Extreme Risk Protection Orders (Red Flag Law)

New York's Extreme Risk Protection Order (ERPO) law, commonly known as the "red flag law," took effect on August 24, 2019. Codified in the Civil Practice Law and Rules (CPLR) Article 63-A, Sections 6340 through 6347, the law creates a civil court mechanism for temporarily prohibiting a person from purchasing, possessing, or attempting to purchase or possess firearms, rifles, and shotguns when that person is likely to engage in conduct that would result in serious harm to themselves or others.^[1]

Who Can File a Petition (CPLR 6341)

CPLR Section 6341 specifies who may file an application for an ERPO. Eligible petitioners include:^[2]

• Police officers and law enforcement agencies
• District attorneys with jurisdiction in the county or city where the respondent resides
• Family or household members of the respondent
• School administrators, including principals and chief school officers (or their designees) of any school in which the respondent is currently enrolled or has been enrolled within the past six months
• Licensed healthcare professionals who have examined or treated the respondent within the previous six months, including physicians, psychiatrists, psychologists, registered nurses, licensed clinical social workers, certified clinical nurse specialists, certified nurse practitioners, licensed clinical marriage and family therapists, and licensed mental health counselors

The expansion of eligible petitioners to include healthcare professionals was enacted on June 6, 2022, as part of the legislative package Governor Hochul signed in response to the May 14, 2022 Buffalo supermarket mass shooting. This legislation predates the Supreme Court's Bruen decision of June 23, 2022.^[3]

Temporary ERPOs (CPLR 6342)

A temporary ERPO may be issued on an expedited basis when the court finds probable cause to believe that the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others, as defined by reference to subdivision (a) of Section 9.39 of the Mental Hygiene Law.^[1] A temporary ERPO takes effect immediately upon service on the respondent and remains in effect until a hearing on a final ERPO is held. The hearing must take place within three to six business days after the temporary order is issued.^[2]

Upon issuance of a temporary ERPO, the respondent must surrender all firearms, rifles, and shotguns in his or her possession to law enforcement or a designated party.^[4]

Final ERPOs (CPLR 6343)

A final ERPO may be issued after a hearing at which the petitioner must demonstrate by clear and convincing evidence that the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others.^[1] This is a higher evidentiary standard than the probable cause required for a temporary order. The respondent has the right to appear at the hearing, be represented by counsel, present evidence, and cross-examine witnesses. A final ERPO is effective for up to one year from the date of issuance.^[2]

If the court does not issue a temporary ERPO, a hearing on a final ERPO must still be held no later than ten business days after the application is served on the respondent.^[4]

Renewal and Expiration (CPLR 6345-6346)

A petitioner may request renewal of a final ERPO at any time within sixty days before its expiration if the petitioner believes the respondent continues to pose a risk of serious harm. Renewal requires the same clear and convincing evidence standard as the original final order.^[5]

Upon expiration of an ERPO (and absent renewal), records related to the proceeding are sealed. Firearms, rifles, and shotguns surrendered or removed pursuant to an ERPO must be retained by law enforcement for at least two years following the order's expiration, unless otherwise transferred or sold in accordance with law. After the retention period, the respondent may apply to have the weapons returned.^[5]

2024 Statewide Registry

In 2024, Governor Hochul signed legislation requiring all extreme risk protection orders to be filed on a statewide registry. This registry is designed to improve coordination between courts and law enforcement agencies across New York's 62 counties, ensuring that ERPOs are consistently enforced even when a respondent moves between jurisdictions.^[6]

Penalties for Violations

A person who is subject to an ERPO and who purchases, possesses, or attempts to purchase or possess a firearm, rifle, or shotgun in violation of the order may face criminal charges. The ERPO itself is a civil order, but violating it can result in criminal prosecution for contempt of court or criminal possession of a weapon, depending on the circumstances.^[7]