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By Jill K. Sanders, Esq.

In August of 2019, New York’s “red flag” law went into effect. The law allows a court to issue an Extreme Risk Protection Order (“ERPO”). An ERPO prevents those who show signs of being a risk to themselves or others from purchasing or possessing a firearm.

‘Red Flag’ Laws In General

A “red flag” law allows a family member or police officer to ask a court for the temporary removal of firearms. Usually, this is because the gun owner presents a danger to him/herself or others. Thereafter, a judge will determine whether to issue an order to remove the guns.

The guns may be returned to the owner after a certain period of time. However, until the order is lifted, a person who is found in possession of a gun in violation of such an order may be prosecuted for gun possession.

What is New York’s ‘Red Flag’ Law?

The person asking for an ERPO is the petitioner, and the gun owner is the respondent. In applying to a court, a petitioner must allege the respondent is likely to engage in conduct that would result in serious harm to the respondent or others – a “red flag.”

The petitioner must file an Application for a Temporary ERPO, and a Request for Judicial Intervention (“RJI”). Also, additional supporting documents regarding the respondent’s risk can also be included. Note that the application is kept confidential and is not available to the public.

Then, when all the papers are together, the case must be filed in the county where the respondent resides. A petitioner can ask for a filing fee waiver; otherwise there is a $210 fee. If filing outside of normal business hours, there is an emergency hotline and email.

After filing the application, a judge may issue a temporary ERPO until a hearing can be held. Then, a police officer will serve the temporary ERPO on the respondent and remove the guns.

Within six days of service of the temporary ERPO on the respondent, a hearing is scheduled. At the hearing, the petitioner must prove by clear and convincing evidence that the respondent is likely to engage in conduct that would result in serious harm to him/herself or others. The judge will decide whether to issue a final ERPO.

You can read the full text of the law by following this link: New York’s ‘Red Flag’ Law.

How Long Do ERPOs Last?

In New York, a judge may issue a final ERPO for up to one year. If the respondent wants to show a change in circumstances, he/she can file an application to amend or vacate the ERPO. Or, if a petitioner wants to extend the ERPO, he/she can file to renew it within 60 days prior to the expiration of the original order. At the expiration of the ERPO, the respondent must file an application to have his/her guns returned.

Note that other law enforcement agencies, such as pistol licensing agencies, will be notified of the issuance of an ERPO. As such, after an ERPO is issued, the respondent’s license to possess or carry a gun could be revoked pursuant to Penal Law § 400.00.

Do We Need ‘Red Flag’ Laws?

When a person is considering harming themselves or others, family members and law enforcement are often the first people to see the warning signs. And “red flag” laws are meant to empower those who see a potential risk. As such, ERPOs may help prevent:

• Suicides
• Intimate partner violence
• Mass shootings

At least 17 states and the District of Columbia have some form of “red flag” law, and many more have introduced legislation. And New York is the only state thus far to allow teachers and school administrators to file “red flag” petitions.

As New York’s law just came into effect at the end of August, it remains to be seen how effective the law will be. Further, there may be constitutional challenges to the law which may need to be addressed by the Legislature and/or the courts.

References:

• CPLR Article 63-A
• New York State Unified Court System, Court Help > Safety & Violence > Extreme Risk Protection Orders. Available at: https://www.nycourts.gov/CourtHelp/Safety/extremeRisk.shtml (last accessed Oct. 8, 2019).
• Autumn Callan, “New York governor signs ‘red flag’ gun bill into law,” Jurist (Feb. 26, 2019). Available at: https://www.jurist.org/news/2019/02/new-york-governor-signs-red-flag-gun-bill-into-law/ (last accessed Oct. 8, 2019).
• Penal Law § 400.00