The Red Flag Gun Protection Law

New York’s Red Flag Law (NY CPLR Article 63-a), which became effective on August 24, 2019, allows the state to prevent individuals who show signs they may be a threat to themselves or others from purchasing, possessing, or attempting to purchase or possess a firearm, rifle, or shotgun. The law aims to prevent tragedies like the recent school shootings in Uvalde, Texas and the mass shootings in Buffalo and Chicago by taking a proactive approach to potential threats. To do this, courts in New York State may issue Extreme Risk Protection Orders (ERPOs) upon petitions from select institutions or individuals. Permitted petitioners include:

1. Police officers, and district attorneys with jurisdiction in the county or city where the person against whom the order is sought resides;

2. Family or household members of the person against whom the order is sought;

3. School administrators, or school administrators’ designees, of any school in which the person against whom the order is sought is currently enrolled or has been enrolled in the six months prior to the filing of the petition; or

4. A licensed physician, licensed psychiatrist, licensed psychologist, registered nurse, licensed clinical social worker, certified clinical nurse specialist, certified nurse practitioner, licensed clinical marriage and family therapist, registered professional nurse, licensed master social worker or licensed mental health counselor who has treated the person against whom the order is sought in the six months immediately preceding the filing of the petition.

School administrators must be the principal or other chief school officer—vice principals or assistant principals cannot petition for an ERPO unless designated in writing. “School administrators’ designees” must be individuals employed at the same school as the school administrator and must be any of the following who have been designated in writing to file a petition with respect to the person against whom the order is sought: a school teacher, school guidance counselor, school psychologist, school social worker, school nurse, or other school personnel required to hold a teaching or administrative license or certificate, and full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate.

An amendment to the Red Flag Law went into effect on July 6, 2022. The amendment added the new class of petitioners (health care providers as identified in #4 above), incorporated an executive order requiring district attorneys and police officers to file a petition for an EPRO 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, and provided legal protections and additional requirements for health care providers applying for an EPRO.

Trial Court Decisions

In December 2022, Judge Moran, a Monroe County Supreme Court Judge, ruled the red flag law unconstitutional ( 2022 NY Slip Op 22392 December 22, 2022). The rationale for this decision was that the red flag law did not provide the same procedural guarantees as the Mental Hygiene Law affords to an individual who is subject to a mental health arrest. This Decision has been appealed.

Judge Brown, a Supreme Court Judge in Orange County similarly declared the Red Flag Law unconstitutional on April 4, 2023 ( RM v. CM 2023 NY Slip Op 23088 ). Judge Brown ruled that without the requirement of any input from a medical or mental health expert, the court is required to make a determination of whether the respondent “ is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in… section 9.39 of the mental hygiene law.” Under the Mental Hygiene Law 9.39, a person's liberty rights cannot be curtailed unless a physician opines that the person is suffering from a condition “ likely to result in serious harm." This decision is also on appeal to the appellate division.

The impact of these two decisions is limited to Monroe County and Orange County, New York. The law is valid in New York until the Appellate Division or New York State Court of Appeals rules otherwise.

The Extreme Risk Protection Order Process

Individuals permitted to file a petition for an EPRO must file an application and supporting documents in the Supreme Court in the county in which the individual against whom the order is being sought resides. The New York Unified Court System provides detailed instructions and forms for use in the preparation and filing of an EPRO on their website. Upon receiving a petition for an Extreme Risk Protection Order, the court may issue a temporary order, to be served by law enforcement, on the same day as the petition is filed, prohibiting the student against whom the order is sought from purchasing, possessing, or attempting to purchase or possess a firearm. In considering the necessity of a temporary ERPO, the court will consider factors including:

1. A threat or act of violence or use of physical force directed toward self or others;

2. A violation or alleged violation of an order of protection;

3. Any pending charge or conviction for an offense involving the use of a weapon;

4. The reckless use, display or brandishing of a firearm, rifle or shotgun;

5. Any history of a violation of an extreme risk protection order;

6. Evidence of recent or ongoing abuse of controlled substances or alcohol; or

7. Evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition.

The ERPO process is necessarily swift. If the court determines a temporary ERPO is necessary, a formal hearing on the final order will occur three to six business days after the temporary order is served. If the court declines to issue a temporary ERPO, a hearing to determine whether a final ERPO will be issued will occur no later than ten business days after the student is notified of the petition. Law enforcement will provide service of the temporary EPRO, along with any notice of hearing, associated papers which may include the original petition and any supporting documentation. The court may choose to redact the address and contact information of the petitioner from all documents provided to the individual against whom the EPRO is sought upon the court’s finding that disclosure of such information would pose an unreasonable risk to the health and safety of the petitioner.

