New York like many other states has adopted a new law which gives Courts the authority to issue Temporary and Final Extreme Risk Protection Orders, to take firearms away from individuals who have not committed any crime or offense. These laws, commonly referred to as “Red Flag Laws” are controversial because they give Courts the authority to order the search of a person’s home and the seizure of their firearms, rifles and shotguns even though they have not been arrested, charged or accused of committing a crime.
Although a Temporary Extreme Risk Protection Order can be issued Ex-Parte, meaning with only one side present, a Respondent who has a Temporary ERPO issued against them has important due process, statutory, and constitutional rights.
Don’t waive your rights, and don’t walk into Court unrepresented. Respondents who are the subject of Extreme Risk Protection Petitions or Orders are not entitled to Court appointed lawyers.
Contact an Experienced New York Gun Lawyer today!
A new Article, 63-A has been added to the New York Civil Practice Law and Rules which sets forth the procedure to be used when Courts receive Petitions for Extreme Risk Protection Orders. CPLR §6342 (4)(d)(ii) requires that once a temporary ERPO is issued, the Courts must schedule a hearing within three to six days later, so time frames are very short.
A Temporary ERPO may give the police the authority to execute a search warrant at a Respondent’s residence and search for guns.
The burden to issue a temporary ERPO is very low, Pursuant to CPLR §6342 (1), a temporary ERPO may be issued if the Court finds “Probable Cause” to believe that a respondent is a danger to herself, himself or others. The burden at a hearing for a final ERPO is proof by “Clear and Convincing” evidence which is a much higher burden. Although the Courts are issuing many temporary ERPOs it is very possible to win at the hearing and to get the Order vacated.
The consequences of having an Extreme Risk Protection Order issued against you are significant. Besides, losing your rights to possess or purchase handguns, rifles, and shotguns, the issuance of even a temporary ERPO will result in notification to the New York State Division of Criminal Justice Services, the New York State Police, the local Police and any gun licensing authorities that have issued licenses to the Respondent. In addition, the Division of Criminal Justice Services is required to notify the FBI of the issuance of the ERPO.
Initially, Petitions seeking an Extreme Risk Protection Order may only be filed by three classes of individuals. School administrators, police officers, and family and household members are currently the only classes of individuals authorized to seek Extreme Risk Protection Orders. However, others, may bring information to the attention of one of the three classes of individuals who may then in turn file the Petition. For example, a friend could report a Facebook post to a teacher or a police officer who could then use that information to file a Petition.
Final Extreme Risk Protection Orders are issued for 1 year although CPLR §6345 permits the Court, upon application to renew the Order for another year. (It is not clear from the Statute how many times this can be done).
A Respondent, who has an Extreme Risk Protection Order issued against them may seek a modification of the Order only one time during the period that the Order is in effect, so it is very important that when seeking a modification, the application is complete and persuasive.
Senior Partner, Peter H. Tilem, is a former prosecutor in the New York County District Attorney’s Office assigned to prosecute firearms cases. Today, him and his associates defend the rights of gun owners.
Our New York Gun Rights Attorneys at Tilem & Associates can review your case and determine all of your legal options in order to obtain the most favorable outcome possible. Our firm is confident that we can defend your rights and get you the best possible outcome. Let us protect your rights so you can get your life back on the right track.
Contact us and schedule a free consultation with a lawyer in Westchester County today.
