An Update on Legal Challenges to New York’s Red Flag Law

  • Date:
  • July 05, 2023

In an earlier post, I examined a number of recent decisions suggesting that the Second Amendment only permits individuals to be disarmed based on criminal—rather than civil—process.  Of course, that view has profound consequences for extreme risk protection order laws (also known as ERPO, or “red flag," laws) that establish civil proceedings in which a judge may temporarily disarm an individual after finding that person is likely to harm themselves or others. 

Since gaining popularity over the past several years (20 states plus D.C. now have ERPO laws in places), these laws have been infrequently challenged in court.  With that said, an increasing number of state courts in New York—in areas outside of New York City—have now weighed in on the constitutionality of that state’s ERPO law.  As I previously described, a December decision from Monroe County in G.W. v. C.N.  held the ERPO law unconstitutional under the Second Amendment but focused primarily on the law’s procedural protections, as compared to provisions of state law governing involuntary commitment for mental health reasons.  In a March decision in Hines, an Albany trial court judge dissolved an extreme risk order due to the factual circumstances of the case but suggested that the law itself was constitutional under Bruen when applied to those with mental illness or suicidal ideation. 

In April, at least three additional judges issued opinions in cases where the state’s ERPO law was challenged.  In a decision in Matter of J.B. v. K.S.G., a judge in Cortland County rejected Second Amendment and due process challenges to the ERPO law.  J.B. declined to follow G.W.’s conclusion that the law was suspect because it did not mirror the procedural protections for involuntary commitment under the state’s Mental Hygiene Law, or MHL.  Rather, J.B. held, “because the extreme risk protection statute does not require proof of mental illness, no expert opinion testimony is required in support of an application for an extreme risk protection order.”  The judge went on to conclude that “[t]he extreme risk protection statute provides ample procedural safeguards against an improper deprivation of an individual’s Second Amendment right to keep and bear arms” by providing for a probable-cause standard and a post-deprivation hearing with procedures for returning firearms if the petitioner fails to provide sufficient supporting evidence.

A judge in Ulster County rejected a variety of constitutional challenges to the ERPO law in Haverstraw Town Police v. Galligan.  While noting other decisions that held the ERPO law unconstitutional (including G.W.), Galligan observed that:

There is nothing in the jurisprudence of Heller and Bruen to suggest that [ERPO] proceedings are an affront to the Second Amendment. Indeed, such individualized assessments, which place the burden on the party seeking to remove the weapons, are exactly what Bruen embraces.

Because the judge found the ERPO law was a procedural mechanism only and not “a generally-applicable gun control regulation,” he rejected the Second Amendment challenge.  Galligan further held that the ERPO law was not unconstitutionally vague because it “provide[s] ample notice of the circumstances in which an individual may be made the subject of an ERPO” and “our laws are replete with provisions that require some level of judgment.”   Galligan also rejected G.W.’s conclusion that the ERPO law contains inferior procedural protections when compared to the MHL, observing that the ERPO law requires a court to make factual findings in the first instance while the MHL allows confinement based “on the say-so of a private citizen armed only with a medical license.”  Finally, Galligan rejected Fourth, Fifth, and Sixth Amendment challenges to the ERPO law.  As to the Sixth Amendment, the judge observed that “[a] ruling that counsel are constitutionally required for ERPO respondents would be a significant expansion of Sixth Amendment law” because ERPOs are obtained through civil, not criminal, proceedings and present no direct risk of incarceration.

By contrast, a judge in Orange County largely adopted the analysis in G.W. in R.M. v. C.M. and held the ERPO law unconstitutional on procedural grounds.   R.M. held that the ERPO law provides weaker procedural protections than the MHL does for involuntary commitment proceedings.  

In a recent case in Livingston County, Villone v. McFadden, a judge denied the respondent’s motion to dismiss an ERPO based on G.W.  The state’s brief in that case argued both that the ERPO law fits within a rich historical tradition of “prohibitions on the possession of firearms by dangerous persons,” and that the law provides sufficient procedural protection because “[ERPOs] may only be issued by a court, and only upon a finding that probable cause of a likelihood of harm exists.”  The state also listed pre-Bruen decisions upholding ERPO laws, both in various New York counties and across the country.  It’s safe to assume that the state will likely appeal any decision holding the ERPO law unconstitutional, and those appeals would be litigated before the Second Appellate Division (Monroe County, in the case of G.W.) and Fourth Appellate Division (Orange County, in the case of R.M.).  While an ERPO by its terms is only a temporary deprivation, the possibility that an individual might be subject to an ERPO in the future means that a constitutional challenge generally remains live even if the ERPO itself has expired and the individual’s firearms have been returned.  

New York trial courts remain somewhat muddled in their approach to evaluating the ERPO law’s constitutionality.  However, the decision in Galligan seems largely correct to me in how it deals with the various legal challenges.  While Galligan may go a bit too far in claiming that ERPOs are “exactly what Bruen embraces,” the evolving case law on the felon-in-possession law demonstrates that—even if courts are receptive to allowing challenges to that law in certain instances—courts will ultimately have to settle on some kind of “dangerousness” principle to separate crimes where disarmament is permitted from those where it is not.  To me, at least, that principle should likely encompass ERPO proceedings as well because they are designed to be based on an individualized determination of dangerousness.  And the historical support for felon disarmament (even under an approach that carves out some set of non-violent or non-dangerous felonies) would presumably support ERPO laws—in fact, even disarming all those who commit dangerous felonies is almost certainly overinclusive when compared to the individualized determination and temporary deprivation that occurs in the ERPO context.  Although Rahimi reached the opposite conclusion and held that the individualized determination contemplated by 922(g)(8) rendered that provision non-analogous to historical regulations that swept more broadly by “disarming those who had been adjudicated to be a threat to society generally, rather than to identified individuals,” I think that portion of Rahimi is high on the list of conclusions likely to be rejected by the Supreme Court.

Galligan also involved a Sixth Amendment challenge, with the respondent arguing “that the nature of an ERPO proceeding is one in which a right to counsel should be recognized, such that an indigent respondent should be entitled to appointed counsel.”  The judge rejected this argument, finding that the provision of counsel to ERPO respondents is a pure policy decision and that “neither the U.S. nor the New York Constitutions require the provision of counsel in proceedings such as these.”  An ERPO is a civil proceeding with no risk of incarceration, the judge observed, because the only possible penalty is removal of firearms.  The U.S. Supreme Court has, in fact, rejected the argument that individuals have a right to counsel in civil child custody proceedings even with the potential for incarceration “where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards.”  In Turner, however, the Court ultimately held that the incarceration at issue violated the Due Process Clause because the state did not employ sufficient alternative safeguards. 

Notably, Justice Thomas dissented in Turner and would have rejected the challenge entirely because, “[u]nder an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings.”  Justice Thomas further observed that “[w]hether ‘deadbeat dads’ should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support.”  To be sure, the question of whether to provide counsel in all ERPO proceedings is a legitimate area of policy debate.  Tennessee Governor Bill Lee’s red flag proposal, which is labeled a “temporary mental health order of protection” law and will be considered at a special legislative session in August, includes a right to counsel for all respondents.  But, as Galligan notes, there can be no constitutional right to counsel in these proceedings without substantial changes to existing Supreme Court precedent.  And one would imagine that, if the Court were to expand the constitutional right to counsel (or even some lesser form of legal assistance) into the civil realm, the first order of business would be cases such as child custody and support proceedings where respondents are at risk of incarceration—rather than ERPO proceedings where the respondent is, at most, deprived of property.