on the Law: Extreme Risk Protection Orders Explained | Lifestyles

Recent events in New York and other states have drawn attention to a New York State law that was signed into law in 2019. The “Red Flag” law has garnered more attention there. weeks ago when New York Governor Kathy Hochul signed an executive order requiring the state police. to apply for an extreme risk protection order whenever they have probable cause to believe that an individual poses a threat to themselves or others.

There are various federal and state laws and regulations that affect a person’s ability to purchase and own a firearm. The “red flag” law has been used differently in different parts of the state and there is a renewed effort to educate the public about the law’s existence. Here’s some information on how New York’s “red flag” law works.

An extreme risk protection order is a court order issued to prohibit a person from buying or possessing a firearm, rifle or shotgun when that person could be dangerous to themselves or others . An ERPO may direct law enforcement to search a person, premises, or vehicle for the purpose of locating firearms and removing them. The request may be made by the district attorney, a police officer, a school official, or a member of the person’s family or household. If the request is granted, the order can be in effect for one year, and it can be extended longer if a judge grants additional relief in a later renewal application. The order can also be canceled or modified according to various circumstances.

The application must contain affidavits setting out the facts and circumstances justifying the prohibition of the right to purchase or possess a firearm, rifle or shotgun. Allegations that would lead a judge to temporarily bar a person’s ability to own or purchase a firearm are based on common sense. Relevant factors include any threat or act of violence, the reckless use, display or brandishing of a firearm, rifle or shotgun, or a recent violation of a restraining order. protection, to name a few. A person’s age at the time of an event or the time that has elapsed since a previous event are also relevant factors. Once the application is filed, the judge will also order the local law enforcement agency to conduct a background check and report the results to the court.

If the judge grants the request, the court must immediately notify the state police, any other law enforcement agency of jurisdiction, all applicable licensing officers, and the state division of criminal justice services. of the prescription and the expiry date of the prescription. The Criminal Justice Services Division must then notify the Federal Bureau of Investigation. If an order is changed or overturned, the law requires that the same reporting mechanisms be followed promptly by the court and the Criminal Justice Services Division.

It is common to include mental health in discussions of red flag laws. Efforts are made not to inappropriately confuse mental illness with violent, threatening or aggressive behavior. Although I would say that most people with mental illness are not violent, threatening or aggressive, it is largely impossible not to merge these issues because the “red flag” law borrows from the section of the law on mental hygiene which deals with the involuntary retention of patients in psychiatric hospitals. The ERPO statute uses the definition of “likely to engage in conduct which would cause serious harm to himself, herself or others” from the Mental Hygiene Act. The Mental Hygiene Act defines “likelihood of causing serious harm” as: 1) a substantial risk of physical harm to oneself, manifested by threats or attempts of suicide or serious bodily harm or other behaviors demonstrating that he is dangerous for himself; or, 2) a substantial risk of physical harm to others, as manifested in murderous or other violent behavior by which others are placed in reasonable fear of serious bodily harm.

A Buffalo News op-ed recently reported that there have been around 600 red flag orders since the law took effect in 2019. The article believes it’s likely that the new legislation isn’t widely known enough. or understood to be as effective as intended. be. Another news article reported that judges had granted 589 one-year bans and 875 temporary bans since the law took effect. Greg B. Smith, a reporter for The City, explained that most full-year orders started out as temporary orders, so there’s an overlap in case counts. The article then analyzes some of the data, pointing out that Suffolk County accounts for the highest number of ERPOs issued with 116 full year orders and 187 temporary orders. By comparison, according to the article, only one order for a full year was granted in all five New York boroughs. Brooklyn and Queens each received two temporary orders while no requests were made in the Bronx, Manhattan and Staten Island.

You might be wondering how many claims have been filed in Otsego County since the law went into effect. I was able to get the number of requests made. There were six requests in 2020, three requests in 2021 and there was one request in 2022 to date.

New York’s ERPO law is a mechanism that can be used to limit the use of firearms by individuals who may be dangerous. It looks like it will be used more with the recent executive order and perhaps with more education and training on the ERPO status process.

Susan Lettis is a lawyer in Oneonta.

Martin E. Berry