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New York’s Red Flag Gun Protection Law

On August 24, 2019 New York’s Red Flag Gun Protection Law (also called the extreme risk protection order law) went into effect. Under this law, a petitioner may ask a court to issue an extreme risk protection order (ERPO), which would prevent an individual (the respondent) from possessing or purchasing firearms for a period of time. An ERPO can also direct the police to search the respondent’s person, premises, or vehicle for guns to be removed.

In the wake of multiple mass shootings across the country, including school shootings, police and prosecutors face increased pressure to intervene when an individual is believed to pose a threat to himself or others. However, they often lack the ability to do so where a crime has not yet been committed. They have, thus, faced pressure to either push the boundaries of lawful investigation, or risk public criticism should they be accused of unjust inaction. This law aims to address these challenges by giving power to family and household members – who “are often the first to know when someone is experiencing a crisis or exhibiting dangerous behavior” – as well as police, prosecutors, and certain school employees the ability to ask the court to intervene and potentially prevent someone from being hurt.

The following individuals may apply for an ERPO:

1) A police officer or district attorney of the county or city where the respondent resides.

2) A member of the respondent’s family or household.

3) An employee of a school in which the respondent has been recently enrolled.

If the court finds probable cause to believe the respondent is “likely to engage in conduct that would result in serious harm to himself, herself or others”, the court will issue a temporary ERPO. Whether a temporary ERPO is issued or not, a hearing will then be held to determine whether the court should issue a final ERPO. This hearing, unless the respondent requests additional time to prepare, is to be held within three to ten days from the original application date.

If a final ERPO is issued, the respondent may file an application to modify or vacate the ERPO. This may only be done once while the ERPO is in effect, and the respondent must show a substantial change in circumstances to warrant modifying or vacating the ERPO. The court will schedule another hearing where testimony and argument will be heard, after which the court will decide whether to grant the application. The petitioner may also, within sixty days of the final ERPO’s expiration, file an application to have the ERPO extended. This will also require another hearing.

Given the significant amount of litigation likely surrounding ERPOs, one should consult with an attorney before filing an application for an ERPO, or before going to court for a hearing if served with one.