Respondent Theodore J. McNeil moves to dismiss petitioner Investigator Adrian A. Melendez, New York State Police’s (NYSP) application pursuant to CPLR Article 63-A for an Extreme Risk Protection Order (ERPO), which would preclude respondent from possessing or purchasing a firearm for a year, on the basis that the ERPO statute is unconstitutional. Papers Considered NYSCEF DOC NO. 33-46; 51-60 1. Notice of Motion/Affirmation of Marco E. Fava, Esq./Affidavit of Theodore J. McNeil/Exhibits A-J/Memorandum of Law in Support 2. Affirmation in Opposition of Kathleen Kelly, Esq./Memorandum of Law in Opposition/Exhibits 1-8 DECISION & ORDER FACTUAL AND PROCEDURAL BACKGROUND The record indicates that respondent had been employed by the City College of New York (CUNY) as a campus safety officer for approximately 30 years. Respondent was unable to work and/or was terminated due to an injury and had not received a paycheck from CUNY for the past six months. On June 11, 2023, respondent emailed the New York State Executive Chamber addressing the “Governor,” as follows: “I like to take this opportunity to state that I don’t know how we as a nation got to the place of indifference toward each other. You see I was a new york state peace officer. I was terminated for getting injured on the job. My employer cuny = City University of New York fail to file the proper paperwork for my accident and has attempted to make me the villain. My very basic question is how is someone suppose to live without an income or health insurance. After thirty years of service you are only as good as your last assignment. How can you push people to brink of survival and expect a calm approach to their life situation. I have a different perspective on active shooter scenarios. It doesn’t make it right but what do expect when you corner a wounded animal. I have been met with such political correct nonsense it is unreal. All to which is remain patient we will get to you. I just want to say we as a nation need to do better than we are.” The email was referred to NYSP investigators, who interviewed respondent at his home. Respondent regretted using the term active shooter and advised them that he did not have any additional firearms. Petitioner, a NYSP investigator, was assigned to the case and compiled a record of the interviews held. On June 16, 2023 petitioner filed an application for an ERPO and also sought a temporary ERPO (TERPO). This Court issued a TERPO on the same day, pursuant to CPLR 6342. The standard for a TERPO is “probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL §9.39 (a),” while the standard for granting a final ERPO is clear and convincing evidence. See CPLR 6342 and 6343. The TERPO prohibited respondent from “purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun” and ordered him to “immediately surrender any and all” such items. A TERPO search order was executed, and no firearms were found in respondent’s residence. The matter was set down for a hearing for a final ERPO, and the TERPO is in place until that date. In the interim, respondent moves to dismiss the application, on the basis that the extreme risk protection order statute, as set forth in CPLR article 63-A (CPLR 6340-6347), also known as the Red Flag Law, is unconstitutional, as it violates his rights under the first, second, fifth and sixth amendments of the United States and New York Constitutions. First and Second Amendments and Due Process Specifically, respondent argues that the Red Flag Law is drafted in a vague manner that infringes his first amendment rights of freedom of speech. According to respondent, the email that he sent was not a threat or the type of speech that could be prohibited. He claims that, when petitioner allegedly decided that he could not charge respondent with a crime, he decided to file the ERPO as a way to circumvent respondent’s right to free speech. In opposition, petitioner lists several recent ERPO challenges and notes that many New York Courts have granted ERPO orders and found them constitutional after a thorough analysis. With respect to respondent’s first contention, petitioner argues that the statute does not infringe on respondent’s first amendment rights, as the statute provides a civil mechanism to temporarily remove the firearms from an individual deemed likely to cause harm and does not limit speech. Petitioner also argues that, despite respondent’s claim that his statements were not “fighting words,” his message was believed to be a true threat and the investigators were promptly notified. The subsequent ERPO application is allegedly designed not to limit free speech but to prevent gun violence when, like here, there is a warning that something violent may occur. Petitioner further alleges that an individual’s statement is just one piece of evidence that a court can consider in determining whether an ERPO should be issued. Respondent also argues that the Red Flag Law violates his right to bear arms as due process is not guaranteed under