Litigation Highlight: New York State Appellate Court Upholds Red Flag Law

On March 20, the New York State Appellate Division, Second Department (one of four departments that hear appeals from the state trial courts in New York) issued a decision in R.M. v. C.M. upholding the state’s extreme risk protection, or red flag, law.  I’ve previously covered developments with legal challenges to the law here and here.  

In R.M., a trial court judge in Orange County largely adopted the analysis in an earlier trial court decision from Monroe County (G.W. v. C.N.).  G.W. held that “Second Amendment rights are no less fundamental than, for example, Fourth Amendment rights,” and that therefore the red flag law must afford the same “procedural guarantees, such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’” as the state provides in the involuntary commitment context.  The Second Department’s decision in R.M. rejects that conclusion and sets a potentially important precedent in this area.

After describing the background of New York’s extreme risk law and the procedural history of the case, the appellate panel first observed that “[t]he applicability of CPLR article 63-A [New York’s red flag law] is not confined to mentally ill people[, and s]ince a finding of a mental impairment is not required, expert medical testimony is not required.”  Rather the court found that the standard “likelihood of serious harm” required a “fact-based determination” made by a judge without an expert evaluation.  The panel next rejected the trial court’s conclusion that the indeterminacy of the phrase “likelihood to result in serious harm” rendered the red flag law unconstitutionally vague.  The panel disagreed, observing that the state’s Mental Hygiene Law uses similar language (referring to a “likelihood of serious harm”) but has been upheld, that the law lists factors for a judge to consider in making that determination,[1] and that “the statute sets forth a standard for commencement of a proceeding.”

The R.M. panel then considered the respondent’s due process argument premised on the temporary deprivation of Second Amendment rights.  The opinion relied heavily on the Second Circuit’s recent decision in Antonyuk[2] (which we covered here) to conclude that the red flag law “is consistent with the Nation’s historical tradition of firearm regulation in keeping dangerous individuals from carrying guns.”  The panel further observed that the red flag law “contains ample procedural safeguards” and that state courts are permitted to order temporary gun possession bans in other contexts, including as a condition of supervised release. 

Finally, the panel rejected three other constitutional challenges to the law: under the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to assistance of counsel.  The panel noted that the red flag law does not obviate the need for a search warrant and that any weapons possessed in violation of a valid extreme risk order would be illegally possessed, thus justifying a search based on probable cause to believe the respondent is engaged in criminal conduct.[3]  The panel noted that the Fourth Amendment would protect the respondent in any subsequent criminal proceeding where he could move to suppress evidence of seized weapons.  The panel suggested that the red flag law posed no self-incrimination problem because “admissions made pursuant to CPLR article 63-A [likely should] not [be] admissible in criminal proceedings—if and when criminal proceedings arise.”  And the panel rejected the Sixth Amendment claim “because there is no constitutional right to counsel in civil proceedings.” 

R.M. appears to be the first post-Bruen red flag decision by a state appellate court, and it resolves some of the uncertainty created by conflicting earlier trial court decisions in New York state.  One notable aspect of R.M. is its use of Bruen.  As I explored in earlier posts, there seem to be two separate challenges involving the Second Amendment that might be brought against a state red flag law.  First, a pure Second Amendment challenge would argue that the red flag law violates the right to keep arms by temporarily banning firearm possession in a manner inconsistent with historical tradition.  Second, a due process challenge might use the law’s temporary deprivation of Second Amendment rights to argue that greater procedural protections are required.  R.M. subsumes both of these questions under the “due process” heading and, in my view, correctly concludes that the red flag law does not contain any facial constitutional infirmity.

It’s also important to note that R.M. deals with a facial challenge and that at least two New York trial court judges had invalidated the law in all applications.  The decision in R.M., then, does not rule out as-applied legal challenges to red flag laws that might arise in specific factual circumstances—and, in fact, the panel flagged areas where such challenges may arise.  For example, red flag laws can present tricky Fourth Amendment questions associated with the need to seize firearms once an order is issued (or if an order is violated by refusal to surrender firearms) and the possibility that any seized firearms could later be used as evidence in a criminal proceeding.  That’s essentially the enforcement mechanism for compliance with a red flag law—if there was no possible criminal penalty, then it would be possible to violate a red flag order with impunity.  In late 2022, a state appellate court in Washington ruled that the firearm surrender scheme in the state’s red flag law violated both the Fourth and Fifth Amendments.  First, the court held that the statute did not “provide immunity from later prosecution for individuals complying with firearm surrender orders” because it granted discretion to individual prosecutors and that the law permitted the state to “impose a substantial penalty, criminal prosecution, for [the respondent’s] assertion of his privilege against self-incrimination” by refusing to comply with a gun surrender order.   Second, because “[a] Fourth Amendment [] violation occurs at the time of the illegal search, even if the fruits of the illegal search are not later used to prosecute a defendant,” the court held that the statute presented issues under the Fourth Amendment.

While the ruling in Flannery highlights additional complications that may arise upon commencement of criminal proceedings against an individual who refuses to comply with an extreme risk order, R.M. concludes that these are not reasons to facially invalidate a red flag law.[4]  There will be many situations where criminal charges are never brought because the guns are surrendered voluntarily without any search or seizure.  And, when dealing with instances where self-harm may be imminent, exceptions to traditional Fourth Amendment principles apply with good reason and “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”  These are substantial issues, but ones that should be addressed through as-applied challenges or statutory amendments to ensure that constitutional rights are fully respected in any subsequent criminal proceeding.

Finally, while R.M. does not conduct a detailed historical analysis of the dangerousness principle, it bears mentioning that a red flag law is the type of temporary measure that is likely consistent with historical regulatory practice even under a narrow application of Bruen.  For example, at oral argument in Rahimi, Rahimi’s attorney contrasted the federal law at issue in that case with historical approaches that sound quite a bit like modern red flag laws:

There are examples, some of the early justice of the peace manuals that talk about, if you see someone who is on the way to commit a crime with a weapon, you can take the weapon away from them and you don’t have to institute proceedings immediately. However, you do have to institute them pretty quick after that.

It’s perhaps because of this historical practice that even the earlier New York decisions invalidating the law leaned more heavily on due process and comparisons to the state’s Mental Hygiene Law.  For now, however, the Second Department has repudiated such comparisons.

[1] Specifically, the statute directs judges to consider past threats or acts of violence, past charges or protective order violations, reckless conduct involving firearms, and recent firearm acquisition.

[2] In that case, the Second Circuit held that New York’s requirement that concealed carry permit applicants demonstrate “good moral character,” submit a list of co-residents and character references, and provide other information requested by the licensing officer were designed to discern potential dangerousness and thus fairly supported by a “historical tradition of preventing dangerous individuals from carrying guns.”

[3] Alternatively, the panel wrote, a search might be justified under the “special needs” exception to the Fourth Amendment if the respondent was at imminent risk of self-harm.

[4] While perhaps more unusual than facial challenges in the Second Amendment context, such claims can arise under the Fourth or Fifth Amendments as well.  For example, the Supreme Court has ruled that certain hotel and hospital regulatory requirements related to providing guest/patient information to government entities facially violate the Fourth Amendment.