[1]See https://ww2.nycourts.gov/erpo.

At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that the student against whom the order is sought is likely to engage in conduct that would result in serious harm to himself, herself or others. If a final order is issued, any firearm, rifle or shotgun possessed by the student will be removed and kept by law enforcement for the duration of the order. If the student does not, himself or herself, possess weapons but lives with individuals who do legally possess firearms, those individuals will be informed of their obligation to safely store their firearms in accordance with the Penal Law and given notice of potential liability for any failure to monitor the possession of their firearms.

Upon issuance of a final order, the court will notify law enforcement, relevant criminal justice services, and the Federal Bureau of Investigation. Final ERPOs extend for a period up to one year.

School District Rights and Responsibilities

The Red Flag Law permits school administrators or their designees to petition courts in New York State for EPROs for currently enrolled students or students who were enrolled in their school in the six months prior to the petition. Currently, school districts do not have an affirmative duty to file petitions against students who may pose a threat. However, the Red Flag Law obligates police officers to file a petition if they receive credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself or others. Districts should work closely with their School Resource Officers and local law enforcement to determine best practices regarding EPRO petitions, including procedures for notice to school districts when an EPRO is issued against a current student.

If district staff know or have reason to believe that a student may present a danger to himself/herself or others, they should document their knowledge and promptly report their concerns to their school administrator. It is vital that all information relating to a potential student of concern be documented, as this information may be needed for the court to determine whether to grant an EPRO. Students, parents, and community members may also bring concerns to school administrators, who should report these concerns consistent with district procedures. To support effective communication regarding student safety, each principal should ensure staff are aware of reporting procedures for students who may pose a serious threat to themselves or others and provide notice of any individuals who serve as “school administrators” or “designees” as defined above.

School districts should establish procedures for EPRO petitions. Reports to local law enforcement should be a critical element. The proceedings may include trainings on the EPRO process and modifications to school safety procedures to include clear reporting structures for student safety threats. Districts may consider requiring school administrators and designees to provide notice to the Superintendent of Schools. Districts may further choose to contact the school district’s attorney regarding preparing an EPRO petition in the event that law enforcement does not move forward with a petition. In each instance time is of the essence. In keeping with local safety standards, administrators should notify local law enforcement of students who may present a danger to themselves or others.

The Red Flag Law and FERPA Compliance

The Family Educational Rights and Privacy Act (FERPA) generally prohibits schools from releasing information from a student’s educational record without written consent from the parent or eligible student. However, FERPA contains an exception that permits school districts to release student information without consent in the event of a “health or safety emergency.” For this exception to apply, school districts must make a determination, on a case-by-case basis and taking into account the totality of the circumstances, that there is an articulable and significant threat to the health or safety of the student or another individual and that certain parties need the personally identifiable information from student education records to protect the health or safety of the student or another individual. If a school district determines that this is the case, then it may disclose that information to such parties without consent.

In the event of disclosure under the health and safety emergency exception, school districts must maintain a record of each request for access to and each disclosure of personally identifiable information from the education record of the student. Additionally, when making a disclosure under the health or safety emergency provision, school districts are specifically required to record the articulable and significant threat to the health or safety that formed the basis for the disclosure and the parties to whom the information was disclosed.

Although we believe the FERPA health and safety emergency exception applies to personally identifiable information provided in pursuance of an ERPO, we will continue to monitor guidance from the New York State Education Department and the United States Department of Education Family Policy Compliance Office.

If you have questions or a pending incident, please call the office to review.