New York’s By Sherry Levin Wallach
New York’s “Red Flag” Law was enacted on August 24, 2019 and it has been codified in Article 63-A of the Civil Procedure Law and Rules (C.P.L.R.) as the Extreme Risk Protection Order. While the intent behind this statute is commendable, as it is meant to protect our communities against gun violence, unfortunately as currently written, it provides for the circumvention of constitutional protections, the Criminal Procedure Law (C.P.L.) and changes the burdens established under the C.P.L. for criminal prosecutions.
The Temporary Extreme Risk Protection Order (TERPO) and Final Extreme Risk Protection Order (FERPO) statues are found in C.P.L.R. §§6340-6347. Not only are the statutes vague and constitutionally unsound, but they arguably violate both U.S. Constitutional Amendments I, II, IV, V & VI and XIV as well as the New York State Constitution. U.S. Const. Amend. I, II, IV, V, & VI & XIV; N.Y.S Const. Art. I. Consequently, these statutes have massive implications both constitutionally and procedurally for those people charged with crimes and thus the criminal justice community.
Sherry Levin Wallach, Esq., is the Deputy Executive Director of the Westchester County Legal Aid Society
The Temporary Extreme Risk Protection Order is a civil court order that is issued by a Supreme Court Judge in a civil part
34
Atticus | Volume 32 Number 2 | Spring 2020 | New York State Association of Criminal Defense Lawyers
