As New York gun rights attorneys we are starting to see cases involving New York Extreme Risk Protections Orders (ERPOS) sometimes referred to as Red Flag Laws. New York’s Civil Practice Law and Rules was amended to add a new Article 63-A which gives a Supreme Court Justice, sitting in the County where a person resides, the authority to take away firearms, rifles and shotguns from an individual without that person having been convicted of, arrested for charged with or even having committed any crime. As a result, these laws, which seem to be sweeping the Country, and are now law in approximately 17 states are extremely controversial since a person can lose their constitutional right without committing a crime.
New York’s Extreme Risk Protection law gives the authority to file Petitions to remove guns to three different classes of people. A police Officer, a family or household member and a school administrator are all eligible to file Petitions seeking an Extreme Risk Protection Order.
The procedure that is laid out by New York Law, CPLR sec 6341 permits one of the lawful Petitioners to file a Petition. Once a Petition is filed, if the Court finds that there is “Probable Cause” to believe the person is a danger to others or themselves, the Court can grant a temporary extreme risk protection order, ex-parte. Meaning that the Court can grant the order without the accused knowing about it or without the accused being able to defend themselves. Probable Cause is a very low standard just meaning that something is more like than not as opposed to proof beyond a reasonable doubt or proof by clear and convincing evidence.
Once that order is issued, the Police may be give permission to execute a search warrant at the person’s home to take their firearms, shotguns and rifles. In addition, pursuant to CPLR 6341 (4)(e), a temporary ERPO is required to have a form which is to be completed and signed by the respondent that asks for a list and locations of all guns owned by the respondent. It is not clear what the penalty would be for a respondent refusing to fill that out but it seems that a person served with such a request should contact an attorney and seek advice for filling out any paperwork.
The procedures involving risk protection orders are complicated and the time frames can be short. For example, once a temporary risk protection order is issued, a hearing is supposed to take place after a minimum of 3 days and withing a maximum of 6 days. That means that a person who gets served with a temporary extreme risk protection order should contact an experienced attorney immediately.
The consequences of having an extreme risk protection order issues against you can be severe. Firstly, an ERPO can last for 1 year and can be renewed. Secondly, the Court is required to notify the following entities of the issuance of a temporary ERPO: the New York State Division of Criminal Justice Services, the State Police, Local Law Enforcement and any firearms licensing authority. In addition, the Division of Criminal Justice Services is required to further disseminate the information to FBI to enter the person’s name in NICS so that they will be ineligible to purchase firearms.
After the initial ex-parte hearing, the person accused has an opportunity to participate in the hearing. At that hearing, the Petitioner has the burden of proving by clear and convincing evidence that the person is a danger to others or themselves. As previously mentioned a final order can last a year but can be renewed upon application. It is not clear in the statute how many times it can be renewed.
Expired risk protection orders are supposed to be sealed.
If you are served with an Extreme Risk Protection Order or a Petition, time frames can be very tight so contact an experienced law firm immediately.