dept 2021]). It does not authorize or address the situation of a State employee who has commenced a lawsuit in his representative or official capacity (see id).

Further, where a person has sought to appear or prosecute a cause for another person or entity, the courts have generally not allowed the case to proceed in the absence of counsel (see Alaina Simone Inc., 200 AD3d at 590-591 ["estate representatives cannot act pro se because their own individual liberty or property interests are not involved"]; Gershon v Cunningham, 135 AD3d 816, 817 [2d Dept 2016] [defendant could not file a notice of appeal on behalf of another defendant]; Blunt v Northern Oneida County Landfill [NOCO], 145 AD2d 913, 914 [4th Dept 1988] [husband could not appear on behalf of his wife]; Matter of Trentin v Civetta Contr., 10 AD2d 595, 595 [3d Dept 1960] [Workmen's compensation representative who was not a lawyer could not appear for a party in the Appellate Division]; Park v Song, 61 Misc 3d 1047, 1049 [Sup Ct, New York County 2018] [derivative plaintiff asserting the rights of the corporation/LLC had to be represented by counsel]). "These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court" (Pridgen v Andresen, 113 F3d 391, 393 [2d Cir 1997]).

In fact, the Judiciary Law makes it unlawful for a person who is not a licensed attorney "to practice or appear as an attorney-at-law ... for a person other than himself or herself in a court of record in this state" (Judiciary Law § 478 [emphasis added]; see also Judiciary Law § 484 [prohibiting any natural person who is not a licensed attorney from asking or receiving, "directly or indirectly, compensation for appearing for a person other than himself as attorney in any court" (emphasis added)]). "[T]his prohibition is intended to protect citizens `against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work'" (Jemzura v McCue, 45 AD2d 797, 797 [3d Dept 1974] [citation omitted]).

There are certain exceptions to these rules. For example, in People v Black (156 Misc 516 [County Court, Otsego County 1935]), the defendant was convicted of a violation of the game laws, a misdemeanor. On appeal, the defendant contended that the case was improperly prosecuted by an inspector of the Conservation Department, a person not licensed to practice law. In affirming the judgment, the court rejected the defendant's contention, explaining:

"We do not believe that the Legislature of this State sought to bring about so absurd a situation as is here presented. If it were intended that every time a rabbit be snared or a frog speared after dark that the heavy artillery of the offices of the Attorney-General or the district attorney be wheeled into action, then the said Legislature was flying in the face of common sense and upsetting a century-old institution."

Similarly, the Court of Appeals, as well as the courts of other states, have held that a police officer may prosecute minor offenses (see People v Soddano, 86 NY2d 727, 728 [1995]; People v Van Sickle, 13 NY2d 61, 62-66 [1963]; People v Czajka, 11 NY2d 253, 254 [1962]; State v Sossamon, 298 SC 72, 378 SE2d 259 [South Carolina 1989]; State v La Palme, 104 NH 97, 179 A2d 284 [New Hampshire 1962]).

The reasoning expressed (if anything) for allowing a non-attorney to prosecute or present a case is often necessity, statutory authority, the simplicity and informal nature of the proceedings, and/or the long history of such practice (see People v Black, 156 Misc at 516; see also State v Barlow, 372 SC 534, 643 SE2d 682 [South Carolina 2007]; Leverette v State, 248 Ga App 304, 546 SE2d 63 [Georgia Ct App 2001]; Noethtich v State, 676 NE2d 1078 [Indiana Ct App 1997]).

Notwithstanding, such matters have still been the subject of some debate. In State ex rel. McLeod v Seaborn (270 SC 696, 244 SE2d 317 [South Carolina 1978]), for example, the dissenting opinion discusses the dangers of such a practice given the complexity of the law and the various ethical issues that arise from allowing police officers to act as prosecutors.

In addition to the exceptions decided under the case law, there are also additional exceptions expressly set forth in varying statutes (see Judiciary Law § 478; N-PCL § 1403[b][2] [providing statutory authority for a not-for-profit corporation for the prevention of cruelty to animals to represent itself in certain cases]; Workers' Compensation Law § 24-a [requiring non-attorney representative to be licensed by the Workers' Compensation Board]; Labor Law § 538 [requiring authorized agents to be registered in order to represent individuals in proceedings before the appeal board]; State Administrative Procedure Act § 501 ["Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency."]; see also Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 233 AD2d 602 [3d Dept 1996] [holding that the representation of an association by a non-attorney during an administrative hearing did not violate Judiciary Law § 478, which applies only to courts of record]).

