Judge Strikes Down New York “Red-Flag” Law

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posted on January 12, 2023
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Glenn Wedin courtesy Flickr

As the National Rifle Association continues to battle New York’s attempts to circumvent the U.S. Supreme Court’s Bruen ruling in the courtroom, another court in the Empire State recently handed pro-freedom advocates some good news.

In late December, a New York Supreme Court judge ruled that the state’s so-called “red-flag” law, which lets the government confiscate guns from lawful citizens without due process, is unconstitutional.

Like similar laws in other states, New York’s Extreme Risk Protection Order (ERPO) law, commonly known as a “red-flag” law, appears to have good intentions mixed with bad—indeed unconstitutional—implementation. The law allows law enforcement to seize a person’s guns based on allegations from a third party that the person poses a danger to himself or others.

One problem with most such laws is they don’t provide a gun owner with any notice or an opportunity to appear and defend himself or herself. Motions are usually filed ex parte, without notifying the accused, and a hearing is held without the person accused of being a “danger” present. At the hearing, a judge can order the person’s firearms confiscated, and the first he or she might know of the ruling is when law enforcement shows up at the front door.

In yet another  slap to the U.S. Constitution, gun owners who become victims of “red-flag” actions must later appear in court and argue why they should have their firearms returned to them—a procedure that can be quite costly. For one thing, since it’s not a criminal case, the victim of the unjust confiscation will not be provided with a court-appointed attorney. Consequently, he or she must come up with several thousand dollars to hire an attorney to fight the system, with the final legal bill likely much higher than the actual value of the firearms involved.

Daniel Strollo, the attorney who successfully argued the case, told local news outlets after the ruling that the law made it too easy for the government to deprive someone 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.”

Fortunately for New York’s lawful gun owners, the court agreed with that assessment.

“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,” the court’s decision stated.

“However, when viewed objectively, CPLR §63-a’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.

“While some may advocate that ‘the ends justify the means’ in support of §63-a, 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 decision concluded with a Clarence Thomas-like statement underscoring the importance of the Second Amendment compared to other freedoms in the Bill of Rights: “Therefore, the ‘Temporary Extreme Risk Protection Order’ (TERPO) and ‘Extreme Risk Protection Order’ (ERPO) are deemed to be unconstitutional by this Court as CPLR Article 63-a is presently drafted,” the judge wrote. “It cannot be stated clearly enough that the Second Amendment is not a second class right, nor should it ever be treated as such.”

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