Concerned about a loved one? How to file a protection order under New York's Red Flag law




  • In US
  • 2022-08-17 08:32:09Z
  • By Democrat and Chronicle

The aftermath of a string of mass shootings this spring in Buffalo, Uvalde and Highland Park triggered familiar questions: Weren't there warning signs? What could have been done sooner to stop the shooter?

In each case, politicians and gun control advocates criticized weak implementation of laws that allow firearms to be confiscated from individuals deemed a threat to themselves or others. Research on the utilization and effectiveness of red flag laws is limited, in part because they are relatively new, experts say.

At face value, red flag laws are straightforward: Law enforcement, school officials and, in some states ― including New York ― family members can petition a court for an Extreme Risk Protection Order, which asks that an individual be barred from purchasing firearms and have any guns already in their possession confiscated for up to a year. The application becomes a civil case, and carries no criminal charges or penalties. Petitioners must include evidence that shows why an order is justified, and the individual in question has a chance to defend their right to carry at a hearing.

Advocates say the orders are intended to prevent suicides, fatal domestic disputes and mass shootings.

Jaclyn Schildkraut, who heads the Regional Gun Violence Research Consortium at the Rockefeller Institute of Government, said family members and close friends are the first to notice changes in behavior or mood that might signal someone is in danger.

"Time is always a critical factor," Schildkraut said. "Usually when you file an ERPO, because it's a temporary order, there's usually some sort of imminent concern: You think somebody's going to imminently harm themselves or imminently harm others.

"In any situation that is escalating, the No. 1 goal has to be de-escalation. A firearm, or really any weapon, is an escalating factor that makes it much easier (to do harm). Removing the means in that moment can at least help to give the time needed to de-escalate so that we can potentially save lives."

Warren Eller, a professor at John Jay College of Criminal Justice, said family members may be reluctant to file an application for an Extreme Risk Protection Order in fear of retaliation or a reluctance to believe a loved one is capable of causing harm.

But he said family members have an additional option.

"I think the No. 1 best thing that anybody can do is to be encouraged to go get professional help, and that professional help in this instance typically begins with law enforcement," Eller said. "It's tempting to try and help people find alternative paths, but those alternative paths tend to be subpar. The first line of discretion, I think, is to simply stop by a local police department and talk with someone."

\"Enough\" fatal shootings and more sensible gun laws is the message of a crowd that gathered at the Ontario County Courthouse June 11, 2022.
\"Enough\" fatal shootings and more sensible gun laws is the message of a crowd that gathered at the Ontario County Courthouse June 11, 2022.  

How to apply for an Extreme Risk Protection Order

The New York State Unified Court System lays out each step for concerned family members:

  1. File an application: The Extreme Risk Protection Order application asks for information about the individual, including a description of any incidents or threats of harm that would justify a protection order. Applications should be filled out online or by hand, printed and delivered to the court clerk at the county Supreme Court where the individual lives. Petitioners must also include a completed "request for judicial intervention" form, which can be found online.

  2. Gather evidence: Petitioners should submit evidence to support their case, such as copies of text messages, voicemail recordings or other documentation of threatened violence. These documents should be filed with the application.

  3. Apply for a fee waiver: State law requires a $210 application fee, but petitioners can request the courts waive the fee by filling out a waiver form.

  4. Expect same day, temporary action: A judge will review the application the same day it is filed with the court. If they issue a temporary Extreme Risk Protection Order, a police officer will serve the individual with the order and immediately remove any firearms in their possession.

  5. Return for a final hearing: After a temporary order is issued, a hearing for a final Extreme Risk Protection Order will be scheduled within three to 10 days. Both the petitioner and individual in question will present their case before a judge, who will decide whether to issue a final order lasting up to one year.

The law also lays out rights for petitioners and respondents alike.

Petitioners may request anonymity on their application if they believe the respondent knowing their name, address or contact information may endanger their safety.

Respondents have an opportunity to appeal the judge's decision by filing an application to amend or vacate the order but must successfully argue a change in circumstances at another hearing. After a protection order expires, the individual can apply to have their firearms returned and the case is sealed.

A petitioner can apply to renew an Extreme Risk Protection Order 60 days before it expires.

Following the Buffalo shooting, New York Gov. Kathy Hochul expanded the red flag law to include health care practitioners and, required police and district attorneys to file petitions when they have credible information that the individual is a threat.

Nineteen states and Washington D.C. offer such protections. New York first implemented its red flag law in 2019.

More information at ny.gov/RedFlag

More:Red flag law use in NY spikes in wake of Buffalo shooting

Unfamiliarity with protections laws offer

Studies from the University of California Davis suggest many people are unfamiliar with the protections the laws offer.

A 2021 study found that 66% of about 3,000 Californians surveyed in 2020 never heard of red flag laws or gun violence restraining orders (California's official term for what is more commonly known as Extreme Risk Protection Orders).

But after reading a description of the law, 83% of those surveyed said they would be somewhat or very likely to request a protection order for a family member if they had made threats to hurt themselves or others.

Reporting by Chad Arnold contributed to this story.

This article originally appeared on Rochester Democrat and Chronicle: New York's Red Flag gun law: How families can file a protection order

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