Papers considered: 1. Notice of Motion dated February 27, 2024; Affirmation of Sean P. Moran, Esq., in Support, dated February 27, 2024; Memorandum of Law in Support. 2. Affirmation of Meg Bailey, Esq., in Opposition dated March 14, 2024, with Exhibits 1-5, and Memorandum of Law in Opposition. 3. Respondent’s Reply Brief of Sean P. Moran, Esq., dated March 18, 2024. DECISION/ORDER Petitioner, New York State Police Investigator C. T. M., seeks the issuance of an extreme risk protection order as against Respondent, J.W. J.W. moves for a declaration that CPLR Article 63-A (§§6340-6347) is unconstitutional under several provisions of the Federal and State Constitutions. Morrison opposes. BACKGROUND This proceeding was commenced by Inv. C.T. M. alleging J.W., in a dispute over a parking spot, displayed a knife, threatening J. E., the driver of the other vehicle. J.W. got back into his vehicle and drove away when J.E. pulled into his nearby driveway. While J.E. was on the phone calling the police, someone shot a bullet through a front window of his home. The police retrieved a fragment of the bullet from J.E.’s dining room wall. As a result of this incident, C.T.M. sought an extreme risk protection order. The purpose of CPLR Article 63-A is “to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others” (2019 NY Legis Ann at 20); Matter of R.M. v. C.M., 2024 N.Y. App. Div. LEXIS 1556, 2024 NY Slip Op 05418 (2d Dept., March 20, 2024). CPLR §6340(1) defines an extreme risk protection order as “a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.” CPLR §6342(1) provides, in pertinent part, that upon an application for an extreme risk protection order: “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. Such application for a temporary order shall be determined in writing on the same day the application is filed.” CPLR §6342(2) provides that, in determining whether there are grounds for a temporary extreme risk protection order, the court: “shall consider any relevant factors, including but not limited to, the following acts of 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 recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor. In considering the factors under this subdivision, the court shall consider the time that has elapsed since the occurrence of such act or acts and the age of the person at the time of the occurrence of such act or acts” (id. §6342[2]). (Emphasis added). J.W. asserts that CPLR Article 63-A is unconstitutional, as overbroad in violation of the First Amendment of the U.S. Constitution and Article I, Section 6 of the New York State Constitution; as being void for vagueness in violation of the Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 6 of the New York State Constitution; as violative of the probable cause and search and seizure provisions of the Fourth Amendment of the U.S. Constitution and Article I, Section 12 of the New York State Constitution; in violation of the right to bear arms as guaranteed by the Second Amendment of the U.S. Constitution and Article II, Section 4 of the New York Civil Rights Law; in violation of the privilege against self-incrimination as guaranteed by the Fifth Amendment of the U.S. Constitution and Article I, Section 6 of the New York State Constitution; in violation of the right to counsel as guaranteed by the Sixth Amendment of the U.S. Constitution and Article I, Section 6 of the New York State Constitution. DISCUSSION/MATTER OF R.M. v. C.M. The Appellate Division, Second Judicial Department, recently decided Matter of R.M. v. C.M., 2024 N.Y. App. Div. LEXIS 1556, 2024 NY Slip Op 01545 (2d Dept., 2024), which addressed several of the arguments made herein. The Appellate Division noted that the Second Amendment codifies a pre-existing right of the People to keep and bear arms, which is not unlimited and longstanding prohibitions on the possession of firearms by felons and the mentally ill are presumptively lawful. Id., citing District of Columbia v. Heller, 554 US 570 (2008). Relying upon the recent US Second Circuit Court of Appeals’ case of Antonyuk v. Chiumento, 89 F.4th 271, 307 (2d Cir., 2023), the Appellate Division held that a “reasoned denial of a carry license to a person who, if armed, would pose a danger to themselves, others, or to the public is consistent with the well-recognized historical tradition of preventing dangerous individuals from possessing weapons”, Matter of R.M. v. C.M., supra, recognizing “there is widespread agreement among both courts of appeals and scholars that restrictions forbidding dangerous individuals from carrying guns comport with ‘this