By: Passalacqua & Associates

What is the Red Flag Law in New York?

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New York lets family members, school administrators, and the police request court orders that compel gun owners to surrender their weapons. If you are the subject of an extreme risk protection order (ERPO), you must contact a Utica firearms attorney as quickly as possible.

If someone persuades a court in this state that you are likely to harm yourself or anyone else, New York’s “Red Flag” statute, enacted in 2019, allows the court to issue an ERPO that will prevent you from purchasing or possessing a firearm.

How does New York’s Red Flag law work? If you are the subject of an ERPO, what are your rights? What legal steps can you take to challenge an extreme risk protection order and retain your right to bear arms? When will you need to contact a Utica weapons attorney?

If you will keep reading this brief discussion of New York’s Red Flag law and your rights, you’ll find answers to these questions, but if you are named as a “respondent” in an ERPO, you must also contact a lawyer at once for personalized legal guidance and advice.

Who May Ask a Court to Issue an ERPO?

New York’s Red Flag law is intended to protect communities and individuals in this state from gun violence.

The following “petitioners” may ask a court to issue an extreme risk protection order:

a member of a respondent’s family, anyone who resides in the respondent’s household (or has resided there previously), and anyone who is now or has in the past been in an intimate relationship with the respondent

a school administrator or a designated employee at a school the respondent currently attends or attended within the previous six months

a police officer or a prosecutor in the county or city where the respondent resides

How Are ERPOs Issued by a Court?

A petitioner begins the process by asking a court to issue a temporary ERPO. A court may issue a temporary extreme risk protection order if the details included with the petitioner’s request provide probable cause to conclude that the person named as the respondent is likely to cause physical harm (to self or others).

Upon receiving a petitioner’s request, and whether or not a temporary extreme risk protection order is issued, the court will schedule a hearing to decide if a “final” ERPO should be issued. A respondent will be notified regarding the time and location of this hearing.

Whether or not you are named as the respondent in a temporary ERPO, if a hearing has been scheduled to decide if a final extreme risk protection order should be issued against you, you must be advised and represented at that hearing by a Utica firearms attorney who will advocate aggressively for your rights and on your behalf.

Is New York’s Red Flag Law Unconstitutional?

Does New York’s Red Flag law violate the U.S. Constitution? Sherry Levin Wallach, the president of the New York State Bar Association, has written that the law is “confusing, overly complex and riddled with loopholes that failed to allow for basic constitutional protections.”
The number of ERPOs requested by police officers surged in 2022 after a mass shooting on May 14th at a Buffalo supermarket in which ten people were killed.

Governor Kathy Hochul responded to that shooting on May 18th by expanding the scope of the Red Flag law with an executive order that requires the New York State Police to request ERPOs whenever they have probable cause to believe that someone may pose a threat (to self or others.)

However, many of these requests are being rejected by judges because the petitioners are unable to substantiate their claims.

Who Determines That Someone May Cause Harm?

Under the Red Flag law, the determination that someone is likely to cause “serious harm” does not have to be made by a licensed mental health professional. The claim may be made by anyone, including a lay person, without regard to that person’s prior training or experience.

Wallach writes that the law is “vague and constitutionally unsound” and that it violates the First, Second, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution as well as the New York State Constitution. So far, however, no formal challenges to the law have been successful.

How is the Seizure of Firearms Conducted?

If someone asks a court to issue a temporary extreme risk protection order that names you as the respondent, you may not learn of it until you are served with the order along with the details about the final ERPO hearing.

When the police serve you with an ERPO, they will seize any firearms:

  1. that you surrender voluntarily
  2. that are in plain sight
  3. that are discovered while conducting a search

A judge may instruct the police to conduct a search that is in compliance with the legal rules for searches. Unless you transfer their legal ownership to another person, the police will provide you with a receipt for your guns and will hold your guns until they may be legally returned.

If You Are the Subject of an ERPO, What Are Your Rights?

You have the right to be accompanied at a final extreme risk protection order hearing by your Utica weapons attorney, to testify, and to present witnesses and evidence on your behalf.

If the judge issues a final extreme risk protection order, as long as that order remains in effect, you have the right to request another hearing to have the order lifted.

However, at that second hearing, you and your attorney must prove to the court, with strong and persuasive evidence, that there has been a considerable circumstantial change that justifies rescinding or revising the order.

Ask a lawyer who has experience with restraining order cases to prepare you for these hearings. Your lawyer will compile the evidence you need to challenge an ERPO, interrogate the petitioner and other witnesses, and protect your legal rights throughout the Red Flag law process.

What Else Should You Know About the Red Flag Law?

When an ERPO that was issued against you expires, you must complete an application in order to regain the possession of your firearms. The court will forward a copy of your request to the original ERPO petitioner and to any official who has issued you a gun permit.

If any of these parties oppose the return of your weapons, the court will schedule a hearing to consider their concerns, but in most cases, a court will return your firearms to you provided that another law does not prohibit you from owning or possessing firearms.

The Red Flag law is only one of a number of laws that regulate the possession and use of firearms in New York. If you are accused of violating any gun law in this state, it is a serious charge, and you will need to contact a Utica firearms lawyer as quickly as possible.