The New York law that enables the confiscation of guns from people who haven’t committed a crime is unconstitutional, a state Supreme Court judge has ruled.
This red flag law, or the Extreme Risk Protection Order law, lets individuals—including police officers—petition a court to allow the seizure of firearms from a person they believe poses a threat to themselves or others.
If a judge agrees, the judge can direct law enforcement to take guns from the person in question.
The law, which took effect in 2019, has led to the issuance of more than 1,900 removal orders.
However, the law is in violation of the U.S. Constitution’s Second and 14th amendments because it doesn’t “sufficiently protect a citizen’s rights,” state Supreme Court Judge Thomas Moran said in a ruling in late December 2022.
The red flag law, per an update in July 2022, states that police officers and district attorneys must file for a risk protection order “upon the receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself, or others.”
The law points to a separate statute, the Mental Hygiene Law, that defines the likelihood to result in serious harm as “(1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself; or (2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”
The Mental Hygiene Law requires a person to have been admitted involuntarily to a hospital and that a doctor has determined the person to be likely to cause serious harm. A second doctor must confirm the determination if the person is held in a facility for more than 48 hours. In contrast, the red flag law doesn’t require the involvement of medical personnel.
“Why should respondents under the Mental Health Law be granted greater safeguards (such as having their case be reviewed by a physician with the educational background and experience to make such a determination) than matters pursuant to [the red flag law] in which ‘laypeople’ make such a determination?” Moran said. “These are similarly situated people (by legislative definition) but as such are not to be treated equally, nor afforded the same constitutional guarantees that protect all citizens of New York state.”
Nonmedical workers such as police officers shouldn’t be authorized to determine if a person is likely to cause serious harm, according to the ruling.
In addition, under the U.S. Supreme Court’s standards in its 2022 ruling striking down New York’s concealed carry law, the red flag law doesn’t fit under the nation’s tradition of regulating firearms, the judge said.
The majority said in the 2022 decision that the Constitution protects people’s rights to carry firearms and that a government must, for each gun restriction, “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
“This Court is not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, [the law’s] goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be condoned by this Court,” Moran added. “While some may advocate that ‘the ends justify the means’ in support of [the law], where those means violate a fundamental right under our Bill of Rights to achieve their ends, then the law, on its face, cannot stand.”
The ruling only applies to the specific situation and doesn’t strike the law down statewide, a person familiar with the case said.
The ruling came in a case brought by a woman, C.N., whose estranged boyfriend, G.W., lodged an application for the removal of guns from the woman. G.W. claimed that C.N. made statements indicating she’d harm herself with a gun if she had access to one.
According to court documents, though, the petition inaccurately said the statements were made in 2022, but they were actually made no later than Feb. 27, 2021.
The court granted the request and ordered the seizure of any weapons from C.N., in addition to prohibiting her from buying or possessing any guns. Additionally, the court suspended C.N.’s pistol permit based on the risk protection order and the allegations made against her.
Daniel Strollo, an attorney representing C.N., said in a statement that he was “very happy” with Moran’s ruling.
Strollo told WHAM-TV that the red flag law implemented a “very quick and easy mechanism to deprive somebody of their fundamental Second Amendment rights.”
“You have people who are essentially not medical professionals expressing medical opinions that result in the deprivation of rights,” Strollo said. “And you have a procedure that essentially allows somebody to lose those rights without ever having gone in front of a judge.”