Nation’s historical tradition of firearm regulation’”. Antonyuk v. Chiumento, 89 F.4th at 314, quoting New York Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 17 (2022). Thus, as a firearms regulation, CPLR Article 63-A does not violate the Second Amendment, nor NY Civil Rights Law Article II, Section 4. The Second Department ruled that CPLR Article 63-A is not unconstitutionally void for vagueness in violation of the Due Process Clause of the Fifth and Fourteenth Amendments, or Article I, Section 6 of the NYS Constitution. The Court rejected the argument that Article 63-A is void for vagueness due to the differences between it and Mental Hygiene Law §9.39; and the additional argument that Article 63-A is void for vagueness because the term “serious harm” is not defined. The Appellate Division further held that Article 63-A provides adequate procedural protections prior to depriving a respondent of his or her Second Amendment right to keep and bear arms. It found that Article 63-A, by requiring a showing of probable cause to believe that a respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, supported by clear and convincing evidence, contains ample procedural safeguards while bearing a substantial relationship to the government’s interest in protecting the public at large and preventing crime and serious injury. Matter of R.M. v. C.M., supra. Thus, CPLR Article 63-A satisfies the Due Process Clauses of the Fifth and Fourteenth Amendments as well as Article I, Section 6 of the New York State Constitution relative to regulating Second Amendment rights. Additionally, the Second Department found that CPLR Article 63-A does not violate the Search and Seizure Clauses of the Fourth Amendment and Article I, Section 12, by authorizing a search, pursuant to a search warrant, where the Court finds that a respondent has not surrendered all of his or her firearms as required. The Court reasoned that firearms possessed in violation of an Extreme Risk Protection Order are illegal weapons, justifying a legal search based upon probable cause. A search could also be justified under the special needs exception to the warrant requirement. The Court found that where weapons are so seized, a respondent could move to suppress the weapons seized from being used against the said respondent in a criminal proceeding. Id. The Second Department noted that Article 63-A’s requirement that, upon service of a temporary or final extreme risk protection order, the law enforcement officer shall request that the respondent immediately surrender all firearms, (CPLR §§6342[8], 6343[3][d]), “could be considered a violation of one’s right against self-incrimination if the surrender could lead to criminal prosecution”. Id. Surrender of an illegal gun is incriminating, and is, therefore, privileged under the Fifth Amendment, and suppression of the gun may be warranted in a prosecution for weapons possession. Id. However, as Article 63-A proceedings are civil in nature, the right against self-incrimination does not apply. A Court may order the weapons seized, and the respondent’s right against self-incrimination can be protected in any criminal proceedings which may arise. Thus, although CPLR Article 63-A compels evidence of a testimonial nature in violation of a respondent’s Fifth Amendment right against self-incrimination, it is not unconstitutional because it is civil, and self-incrimination rights will be vindicated in any criminal process which may ensue. Furthermore, the Appellate Division held that there is no Sixth Amendment or State Constitutional right to counsel in Article 63-A proceedings because they are civil, and there is no constitutional right to counsel in civil proceedings. Matter of R.M. v. C.M., supra; see also, Matter of J.B. v. K.S.G., 79 Misc.3d 296, 303 (Sup. Ct., Cortland Co., 2023); but see, J.P. v. W.M., 79 Misc.3d 643, 645-648 (Sup. Ct., Franklin Co., 2023)(wherein the Court found that assignment of counsel was required due to the respondent’s exposure to criminal charges); McMorris v. Michael W., 2024 N.Y. Misc. LEXIS 1392 (Sup. Ct., Dutchess Co., 2024) (wherein the Court found a constitutional Due Process right to counsel when there are simultaneous criminal charges pending). As Matter of R.M. v. C.M., supra, is an Appellate Division case, this Court is bound to follow its holding in the absence of Third Department precedent on those issues. Accordingly, this Court denies the Respondent’s motion to hold that CPLR Article 63-A is unconstitutional as a firearm regulation in violation of the Second Amendment or of Civil Rights Law Article II, Section 