By Tom Gantert (The Center Square)
New York has conducted a major expansion in the filing of red flag law orders at a time when two state Supreme Court justices have ruled them unconstitutional.
As part of the state’s plan to declare shootings a gun violence emergency, enforcement of the red flag law has skyrocketed.
The number of extreme risk protection orders has increased from 95 in 2021 to 584 in 2022, according to data released from the New York State Police. The 283 in the first three months this year sets a pace for about 1,100 – a 1,057% increase.
In August 2021, then-Gov. Andrew Cuomo issued a gun violence state of emergency. Gov. Kathy Hochul issued an executive order in May 2022 that directed the state police to file more temporary extreme risk protection orders.
Since then, two court rulings found the extreme risk protection orders to be unconstitutional.
In December 2022, state Supreme Court Judge Thomas Moran ruled that the extreme risk protection order was unconstitutional. He said the order didn’t provide the “same constitutional protections” as the state’s mental hygiene law.
Last month, state Supreme Court Judge Craig Brown ruled the temporary extreme risk protection order was unconstitutional. The ruling noted that there wasn’t a “requirement of any input from a medical or mental health expert” in the extreme risk protection order, while the mental hygiene law did require a physician’s opinion.
Peter Tilen, a New York lawyer, states on his firm’s website that “extreme risk protections have become very popular in anti-gun states and are a way for government officials to take away the Second Amendment rights of individuals who have not committed any crime.”
Tilem said that the two cases where state Supreme Court judges ruled the orders as unconstitutional would not have a binding effect until they were challenged in the appellate court and affirmed.
William Duffy, spokesman for the New York State Police, said the court rulings have had “no impact” on his department.
“We continue to apply for TERPOs and ERPOs when appropriate,” Duffy stated in an email to The Center Square.
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Tilem said a state Supreme Court could sign an injunction that would stop the state police from filing extreme risk protection orders by imposing a statewide injunction if a complaint were filed. But he said that would not stop other law enforcement entities such as a sheriff’s office from doing it.
“We have maintained from the beginning that ERPO cases were an abuse of long-held constitutional principles,” Tilem said in an email to The Center Square. “The idea that a person, who has not committed any crime, could lose a constitutional right with little due process flies in the face of long-held constitutional norms.”
The state of New York courts’ website provides a step-by-step process to file an extreme risk protection order.
The petitioner “can be a district attorney, a police officer, a school official, or a member of the respondent’s family or household,” according to the court website. The petitioner completes an application and includes any support documents and files a “Request for Judicial Intervention” form with the court.
The clerk will take the application and bring the paperwork to the judge, who will decide if a temporary extreme risk protection order will be issued that same day.
If the judge issues the order, a police officer will bring a copy of the order to the respondent’s home and remove any guns.
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The National Shooting Sports Foundation supported the court rulings that the Red Flag Law was unconstitutional.
“If an individual is going to be deprived of fundamental constitutional rights, they must be afforded the opportunity to examine and challenge evidence brought against them – they must be afforded due process of law,” the National Shooting Sports Foundation stated in an April press release.
Hochel said the red flag law was making the state safer.
“Protecting New Yorkers is my top priority, and the expansion of the red flag law is taking dangerous, deadly weapons away from those who pose a threat to themselves or others and preventing violence and tragedy,” Hochul said in an October media release. “Working closely with the attorney general and the State Police, we will continue to work to ensure effective implementation of the law to combat gun violence and save lives.”
Syndicated with permission from The Center Square.