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]

• Law enforcement agencies that employ a police officer as defined in CPL 1.20, and police officers with jurisdiction in the county or city where the respondent resides
• 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, of any school in which the respondent is currently enrolled or has been enrolled within the past six months. A designee must work at the same school, be designated in writing, and be one of the school personnel listed in CPLR 6340.
• Licensed healthcare professionals who have 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 no sooner than three nor later than six business days after service of the temporary order, unless the respondent requests a reasonable period of additional time to prepare.^[2]

Upon issuance of a temporary ERPO, the respondent must promptly surrender every firearm, rifle, and shotgun in the respondent's possession to an authorized law enforcement official. An officer serving the order must request immediate surrender and take possession of weapons that are surrendered, in plain sight, or found through a lawful search.^[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 lasts for up to one year from issuance. If a temporary ERPO immediately preceded it, the period is measured from issuance of the temporary order.^[2]

If the court does not issue a temporary ERPO, a hearing on a final ERPO must be held no later than ten business days after service of the application, unless the respondent requests and the court grants additional time to prepare.^[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. Law enforcement must retain firearms, rifles, and shotguns taken under an ERPO for at least two years unless the respondent legally transfers them to a person permitted to own and possess them, subject to the return procedure when the order expires. Upon expiration of the order, the respondent may apply in writing for return of weapons not otherwise disposed of. The court must give the petitioner and licensing officers notice and an opportunity to be heard and find no legal impediment to possession before ordering return.^[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

The ERPO itself is a civil order that prohibits the respondent from purchasing or possessing a firearm, rifle, or shotgun. Under Penal Law 265.01(9), a person prohibited from possessing a shotgun or rifle by a temporary or final ERPO who possesses a major component of a firearm, rifle, or shotgun commits criminal possession of a weapon in the fourth degree.^[7]