In determining whether statutory authority exists for an exception, the decision in Matter of Sharon B (72 NY2d 394, 396-401 [1988]) is most informative. There, the Court of Appeals held that a not-for-profit corporation for the prevention of cruelty to children could file a complaint and represent itself during the proceedings, without having to retain counsel. The applicable statutes at the time provided that these societies could "prefer a complaint" before the court and "may aid in presenting the law and facts to such court[.]" The Court noted that "prefer" is commonly defined to include not only instituting a case but also prosecuting, trying and proceeding with such. In addition, the Court relied on the plain language of Judiciary Law §§ 478 & 484, which at the time exempted from its general prohibition certain cases brought by "officers of societies for the prevention of cruelty" (Matter of Sharon B., 72 NY2d at 399).^[1]

Considering the circumstances of this case, the Court finds that CPLR 321(a) does not authorize the Petitioner to proceed with prosecuting this matter as if he were a party acting on his own behalf. The Petitioner is not actually representing himself in his individual capacity. Rather, he is suing in his official capacity and representing the larger interests of the State to promote the health, safety, and welfare of the public.

As discussed above, the Petitioner's right to file this petition derived solely from his status as a police officer and his duty to file a petition as a police officer (see CPLR 6341). Petitioner, moreover, has also received compensation from his employer for engaging in this litigation. He is not acting out of his own sense of personal responsibility. The State could have also certainly tendered counsel for his representation, however, it simply chose not to do so in this case (see Executive Law § 63[1]).^[2]

Notwithstanding, the Petitioner most certainly had the capacity and standing to commence this proceeding. The CPLR denominates a police officer as a proper party to the case (see CPLR 6340; 6341). In fact, police officers are not only authorized to file such petitions, but they are in fact required to do so when probable cause exists to support such applications (see CPLR 6341). The CPLR further requires the courts to adopt forms that may be used by police officers for these applications, and the standard forms have a line expressly for a petitioner to sign rather than his or her counsel, if any (see id.).

The superintendent of state police is also required to provide all members of the New York State Police with written policies and procedure and educational materials regarding the availability of and procedure for filing ERPOs, including the requirements for police officers to do so when probable cause exists (see Executive Law § 214-h). The CPLR also permits the Court to grant a temporary order based solely on the initial petition and other supporting materials submitted with it, without a hearing (CPLR 6342). The CPLR further permits the Court to grant a final order based on the petition, the supporting papers, and the background investigation report, even when no other evidence is presented at the hearing (CPLR 6343).

When considering these circumstances, along with the urgency of these petitions and the short time periods involved in such cases, the Court concludes that the Legislature has in fact authorized the Petitioner to file his petition without counsel and that the Court may reach the merits of the petition even in the absence of a prosecutor/counsel in the case (compare Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 AD3d 452 [1st Dept 2012]).

Moreover, given the circumstances, the Court does not find that the police officer engaged in the practice of law by completing the official forms and filing them with the Court. Nor was it the practice of law when the police officer provided his investigation materials to the Court to consider in connection with the petition, as they are materials which are normally prepared by police officers in the performance of their duties.

Glaringly absent, however, is any statutory language authorizing the non-attorney police officer to act as the prosecutor in the case or otherwise serve as the State's legal representative (compare Matter of Sharon B., 72 NY2d at 396-401; Matter of Darlene C., 247 Conn 1, 717 A2d 1242 [Connecticut 1998]). The Court finds that this deficiency is critical. Indeed, if the Legislature had intended to allow a police officer to fully prosecute a red flag case and act in the same manner as an attorney during the evidentiary hearing, the Legislature should have specifically stated that to be the case.

The statutes at issue for example do not use the much broader language in Matter of Sharon B. Rather, the statutes at issue use the word "file" rather than "procure" and omit any reference to "aid[ing] in presenting the law and facts to [the] court[.]" In addition, the Judiciary Law also does not carve out an exception for a non-attorney police officer to prosecute a civil case. Nor is there any long-standing body of case law allowing a police officer to engage in such conduct.

Further, the benefit and need for a prosecutor should not be lightly set aside. Unlike a case involving a traffic ticket or petty crime in local criminal court, a red flag case involves a civil proceeding in the highest trial-level court for civil cases in this State's court system. There are also significant liberty interests at stake, namely, a respondent's fundamental constitutional right to keep and bear arms (see US Const, 2nd Amend). A respondent is entitled to a full evidentiary hearing and the right to cross examine witnesses (see CPLR 6343). The proceedings may require motion practice, in person testimony, cross examination, and the presentation of legal arguments. A petitioner is also required to prove his or her case by clear and convincing evidence to obtain the relief requested (see CPLR 6343[2]).

A non-attorney police officer (even if highly competent such as the Petitioner in this case) is not trained to handle such legal matters, just as an attorney is not trained to make arrests and conduct police investigations. When such legal matters arise, this Court must therefore limit a police officer's participation in the case to avoid a violation of Judiciary Law §§ 478 & 484. This of course places a petitioner at a significant disadvantage, especially in a case where the respondent retains counsel or elects to testify on his or her own behalf. Notwithstanding, even in the absence of counsel, the Court will still entertain the petition and decide the case on its merits.