the ERPO statute and a respondent subject to an ERPO hearing is not afforded the same constitutional protections as in other proceedings. Pursuant to the statute, “a police officer or district attorney shall file such application 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, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law, unless such petitioner determines that there is no probable cause for such filing.” CPLR 6341. “Upon application of a petitioner pursuant to this article, 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, rifle or shotgun, upon a 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, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law.” CPLR 6342 (1). According to respondent, the second amendment rights must be given the same level of due process as those under the fourteenth amendment (right to liberty). The Mental Hygiene Law and the Red Flag Law share the same definition for likelihood to result in serious harm. Under the Mental Hygiene Law, physicians use that standard and make the determination whether someone should be involuntarily hospitalized, i.e., a determination resulting in a loss of liberty. Here, however, the majority of the petitioners for a TERPO/ERPO are not physicians and cannot make a medical determination that respondent presents with a mental condition likely to result in serious harm. In opposition, petitioner maintains that the ERPO law does not violate the second amendment as the ERPO law only restricts gun possession by individuals deemed to pose a threat to themselves or others. Petitioner adds that restrictions based on dangerousness have existed for centuries. Further, courts have consistently rejected these second amendment challenges because, among other reasons, the respondents are provided with due process prior to a possible suspension of firearms. Due process is satisfied because respondent is given an evidentiary hearing whereby petitioner has the burden of proof, by clear and convincing evidence and petitioner may be represented by counsel, who may cross examine witnesses, and respondent may testify on his own behalf. Finally, petitioner maintains that it is not proper to compare the ERPO proceeding to a Mental Hygiene Law proceeding, because the ERPO statute does not require a court to assess the mental health of the respondent and the ERPO proceedings do not have the same procedural rules as the involuntary hospital confinement ones. Further, testimony from lay people, including police officers, is sufficient to allow the court to evaluate if someone is dangerous. Petitioner notes that requiring a medical diagnosis or testimony from a medical professional for an ERPO would prevent the law from serving its purpose, which is to prevent harm. Fifth and Sixth Amendments When the TERPO is served on the respondent, respondent is required to provide “a list of all firearms, rifles and shotguns possessed by the respondent and the particular location of each firearm, rifle or shotgun listed.” CPLR 6342 (4) (e). According to respondent, requiring a respondent to sign a receipt for these items, whether or not the items are lawfully possessed, violates a person’s right to self-incrimination because if the firearm is illegally possessed, the respondent will be prosecuted criminally. According to petitioner, the requirement for a respondent to admit to owning weapons and surrendering them to law enforcement does not violate the fifth amendment because this evidence is not being used at a criminal trial. In any event, as respondent did not have any firearms to surrender, respondent does not have standing to challenge this alleged violation of self-incrimination. Further, respondent argues that the Red Flag Law also violates his right to counsel because there is no right to counsel provided for in the language of the statute. Petitioner asserts that, as respondent is represented by counsel in this proceeding, he has no standing to claim that the ERPO law violates his right to counsel. Regardless, petitioner argues that the right to counsel does not extend to most civil actions. DISCUSSION At the outset, it is well settled that “[a] statute enjoys a strong presumption of constitutionality. To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the heavy burden of proving beyond a reasonable doubt that the statute is in conflict with the Constitution.” People v. Viviani, 36 NY3d 564, 576 (2021) (internal quotation marks and citations omitted). Second Amendment A Court may issue a TERPO “upon a 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, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law.” CPLR 6342 (1). Mental Hygiene Law §9.39 applies to admission and retention of persons alleged to be mentally ill and requiring emergency admission for immediate observation, care, and treatment. It states, in relevant part: “The director of any hospital maintaining adequate staff and facilities for the observation, examination, care, and treatment of persons