Flagging New York's “Red Flag” Law

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 stat

utes 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.

The Temporary Extreme Risk Protection Order is a civil court order that is issued by a Supreme Court Judge in a civil part on ex-parte application. The applicant may be law enforcement and/or lay people such as school employees, family members, neighbors or other members of the community. It

can be made based on uncorroborated hearsay allegations. All the applicant or other reporter must allege is that the respondent has firearms and is “likely to engage in conduct that would result in serious physical harm to himself, herself or others…..” C.P.L.R. 6342(1).

As discussed above, part of the determination for issuing a FERPO must be that the person is “likely to engage in conduct that would result in serious physical harm to himself, herself or others…”. C.P.L.R. 6343(2) which references section 9.39(a) of the Mental Hygiene Law. Mental Hygiene Law §9.39(a) is for clinical determinations and assessments made by mental health professionals as to as to a person’s mental stability. Therefore, C.P.L.R. §6343 is in direct conflict with the Mental Hygiene Law and allows for lay persons to act as Mental Health Professionals for the purpose of establishing a basis for a Temporary Extreme Risk Protection Order. Id. In essence, a Judge issuing a Temporary or Final Extreme Risk Protection Order is making a finding under the Mental Hygiene law that classifies the respondents mental state without professional analysis or support and/or legal counsel. C.P.L.R. Article 63-A is not clear about how such a finding can or will be used in a subsequent criminal prosecution. This also begs the question of can a person determined under C.P.L.R. §6343 then have the mental capacity to be acting with the requisite intent to be later charged criminally for possession of said weapons?

While a TERPO or FERPO is a Civil Order, it effectively circumvents basic constitutional protections and effectively alters the burdens required for a lawful search and seizure that exist in a criminal proceeding under the C.P.L. The respondent (and potential future criminal defendant) is not represented by counsel during the ex-parte proceeding even though the result of the issuance of the TERPO results in search orders that require respondents to sign a receipt for guns surrendered and/or anything recovered during a search admitting possession thereof, whether or not the items are lawfully possessed. C.P.L.R. Section §6342 states that the temporary order itself must include a form to be completed and executed by the unrepresented responded which must list all the “firearms, rifles and shotguns possessed by him or her and their particular locations”. The execution of this form alone is a clear violation of a respondents Fifth and Sixth Amendment Rights under the United States Constitution and well as the New York State Constitution. U.S. Const. Amend. V. For example, if an illegal gun is recovered pursuant to a search authorized pursuant to a TERPO, the unrepresented respondent is required to sign a receipt for the item and is asked to do so without the advice or representation of counsel. The respondent will then be prosecuted in criminal court for the unlawful possession of a firearm, which may be a misdemeanor or felony charge, both of which carry with them terms of incarceration.

Since this ex-parte application can be made by law enforcement or lay people and the supporting deposition can be based on uncorroborated double or even triple hearsay, See C.P.L.R. §6342, it circumvents the Criminal Procedure Law’s standard of proof required for a search warrant under C.P.L. §690 as well as purportedly changes the standard of proof required for the admissibility of evidence in a criminal case. Upon this Temporary Order, the unrepresented respondent is required to voluntarily surrender all of his firearms and even upon this surrender, law enforcement is authorized to conduct a search of the respondent’s person and home upon reason to believe an enumerated listed weapon is still in the respondents possession. According to C.P.L.R. §6342(8), a search “may” be ordered by the judge pursuant to C.P.L. §690. The word “may” as it is written under C.P.L.R. §6342(8) is left open for interpretation. Some are reading it that a search “may” be ordered in compliance with the protections set forth in C.P.L. §690. Others are ready section C.P.L.R. §6342(8) to mean

that the Judge may or may not issue the order to search a person’s property or place pursuant to the C.P.L.

The TERPO or Final Extreme Risk Protection Order statutes are also unconstitutionally vague as the Order permits and encourages arbitrary and discriminatory enforcement by failing to provide minimal guidelines to be given law enforcement in any ordered searches. See People v. Bright, 71 N.Y.2d 376. The search authorized under C.P.L.R. §6342 provides no perimeters as to the time frame in which the search may be executed or number of times searches may be conducted. Although the statute provides for an order that must be issued by the court, there is no requirement in the statute that said Order set forth parameters for the execution of a search in the statute. It effectively circumvents the standard set out in the Criminal Procedure Law’s for a search warrant and the myriad of case law that has been developed protecting individuals Fourth Amendment Rights. U.S. Const. Amend. IV.

These statutes are not only vague as described above, but they also fail to give respondents adequate notice of the exact nature of the conduct which gives rise to the Order violating the respondents right to due process pursuant to U.S. Const. Amend XIV. These statutes further violate the XIV Amendment of the U.S. Constitution and the N.Y. Civil Rights Laws in that they require, upon issuance of the Temporary Extreme Risk Protection Order be immediately reported to the Department of Criminal Justice Services and the Federal Bureau of Investigation to prohibit further firearm purchases by the respondent. C.P.L.R. §6342(7). This all occurs prior to the respondent being afforded counsel or the opportunity to challenge the application in a hearing. Article §6340 of the Civil Procedure Law which legislates the Extreme Risk Protection Order fails to include criminal protections. In addition, to being constitutionally unsound, not only should the existence of the order not be applicable in criminal proceedings, but all “evidence”/property recovered pursuant to said Protection Order should likewise not be admissible in criminal proceedings. These protections are not included in the statute. Further, since this is a civil proceeding in Supreme Court there is nothing in the statues that provides for any of the witness information, evidence or documentation to be discoverable pursuant to the new criminal discovery laws under C.P.L 245.

I suggest one of two potential remedies to correct the constitutional wrongs and legal inconsistencies created by the statute. The statute can be repealed. Alternatively, it needs amendments to provide the same constitutional protections afforded people under the United States and New York Constitutions. U.S. Const. Amend. I, II, IV, V, & IV; N.Y.S Const. Art. I. Any new legislation must include protections and amendments to the Criminal Procedure Law. All items recovered as a result of the Order, statements made by the responded in response to the application, and any information and/or other derivative evidence must be precluded from being used in a criminal case. The Legislators’ desires, however laudable, cannot be justified to trample the Constitutional Rights of all. The mantra to “do something” cannot result in poorly constructed laws which have no efficacy and violate both Federal and New York State Constitutions. A legislative fix to these statute in their infancy will prevent needless future litigation. A

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