Merit Analysis

Notwithstanding the lack of any witnesses called to testify, as indicated above, the statute permits the Court to base its decision on the contents of the petition, supporting papers, and background investigation report (see CPLR 6343[2]). The Court must therefore consider whether these materials are sufficient to grant the petition.

To obtain a final ERPO for a period of up to one year, the petitioner must establish that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others (see CPLR 6343[2]).^[3] There must be either, "1. substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], 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" (Mental Hygiene Law § 9.39 [a]; see CPLR 6343[2]).

In deciding the issue, the Court must consider various factors or so-called red flags, taking into consideration the date when the event(s) occurred and the age of the person at the time (see CPLR 6342[2]; 6343[2]). Such red flags include, but are not limited to, the following acts of the respondent:

"(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" (CPLR 6342[2]).

Unlike a temporary order (TERPO), a petitioner seeking a final order (ERPO) has the burden of proving his or her case by clear and convincing evidence (see CPLR 6343[2]). This is a higher and more demanding standard than the preponderance of the evidence standard (see Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept 2017]).

To satisfy this standard, the evidence must make it "highly probable that what [he or she] claims is what actually happened" (PJI 1:64; see Matter of Duane II. [Andrew II.], 151 AD3d at 1130-1131; Prince, Richardson on Evidence § 3-205 [11th ed]). This requires "evidence that is neither equivocal nor open to opposing presumptions, and it forbids relief whenever the evidence is loose, equivocal, or contradictory" (Matter of Monto v Zeigler, 183 AD3d 1294, 1295 [4th Dept 2020] [internal quotation marks and citations omitted]; see Matter of Duane II. [Andrew II.], 151 AD3d at 1130-1131).

Here, the proof was clear that Respondent is and has been for quite some time violent and mentally unstable. Last month, in a fit of rage, he acted irrational and displayed uncontrollable anger when he threatened to bash his family member's head in with a baseball bat. He aggressively advanced towards the victim with the metal bat, swung it at her, and hit the deck railing with it. In the victim's words, Respondent was "out of control" and caused her to be "in fear of [her] life and safety."

Afterwards, Respondent further confirmed his own mental instability by acknowledging that he was not in a good state of mind and needed mental help. He made multiple threats of self-harm and told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself"

In addition to the incident last month, Respondent currently has two current orders of protection against him, with pending charges for other recent crimes resulting from the intentional destruction of personal property. He has used abusive and threatening language toward his victims, calling his aunt in one instance a "bitch." He has been involved in multiple instances over the years involving verbal arguments that easily escalated into physical violence. He has thrown items at people, hit them, threatened them, punched objects, and destroyed property. In one instance, he went so far as to threaten to kill everyone with a knife when they fell asleep. As recently as April 2021, he also commented that if he had a firearm, he would kill himself

Now, just last month, the Court is presented with a situation in which Respondent has once again displayed uncontrollable anger and unprovoked violent behavior, threatening to murder the victim. Again, just last month, he has expressed threats of self-harm and complaints of mental instability.

In response to the evidence against him, Respondent has failed to dispute the circumstances surrounding the current incident or any of the prior instances. Nor does he dispute that he has two pending orders of protection against him and pending criminal charges against him involving violence. As such, the allegations are unrefuted.

Based on the record, the Court finds that the evidence in this case was strong enough to satisfy the high standard of proof required. The petition is therefore granted. Nevertheless, the Court cautions that this may not have been the final decision in this case had Respondent appeared, retained counsel, testified, presented evidence, or otherwise defended against the allegations made against him.

[1] Notably, the Legislature later amended these statutes (see L 1993, ch 201). The exception for "societies for the prevention of cruelty" in Judiciary Law §§ 478 & 484 is now limited to "societies for the prevention of cruelty to animals" (emphasis added). In addition, N-PCL § 1403(b)(2), in its current form, provides that "[a] corporation formed for the purpose of preventing cruelty to children, when represented by an attorney duly admitted to the practice of law, may prosecute a complaint before any court ..., and may aid in presenting the law and facts to such court ..." (emphasis added).

[2] The Attorney General's Office has represented police officers (employees of the New York State Police) during red flag hearings conducted before this Court in two other cases. In contrast, counties and cities are responsible for providing representation for their police officers (see e.g. County Law § 501 ["The county attorney shall be the legal advisor to ... every officer whose compensation is paid from county funds in all matters involving an official act of a civil nature. The county attorney shall prosecute and defend all civil actions and proceedings brought by or against the county, the board of supervisors and any officer whose compensation is paid from county funds for any official act...."]).

[3] This one-year period may be extended for an additional period upon application (see CPLR 6345)."

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."