alleged to be mentally ill and approved by the commissioner to receive and retain patients pursuant to this section may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. ‘Likelihood to result in serious harm’ as used in this article shall mean: 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.” As relevant for the Mental Hygiene Law, only a qualified medical expert may determine whether a person is mentally ill, whether inpatient treatment is appropriate for the mental illness and whether the mental illness is likely to result in serious harm. See Addington v. Texas, 441 US 418, 429 (1979) (“Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists”). Respondent argues that the Red Flag Law does not provide the same procedural safeguards for the second amendment rights as those provided for in the Mental Hygiene Law, when a person’s liberty interests are at stake (fourth amendment). However, as many other New York courts have found, this Court does not find the comparison to be applicable. The ERPO statute does not require proof of a mental illness so it does not require expert testimony in support of its application. See e.g. Matter of J.B. v. K.S.G. 79 Misc. 3d 296, 301 (Sup Ct, Cortland County 2023) (“the extreme risk protection statute does not require findings that respondent is mentally ill, or that the likelihood of serious harm result from mental illness, as conditions to entry of either a temporary or final extreme risk protection order; rather, it requires only a determination that the respondent is likely to engage in conduct that would result in serious harm to the respondent or others”). While the Court is unaware of Appellate Division case law specifically addressing these issues, this Court agrees with the Court’s analysis in Matter of J.B. v. K.S.G., supra, holding that “whether a person has engaged in the type of conduct that evinces a likelihood of serious harm is a fact-based determination that may be made without the need for an expert opinion.” Id, citing Addington v. Texas, 441 US at 429; compare Matter of Anonymous v. C.P., 2023 NY Slip Op 23289 (U), *5 (Sup Ct, Warren County 2023) (finding “vagueness” with the “would result in serious harm” provision”). Here, at the temporary ERPO level only, the statements, email and evidence from petitioner satisfied the fact-based inquiry that there was probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself or others. The Court further finds that the Red Flag Law does not otherwise violate respondent’s second amendment rights to “keep and bear arms.” “While the United States Supreme Court concluded…that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home, it also held that the right…is not absolute and may be limited by reasonable governmental restrictions.” People v. Perkins, 62 AD3d 1160, 1161 (3d Dept 2009) (internal quotation marks and citations omitted). Other Courts have analyzed constitutional challenges to the ERPO law based on the second amendment and found that the statute withstood these challenges. For example, in People v. R.L., 2023 NY Slip Op 51112(U), *2 (Sup Ct, Suffolk County 2023), the Court noted that objective qualifying factors to receive a gun license includes an applicant’s “good moral character”, which is defined in the Penal Law as “the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” Thus, a person lacking in this character may be restricted from gun ownership through other government prohibitions and New York State may accomplish this through the CPLR Article 63-A proceeding. That Court held the following, in relevant part: “It is beyond dispute that New York has substantial, indeed compelling, governmental interests in public safety and crime prevention. That being the case, the appropriate level of scrutiny to be applied [in determining the constitutionality of the ERPO statute] is intermediate scrutiny, and a review of…whether the restriction bears a substantial relationship to the achievement of an important governmental objective. Clearly that is the case here.” Id. at *2 (internal quotation marks and citation omitted). This Court also rejects respondent’s second amendment challenge to the ERPO Law. As set forth above, the ERPO law and its restrictions have a “substantial relationship to the government’s responsibility of protecting the public at large and preventing crime and serious injury to others from individuals who, by their conduct, raise serious concerns that, at that moment and for a limited time in the future, they should not be entrusted with a dangerous instrument.” Id. In this case, a hearing on the final ERPO has not yet occurred. However, in the TERPO, based on respondent’s conduct, the Court found probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to himself or others such that his possession of firearms should be temporarily suspended to protect him and the public. First, Fifth and Sixth Amendments, Due Process In determining whether to issue a TERPO or