Tuesday, January 3, 2023

N.Y. State Red Flag Law Going Down

12/30/22 WHAM:

Rochester, N.Y. — New York State Supreme Court Judge Thomas Moran ruled last week that one of the state's strongest gun laws is unconstitutional.

The Extreme Risk Protection Order law, also known as the Red Flag law, allows law enforcement to temporarily seize a person's guns based on someone else making a written allegation in a petition to a judge that the person poses a harm to themself or others.

Payton Gendron recently pleaded guilty to murder and hate-motivated terrorism charges for gunning down 10 people in a racially motivated massacre at a Tops store in Buffalo earlier this year.

Less than a year before the May 14 attack, New York State Police investigated Gendron for a threat he made at his high school.

If you are so dangerously crazy that you need to be disarmed, then you need to be hospitalized.  If you have access to a car or gasoline, you are still plenty dangerous without a gun.  

Curiously, G.W. v. C.N. (N.Y.App. 2022) applies similar logic to both:

"Likely to engage in conduct that would result in serious harm to himself, herself, or others" has it's own special meaning in our law. CPLR §63-a directs a petitioner to MHL §9.39 for the definition of "likelihood to result in serous harm," and specifically to paragraphs one or two of subdivision (a) of section 9.39 of the Mental Hygiene Law. In relevant part, MHL §9.39 provides:

'Likelihood to result in serious harm' as used in this article shall mean: (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 that he is dangerous to himself; or (2) a substantial risk of physical harm to other persons as manifested by homicidal or other [*3]violent behavior by which others are placed in reasonable fear of serious physical harm. See, MHL §9.39.

Thus, CPLR 63-a and the Mental Health Law operate under the same definition of "likelihood to result in serious harm." Why should the law not treat similarly situated people the same, with the same Constitutional guarantees and protections, if both are deemed to present as having a "likelihood to result in serious harm."

The New York Legislature drafted MHL § 9.39 to provide a necessary procedure to involuntarily hospitalize a patient for care and treatment. MHL § 9.39 demands that a determination that a patient presents a "likelihood to result in serious harm" is to be made by a staff physician (emphasis added). Further, if the same patient is to be held in a facility for more than 48 hours, a second physician must confirm the first physician's findings (i.e., that the patient presents a "likelihood to result in serious harm"). See, MHL §9.39.

Turning back to 63-a, CPLR §Section 6340(2) lists the possible petitioners who may (or are required to) seek a TERPO/ERPO. The majority of petitioners in Article 63-a cases, however, are not physicians (who presumably possess a psychological or medical background to allow them to make a determination that a person possesses a condition "likely to result in serious harm"). Rather, the great majority of 63-a referrals would come from police officers, District Attorneys, school administrators (or their designees), family and household members, and even mental health professionals (not a physician or psychiatrist) who are not licensed to make a medical determination that a respondent presents a mental condition "likely to result in serious harm" under MHL §9.39.

So if someone is potentially a danger to others, the same standard applies for disarming them as involuntarily committing them, except that involuntary commitment requires doctors with presumed expertise in mental health to make the decision, not some random person.  

There is still room for abuse, but applying the same standard makes sense.  Crazy enough to be disarmed is likely crazy enough to be hospitalized.

By the way, New York Supreme Court is really what most states call a court of appeals.  There is more variety in state court nomenclature than you would guess.


  1. Having watched many episodes of Law and Order, ISTR that a New York "Supreme Court" is just a trial court.

    1. It is actually an appellate court from some lower level courts as well. Pennsylvania's system is incomprehensible.