4; is unconstitutionally void for vagueness in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments or of Article I, Section 6 of the State Constitution; that it violates the Due Process Clause of both the Federal and State Constitutions by failing to afford respondents adequate Due Process protections before depriving them of their Second Amendment rights; that it is unconstitutional in violation of the Search and Seizure Clause of the Fourth Amendment and of the State Constitution; that it is unconstitutional in violation of the Fifth Amendment right against self-incrimination or that of the State Constitution; or that it is unconstitutional in violation of the right to counsel provided by the Sixth Amendment and Article I, Section 6 of the State Constitution. Thus, Respondent’s sole remaining issue not raised in Matter of R.M. v. C.M., supra, is whether the statute is overbroad in violation of the First Amendment of the U.S. Constitution and Article I, Section 6 of the State Constitution. DISCUSSION/FIRST AMENDMENT OVERBREADTH When challenging a statute under First Amendment overbreadth jurisprudence, the U.S. Supreme Court has altered its traditional rules of standing to allow “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity”. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression”. Id. This is allowed “to provide breathing room for free expression” because overbroad laws may have the effect of deterring or chilling constitutionally protected speech. United Sates v. Hansen, 143 S. Ct. 1932, 599 US 762 (2023). The crucial question is whether the challenged law sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Grayned v. City of Rockford, 408 U.S. 104, 114-115 (1972). Because it destroys some good along with the bad, “[i]nvalidation for overbreadth is ‘ “strong medicine” ‘ that is not to be ‘casually employed.’ “. US v. Williams, 553 U.S. 285, 293, (2008). To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep. New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 14 (1988); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800-801 (1984); United States v. Hansen, 143 S. Ct. 1932, 1939-1940 (2023). If a challenger demonstrates that the statute “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep”, then society’s interest in free expression outweighs its interest in the statute’s lawful applications, and a court will hold the law facially invalid. United Sates v. Hansen, supra. On the other hand, facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. Broadrick v. Oklahoma, 413 U.S. at 613. Here, J.W. asserts that CPLR Article 63-A infringes on protected speech because of the non-exhaustive list of what may serve as evidence for granting a temporary extreme risk protection order. In this regard, CPLR §6342(2) states, “[i]n determining whether grounds for a temporary extreme risk protection order exist, the court shall consider any relevant factors including but not limited to…”, (emphasis added), a list of seven enumerated items. J.W. asserts the phrase “including but not limited to…” allows for introduction and consideration of any unspecified evidence which a petitioner may offer for the Court’s consideration in determining whether the respondent is likely to engage in conduct harmful to himself, herself, or others. J.W.’s concern is that First Amendment-protected speech may be introduced against a respondent in this context, resulting in a situation where First Amendment speech is used to restrict Second Amendment rights. Thus, J.W. contends the statute has an impermissible chilling effect upon protected speech. See generally, Dombrowski v. Pfister, 380 US 479, 486-487 (1965). The language objected to, “including but not limited to…”, conceivably permits a petitioner’s application for a TERPO to include, e.g., the following speech and/or expressive conduct: that a respondent “espouses neo-Nazi beliefs”; that a respondent “is a Muslim”; “is Jewish”; “is an Anarchist”; “has attended Black Lives Matter protests”; “was present during the January 6th protest at The Capitol”; “has made comments supporting White Nationalism”; “has posted on social media that he supports gun rights”; “has made comments about not liking his school or his teachers”; “has posted on social media that he hates some of his classmates”; “is a misogynist”; “has espoused pro-Palestinian views”; “has spoken favorably about the Irish Republican Army”; “is a member of the National Rifle Association”; “is a member of the Communist Party”; “flies a Chinese flag at his home”; “is a right-winger”; “is a member of a cult”; “drives a vehicle with