New York's Red Flag Law: Extreme Risk Protection Orders

New York's "red flag law" allows courts to issue extreme risk protection orders (ERPOs) that prohibit individuals (known as "respondents") from possessing or trying to acquire firearms if they're likely to seriously hurt themselves or someone else. This article explains the process of getting (or contesting) an ERPO, including who may apply for an order, what kind of proof a court will require before issuing an ERPO, and how the orders are enforced in New York.

Who Can Request Extreme Risk Protection Orders in New York?

In New York, any of the following people (known as "petitioners") may apply for an ERPO:

• a police officer or district attorney in the city of county where the respondent lives
• a member of the respondent's family or household, which includes relatives, a spouse, former spouse, co-parent, someone who regularly lives in the same household (or has done so in the past), and anyone who is or has been in an intimate relationship with the respondent; and
• an administrator (or designated employee) of a school where the respondent is currently enrolled or was enrolled in the preceding six months.

(N.Y. C.P.L.R. § 6340 (2020).)

How to Request a New York ERPO

To start the process of requesting an extreme risk protection order, fill out an application for a temporary ERPO. The form will ask you to explain all of the facts and circumstances that would justify the order. You should attach any documents you have to support your claims (see below for more on the kinds of things a judge will consider). If you think the respondent has or has access to any guns, provide all of the information you have about those weapons, including where they may be located.

Along with the application, you'll need to fill out a "Request for Judicial Intervention" form. If you aren't a public school administrator or law enforcement officer, you should also complete an application to waive the standard $210 filing fee. This waiver request isn't based on income qualifications; court rules authorize filing these requests without fees in ERPO applications.

Once you've downloaded and completed all the forms, take them to the supreme court of the county where the respondent lives to have them filed. (N.Y. C.P.L.R. §§ 6341, 8108; N.Y. C.R.R. § 202.6(b) (2020).)

Decisions and Required Proof for ERPOs in New York

The procedure—and the level of proof needed before a judge will issue an order—is different for emergency and final ERPOs.

Same-Day Decisions on Temporary ERPOs

After you file your paperwork, the court clerk will take it to a judge, who should make a decision on your request that day. The judge may question you and any witness you bring. The judge may issue a temporary ERPO if the information provided with the application shows probable cause to believe that the respondent is likely to do something that will result in a substantial risk of physical harm (to self or others). The judge must consider any relevant information, including whether the respondent has:

• threatened or committed violence or physical force against anyone
• violated a protection order (such as a domestic violence protection order) or another ERPO
• been convicted of a crime that involved the use of a weapon (or is currently facing charges for such a crime)
• used a gun recklessly
• recently bought a gun or ammunition, or
• recently abused drugs or alcohol.

Whether or not the judge issues a temporary order, a hearing will be scheduled to allow more evidence and testimony before a decision on a final ERPO. The respondent must receive notice of the hearing. (N.Y. C.P.L.R. § 6342 (2020).)

Hearings on Final ERPOs

The hearing on a final ERPO will usually be held within six or ten business days, depending on whether a temporary order was issued. However, the respondent can ask for more time (within reason) to prepare for the hearing.

At the hearing, the judge may question the petitioner, the respondent, and any other witnesses. Although the judge will look at the same types of evidence about the respondent's actions and criminal history (as discussed above), the standard of proof is higher at this stage of the proceedings: The judge may issue a final ERPO only if it the petitioner has proved, with clear and convincing evidence, that the respondent is likely to cause substantial risk of physical harm.

A final ERPO may last up to a year. However, within 60 days before the order is set to expire, the petitioner may file a request to renew the order. There will be a hearing on the request, with the same procedures and standard of proof as at the original hearing. (N.Y. C.P.L.R. §§ 6343, 6345 (2020).)

What Are Respondents' Rights in New York to Oppose an ERPO?

If someone has asked for a temporary ERPO against you, you won't necessarily find out about it until you're served with notice of the judge's decision on that request, along with information about the hearing. However, you have the right to attend and participate in the hearing, to testify, and to present evidence and witnesses on your behalf.

Although you don't have to hire a lawyer, you do have the right to legal representation at the hearing—and it would be a good idea if at all possible. An attorney who's experienced with handling restraining orders can help you prepare for the hearing, gather evidence you need to contest the ERPO, cross-examine the petitioner and any other witnesses at the hearing, and protect your rights throughout the proceeding.

If the judge issues a final ERPO, you have the right to make one request (any time while the order is in effect) for a hearing to lift the order. At the hearing, you have to prove, by clear and convincing evidence, that there has been a substantial change in circumstances to justify vacating or amending the order. (N.Y. C.P.L.R. § 6343 (2020).)

Enforcement of ERPOs in New York

If a judge issues a temporary or final ERPO against you, the order will state that you aren't allowed to possess or try to obtain a gun while the order is in effect, and that you must promptly surrender any firearms you have. When police officers serve you with the order, they'll take any guns that you turn over, that are in plain sight, or that they discover during a legal search. (As part of the order, the judge may direct police officers to conduct a search that's consistent with the rules for search warrants.)

Unless you legally transfer ownership of your guns to someone else, the law enforcement agency will give you a receipt and keep the weapons until they can be returned to you legally. (N.Y. C.P.L.R. §§ 6342, 6343, 6344 (2020).)

Getting Your Guns Back After an ERPO in New York

Once an ERPO against you has expired, you'll need to file an application to have your guns returned. The court will send a copy of the application to the petitioner and any licensing officials who have issued a gun permit to you. If either objects to your request, the court must hold a hearing. The court will order the weapons returned to you as long as you aren't prohibited from possessing firearms under another law.

If you weren't the respondent, but law enforcement took a gun belonging to you while serving an ERPO, you can also apply to have the weapon returned. (N.Y. C.P.L.R. §§ 6343, 6344, 6346 (2020).)