Well, that was interesting.
Our alert last week pointed out that “[g]un control advocates are ceaseless innovators in the realm of limiting freedom,” with one of these original ideas being so-called “red flag” gun confiscation laws. The alert added that these laws are open to challenge, citing United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), a case invalidating a federal firearms prohibition that, like “red flag” orders, “works to eliminate the Second Amendment right of individuals subject merely to civil process.”
This month, a judge of New York’s Orange County Supreme Court followed an earlier Monroe County judge in finding that the state’s “red flag” statute was unconstitutional.
The “red flag” law allows proceedings to be initiated by a relative, school administrator, district attorney, law enforcement and others. A police officer may rely on secondhand information (“upon the receipt of credible information”) as the basis for the application. A common feature of such laws allows an initial order to be issued “ex parte” – without notice of the proceedings to the person concerned, and with no opportunity to challenge the allegations.
Although the standard for an order refers to the mental health law, it requires no psychiatric or other expert evidence. Instead, one of the factors that predisposes the court to make an order is evidence that the person acquired, at any time within the previous six months, a firearm, ammunition, or “other deadly weapon,” even if that acquisition was completely lawful.
New York Governor Kathy Hochul took steps last year to make it as easy as possible for state officials and law enforcement to secure “extreme risk protection orders” (ERPOs). In May, Hochul issued an executive order that requires law enforcement officers to seek an order in every case where there was probable cause to believe an order was justified. Three months later, New York’s State Police were reporting a 93% increase in the number of ERPO applications they had initiated.
Concerns have consistently been raised about “red flag” laws – the lack of due process protections, the speculative, weak and one-sided evidentiary requirements, potential for abuse, and, according to Rand Corporation analyses, absence of qualifying studies showing that these orders are effective in reducing violent crime, suicide, police shootings, or unintentional injuries and deaths. Referring to New York’s law specifically, the president of the New York State Bar Association pointed to “this statute’s significant deficiencies” with respect to due process, privacy, right to counsel and other shortcomings, and called it “riddled with loopholes that failed to allow for basic constitutional protections.”
The ruling in the most recent case, R.M. v. C.M., illustrates just how one-sided the underpinnings of an ERPO may be. The initial order rested on an allegation that the respondent, C.M., had “brandished a loaded shotgun, cocked it, and pointed it at his neighbor during a verbal dispute.” C.M. denied the allegation but, because the order was granted ex parte, his version of what happened was not before the court that issued the order. C.M. brought proceedings to vacate the order and challenged the entire statutory scheme.
In granting the application, the court explained that the law deprived a citizen of a fundamental right without due process of law. Although “a licensed physician” or “licensed psychiatrist” could be a petitioner, “there is no requirement that such licensed professional be a petitioner or be involved in any manner to provide any evaluation or opinion whatsoever as a basis for the issuance” of an ERPO.
In contrast, under New York’s mental health law, which used the same yardstick of “likely to engage in conduct that would result in serious harm,” there could be no restriction of a person’s liberty absent a physician’s evidence that the person was suffering from a condition “likely to result in serious harm.” Even so, a second doctor’s opinion was necessary, consistent with the first doctor’s opinion, for any detention extending beyond 48 hours. “Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued,” said the judge. The law had none of these procedural guarantees and “lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms.”
Another potential problem was the law had no mechanism regarding representation of underage respondents and those confined for mental health supervision, who could not legally represent themselves in “red flag” proceedings.
Referring to Governor Hochul’s executive order that eliminated law enforcement discretion with respect to ERPO applications, the court observed that this may have pointlessly wasted police resources because the mandate applied regardless of whether the respondent was already otherwise prohibited from purchasing or possessing a gun. “While certainly well-intentioned, the far-reaching impact of the Executive Order has resulted in applications being filed and hearings being held in hundreds of cases where seasoned law enforcement officers would have been aware that the respondents in those cases already were prevented from purchasing or possessing a firearm, rifle, or shotgun, thereby eliminating the necessity for an application to be filed.”
A newspaper quoted the response of District Attorney for Orange County, who indicated that since last August, his office has handled 150 ERPO applications, of which 109 were granted. He called the decision a “game-changer,” adding that, “I think the statute needs to be procedurally fixed.”