By Michael. A. Morrongiello, PhD

New York’s “Red Flag Law” is supposed to protect us from gun violence. Instead, it sets dangerous precedents that radically alter our judicial system and erode our individual rights.

The new law allows people to apply for an “Extreme Risk Protection Order” (ERPO). To apply, a petitioner (someone who feels threatened) must ask a Supreme court judge to remove the lawfully possessed firearms of a respondent (the person accused of dangerousness). Here’s the definition (Sec. 630 -1):

“Extreme Risk Protection Order means a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.”

It sounds good but the devil is in the details, and there are a lot of details. Who can ask for an ERPO? Law enforcement and school personnel, to name two…. but school personnel means just about everyone except the janitor and secretary (2- c).

“…..school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching license or certificate, and full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate.”

No experience in threat assessment is necessary; if you feel threatened you can apply.

Family members can petition too, but the definition is broad and comes from NYS Social Services law (459-A). It includes married or divorced persons, parents not married who have children in common. And it includes persons who have had an: “intimate relationship…..regardless of whether a relationship is sexual in nature or frequency of interaction between the persons; and the duration of the relationship.”

You can imagine the potential flood of petitions from people who are duking it out in divorce court.

Also included are, “any other category of individuals deemed to be victims of domestic violence…...”

The law empowers the following organizations,

“Residential programs for victims of domestic violence,” “Domestic violence shelters,” “Domestic violence programs,” and finally “Non-residential program for victims of domestic violence.”

A firearms owner who has gone on a date or had a brief relationship can be accused. What does “deemed to be a victim of domestic violence” mean, and who does the deeming?

The confiscation of rights and guns begins (S. 6341).

“In accordance with this article, a petitioner may file a sworn application, and accompanying supporting documentation, setting forth the facts and circumstances justifying the issuance of an extreme risk protection order….Such application form shall include inquiry as to whether the petitioner knows, or has reason to believe, that the respondent owns, possesses or has access to a firearm…..”

If the court deems the accused a risk, they will issue a temporary ERPO. The accused need not be present. You can be denounced as a “potential” murderer and not even be present to defend yourself. In legal language this is known as “exparte” (S 6342-1). Judges have historically avoided this, until now.

“….the court may issue a temporary extreme risk protection order, ex-parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm…….upon finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others…..”

The judge is now a mind reader. The phrase, “likely to engage in conduct...” turns American justice inside out. Now the accused, instead of being innocent until proven guilty, is assumed guilty. The accused does not face his accuser, shifting the entire process. Will the accused have to answer the question, “When did you stop being a menace to society?” This is as totalitarian as it gets.

The court may consider the following (S 6342 2 a,b,c,d,e,f,g):

"In determining whether grounds for a temporary extreme risk protection order exist, the court shall consider any relevant factors including but not limited to, the following acts of the respondent: (a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person; (b) a violation or alleged violation of an order of protection; (c) any pending charge or conviction for an offense involving the use of a weapon; (d) the reckless use, display or brandishing of a firearm, rifle or shotgun; (e) any history of a violation of an extreme risk protection order; (f) evidence of recent or ongoing abuse of controlled substances or alcohol; or (g) evidence of a recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefore."

Each of acts A thru F already violates the law, and results in a denial of purchase on the NICS Federal database and the arrest and removal of a person’s weapons under existing NYS law. Then, “the court shall consider any relevant factors,” a gaping hole that any judge can use to deny a constitutional right. The purchase of ammunition six months prior to the petition fits the definition of “recent.” A lawful gun owner is now a suspect. An “alleged violation of an order of protection” is a reason to grab the accused’s guns. Alleged by whom and substantiated by what?

The gun removal standard is frighteningly low. Note the language in S. 6342 3.

"The application of the petitioner and supporting documentation, if any, shall set forth the factual basis for the request and probable cause for issuance of a temporary order. The court may conduct an examination under oath of the petitioner and any witnesses the petitioner may produce."

What is the supporting documentation, “if any”, to have someone deemed a threat? Then note that the court “may” examine the petitioner and any witnesses under oath, not shall but may: advantage accuser— disadvantage gun owner.

If the judge grants a temporary ERPO, a horde of locked and loaded police will serve the order and confiscate the accused’s guns, creating an unwarranted risk for all. He must provide a list of all of his guns to the authorities (S. 6342 4, iii, e). The hearing to determine if the order should be permanent is scheduled in 3 to 6 business days. The law mandates a quick pace, but what government agency moves rapidly? The judicial calendar is already swamped. The accused is advised that he “may” need an attorney. “May?”

If the court does not grant the temporary ERPO, the hearing still goes forward, unless the petitioner withdraws the accusation (6342 5).

“If the application for a temporary extreme risk protection order is not granted, the court shall notify the petitioner and unless the application is voluntarily withdrawn by the petitioner, nonetheless schedule a hearing on the final extreme risk protection order.”

The court then informs every law enforcement agency involved in the temporary order, including the FBI (7 (a) (b)). The accused’s reputation is damaged.

At the hearing the burden now shifts to the accuser, who must prove the accused is a threat. The court will be cautious; it will scrutinize the accused, and likely terminate his rights to err on the side of caution. Never mind the legal smokescreen of a “civil” proceeding; the criminal implications are massive and life-altering. The respondent stands accused of (maybe) joining the ranks of humanity’s lowest scum— a murderer or worse, a mass murderer. Then there’s the matter of expense. Attorneys cost, and the respondent may also have to hire an expert. What if the accused can’t afford a lawyer, let alone an expert? People on the lower end of the economic spectrum will at a major disadvantage.

“At the hearing pursuant to subdivision one in this section, the petitioner shall have the burden of proving by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself or others...”

If the order is made permanent, the police takes the accused’s firearms. The court will also notify all involved law enforcement agencies. If the court does not find sufficient cause to make the order permanent, then the firearms are returned.

This will only affect lawful gun owners. Criminals need not worry - they will still be able to get guns.

In the movie Minority Report, citizens are arrested before they commit a crime because three psychics can predict what they will do. But in New York State, our unique Constitutional rights hinge on the opinion of one lawyer in black robes peering into the human heart to predict the future.