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April 6, 2023

New York Court Rules Due Process Must be Considered for ‘Red Flag’ Orders

By Larry Keane

Rights Still Matter, Even in New York

A New York court affirmed that Due Process rights must be taken into consideration when enforcing so-called “red flag” laws and vacated New York’s Gov. Kathy Hochul’s executive order for enforcing Extreme Risk Protection Orders (ERPOs) or “red flag” orders. That is consistent with what NSSF has said from the beginning about ERPOs. If an individual is going to be deprived of fundamental constitutional rights, they must be afforded the opportunity to examine and challenge evidence brought against them – they must be afforded due process of law.

In New York’s case, the court requires that any “red flag” order must be accompanied by a determination from a physician or psychiatrist. That’s already part of New York’s laws. The court noted that New York’s Mental Hygiene law that states, “… a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition ‘likely to result in serious harm.’ Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such an opinion must be consistent with the first doctor’s opinion.”

Doctor’s Opinion

This is a critical distinction to how Gov. Hochul wanted New York’s “red flag” law to be administered. Her Executive Order allowed for a police officer, district attorney, family or household member, school administrator or a school administrator’s designee – which includes guidance counselors or school social workers – to petition for “red flag” orders. There was no requirement that a licensed medical professional to opine on the mental state of the individual in question. Her Executive Order required state police to file “red flag” orders on individuals “… when 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…”

That left courts in the position of determining someone’s mental health state, without medical evidence to make that determination.

The Court’s ruling now requires that the supporting documentation must include a doctor’s determination. What’s more, is the Court recognized that Second Amendment rights are foundational individual liberties and the state must clear a high bar when taking action to deprive someone of those rights.

Not a Second-Class Right

“Second Amendment rights are no less fundamental than… Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection,” wrote Judge Craig Steven Brown.

That’s not just the U.S. Constitution that protects that right but also existing New York’s Mental Hygiene Law. The court went further. It concluded that anyone subjected to a “red flag” order for more than 48 hours must have a second and concurring determination from another doctor.

NSSF has never opposed so-called “red flag” laws, so long as they provide procedural and substantive due process. Of the 19 states and the District of Columbia that have these laws on the books, none include sufficient or adequate due process protections. A New York Supreme Court has now held that they must be included.

High Hurdle

The firearm industry wants to keep firearms out of the hands of those who cannot be trusted to responsibly possess them. That includes prohibited individuals, those suffering through a mental health crisis or suffering suicidal ideations and unsupervised children. “Red flag” laws have utility in protecting the public but must be carefully administered so these orders aren’t abused to disarm lawful gun owners.

The bar must be higher than mere accusations that someone is likely to harm themselves or others. ERPOs that would deprive a citizen of their constitutional rights must provide meaningful due process protections including allowing an individual to examine and rebut any evidence presented to a court for consideration. For that reason, NSSF has significant concerns with ex parte orders, which are issued without notice to the individual who is the subject of the order. And, on the truly rare occasion when there are exigent circumstances to justify an ex parte order, due process requires a very prompt post-deprivation hearing.

The New York judge got it right with this decision. We should be providing all the tools necessary for law enforcement to protect the public against criminals and mentally-deranged individuals that have no respect for life or law. Those protections, though, should never come at the cost to our foundational freedoms – including Due Process and Second Amendment rights.


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Tags: “Red Flag” Laws Due Process Extreme Risk Protection Orders New York Supreme Court Second Amendment

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