ERPO, “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….” CPLR 6432 (2). Respondent argues that the Red Flag Law infringes upon his freedom of speech because the statute is unconstitutionally vague and because the email/statements made were not true threats. Nonetheless, arguments that the statute is constitutionally vague have been uniformly rejected. For example, in Anonymous Detective at Westchester County Police v. A.A., 71 Misc. 3d 810, 815 (Sup Ct, Westchester County 2021), the Court analyzed the same challenge to the ERPO statute and started with the following: “In addressing a vagueness challenge, a court must enlist a twopart test to determine whether: (1) the statute is sufficiently definite to give a person of ordinary intelligence fair notice of forbidden conduct under the statute and (2) the enactment provides officials with clear standards of enforcement.” Id., citing People v. Stuart, 100 NY2d 412, 420-421(2003). That Court continued that “[t]he plain reading of the statute is not vague but is, in fact, very clear. In order for a TERPO to issue, there must be probable cause to believe that a substantial risk of harm to self or others exists as manifested by violent, harmful, threatening suicidal or homicidal behavior. These considerations clearly provide notice of the ‘forbidden conduct sufficient to inform a person of ordinary intelligence.’” Id. at 816. In addition, the “[t]he ERPO statute sets forth a standard by which law enforcement may commence an ERPO proceeding and conduct a court-ordered search, thereby avoiding any arbitrary and discriminatory enforcement.” Id. at 817. Applying the law above, respondent’s vagueness argument lacks muster. Here, respondent had been working for over thirty years, was extremely upset, and sent emails to the governor, which, investigators found to be threatening. This type of conduct fell within the factors enumerated in the statute and provided respondent with notice of the grounds for issuing the TERPO. Respondent’s argument that his first amendment rights were violated because the email/statements made were not true threats, is also without merit. Again, this is a fact-based inquiry, and the Court considered not just the email, but the circumstances surrounding the email. Respondent next argues that protections of due process, expert testimony and representation by counsel are not guaranteed under a CPLR Article 63-A proceeding. Due process requires for the respondent be provided with the “opportunity to be heard in a meaningful manner at a meaningful time.” Matter of Astoria Landing, Inc. v. Del Valle, 188 AD3d 1189, 1192 (2d Dept 2020) (internal quotation marks omitted). Courts have routinely rejected claims that the ERPO law violates due process. See People v. R.L., 2023 NY Slip Op 51112(U) at *3 (“Pursuant to Article 63-A, the issuance of even a TERPO must be preceded by a fact-finding determination, which may include recorded, sworn testimony. Moreover, the subject of the TERPO is entitled to a full evidentiary hearing within six business days of the initial finding, which can be adjourned at the request of the respondent (as was done here), but not the petitioner”). Here, respondent will have an evidentiary hearing where he will be represented by counsel who may cross examine witnesses and respondent may testify on his own behalf. Accordingly, the Court finds that due process will be satisfied. Further, it is well settled that “a court can act only when the rights of the party requesting relief are affected.” Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 772 (1991). The ERPO herein was adjourned for respondent to retain counsel, which he did. Accordingly, respondent lacks standing to argue that the ERPO statute also violates his sixth amendment right to counsel. Finally, respondent argues that the ERPO statute violates his right to self-incrimination as it requires a respondent to sign a receipt for firearms surrendered or recovered, thereby admitting that he has weapons, which may lead to further criminal charges. Here, however, respondent did not surrender any firearms, so he has no standing to challenge this provision of the statute. In any event, “[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants.” United States v. Verdugo-Urquidez, 494 US 259, 264 (1990). Here, there is no alleged violation of his fifth amendment right at a criminal trial, and respondent’s challenge is without merit. In conclusion, this Court declines to accept respondent’s arguments that CPLR Article 63-A is unconstitutional, and respondent’s motion to dismiss is denied. All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto. CONCLUSION Accordingly, it is hereby ORDERED that respondent’s motion to dismiss the ERPO application on the basis that the ERPO statute is unconstitutional, is DENIED. The parties are directed to appear in-person on November 13, 2023 at 2:00 p.m., for the Court to have a hearing to determine whether a final extreme risk protection order shall be issued. Dated: November 3, 2023