a Confederate Flag bumper sticker”; “has expressed contempt for law enforcement”; “believes in the Q-Anon conspiracy”; “is an anti-abortion activist”; “has posted on social media that he is a sovereign citizen”; “has expressed a belief in euthanasia”; or “strongly distrusts the government”. Each of the suggested examples of protected speech/expressive conduct implicates a respondent’s First Amendment rights yet, under CPLR 6342(2), may be offered as relevant evidence to convey to the Court a sense of dangerousness about the respondent to have her or his weapons seized. Nonetheless, the “including but not limited to” language of CPLR §6342(2) does not exist in a vacuum. CPLR §6342(2) requires that such evidence be “relevant” and recent. Therefore, depending upon the nature of the alleged threat, some protected speech may be circumstantially relevant to the issue of probable cause to believe a respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others. “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact”. People v. Harris, 26 N.Y.3d 1, 5, 40 N.E.3d 560, 562, 18 N.Y.S.3d 583, 585 (2015), quoting People v. Scarola, 71 NY2d 769, 777, 525 NE2d 728, 530 NYS2d 83 (1988). For example, where the TERPO application alleges a student to have threatened to harm fellow students, or overheard discussing bringing a gun to school, the student’s prior statement posted on social media that he “hates some of his classmates” is admissible as extremely relevant to determining the credibility or seriousness of the threat. Conversely, where the threat alleged is unrelated to the student’s school or classmates, the internet post would not be relevant and therefore is inadmissible. As another example, if the TERPO application alleges a violent threat is made to a synagogue, a respondent’s recent prior statements espousing neo-Nazi beliefs, though protected by the First Amendment, are admissible under CPLR §6342(2) as a “relevant factor” to assess the credibility and seriousness of the threat. There are many types of statements and/or expressive conduct which conceivably could be relevant to the determination by the Court and introduced into evidence against a respondent in a TERPO proceeding. It has long been established that, “[S]peech is often provocative and challenging…[but it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 US 1(1949); Houston v. Hill, 482 US 451, 461(1987). Accordingly, a State may not “punish” a person by restricting Second Amendment rights because of that person’s exercise of First Amendment free speech, unless a clear and present danger of serious physical harm exists. Prevention of imminent serious harm is the very purpose of CPLR Article 63-A. As noted above, Article 63-A is valid as a regulation of Second Amendment rights. Being civil in nature, respondents in Article 63-A proceedings do not face criminal sanctions and any limitations imposed upon Second Amendment rights are temporary in nature. Thus, use of relevant protected speech in the context of Article 63-A does not run afoul of either the First or Second Amendments. Furthermore, because evidence offered pursuant to the “including but not limited to” language of CPLR §6342(2) is conditioned upon such evidence being relevant to the specific threat alleged, the fear that a significant amount of protected speech will be chilled is diminished significantly. A statute is “substantially overbroad” if a court finds “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court”. New York State Club Ass’n v. City of New York, 487 US 1, 11(1988), quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 US 789, 801(1984). Here, the Court finds that the “including but not limited to” language of CPLR §6342(2) is not substantially overbroad because the relevancy requirement diminishes any perceived danger that it will significantly compromise recognized First Amendment protections of parties not before the Court. Accordingly, it is hereby ORDERED, that in all respects, J.W.’s motion is denied; and it is further ORDERED, that the Petition is granted, and the Court is issuing an Extreme Risk Protection Order of even date herewith. This shall constitute the Decision/Order of the Court. The Court is mailing the original of this Decision/Order to counsel for Petitioner, who is directed to file same in the Office of the Columbia County Clerk, in accordance with the provisions of CPLR §2220, but that does not relieve the parties relative to service upon opposing counsel with notice of entry thereon. A copy of this Decision/Order is also being mailed to counsel for Respondent. Dated: May 10, 2024
