Anonymous Detective at Westchester Cnty. Police v. A.A.

71 Misc.3d 810

144 N.Y.S.3d 809

ANONYMOUS DETECTIVE AT WESTCHESTER COUNTY POLICE, Petitioner,

v.A.A., Respondent.

365/20

Supreme Court, Westchester County, New York.

Decided on February 10, 2021

Westchester County Attorney, Christopher Inzero, Esq., Attorney for Petitioner.

Legal Aid Society of Westchester County, Hannah Robbins, Esq., Attorney for Respondent.

Robert M. DiBella, J. Respondent A.A. moves to declare New York's Extreme Risk Protection Act (herein referred to as "ERPO" statute or the "Red Flag Law") set forth in CPLR 6340 - 6347 unconstitutional and unenforceable due to violations of both the United States Constitution and the New York State Constitution. Petitioner opposes the motion. For the reasons set forth herein, the motion to declare the Red Flag Law unconstitutional and unenforceable is denied. The portion of the motion to seal the papers and proceedings until the final hearing and determination is also denied at this juncture.

In early July 2020, respondent was being treated at Putnam Hospital allegedly due to suicidal thoughts. It is alleged that respondent falsely denied having a firearm to the hospital staff, whereby they asked respondent's mother to check and confirm. Upon her finding a rifle in respondent's home, the hospital indicated that it would not release respondent until they received confirmation that the rifle had been removed and secured. On July 3, 2020, a Westchester County Police Department ("WCPD") officer was directed to respondent's residence identified as XXXXX, Cortlandt, New York, to assist with the surrendering of a firearm. The rifle identified as Hi Point 9 Millimeter Rifle, Model Number 995TS with Serial Number F56720 was transported to the WCPD Headquarters Property Unit for safekeeping. Respondent was subsequently released from the hospital. It is alleged that respondent's mother also informed the detective that respondent was a threat to himself and had also threatened her in the past.

On July 13, 2020, respondent met with WCPD detectives at Headquarters to discuss the rifle. Respondent indicated that he purchased the rifle on January 30, 2015 and did not make any modifications to it. Respondent was then informed of his Miranda rights and respondent agreed to continue speaking with the detectives. Respondent acknowledged that he owned the rifle, had purchased it legally, and did not modify it except to put a flashlight on it. He also stated he tried to purchased another firearm in May 2020, but was denied due to the results of a National Instant Criminal (NICS) Background Check. He further stated he had magazines and ammunition at his residence. Respondent was arrested for Criminal Possession of a Weapon in the 3rd Degree, pursuant to Criminal Procedure Law § 265.02(7) and Criminal Possession of a Rapid Fire Modification Device, pursuant to CPLR § 265.01(c).

On or about July 13, 2020, a WCPD Detective filed an application in New York Supreme Court, Westchester County for an ERPO pursuant to CPLR 6341 and sought a Temporary Extreme Risk Protection Order ("TERPO"). This Court issued a TERPO on July 13, 2020 pursuant to CPLR 6342, finding "probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a)." In granting said order, the Court prohibited the respondent from "purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun" and to "immediately surrender any and all" such items. A search order was also made, allowing for the search of the respondent and his premises, to be made within the hours of 6:00 AM and 9:00 PM. The matter was set down for a hearing for a final ERPO to be held on July 20, 2020. Motions were subsequently made by both parties, and the hearing was adjourned for determination of the motions. The TERPO has also been extended to the hearing date.

In this motion, respondent seeks an order declaring the ERPO statute set forth in CPLR 6340 - 6347, as unconstitutional and unenforceable. Specifically, respondent argues that the ERPO statute is unconstitutional due to vagueness, that it violates probable cause search and seizure provisions, that it violates the right against self-incrimination, that it violates the right to counsel provision and that it violates the right to bear arms provision of the Second Amendment of the United States Constitution. A similar motion was recently determined by this Court (Davidson, J.) in the Matter of Det. George Ruiz v. Steven McDowell , Index No. 511/2019.

New York, like many other states, has recently enacted what is commonly referred to as a "Red Flag Law" in an attempt to prevent tragedies that have resulted from gun violence at the hands of individuals that exhibited warning signs that they posed a risk of harm to themselves or others. Many jurisdictions have suffered shootings in schools, workplaces, movie theaters and public events that took the lives of innocent individuals. Incidents of mass shootings have been steadily increasing. In the last 10 years, the frequency of mass shootings has tripled. See " Red Flag" Laws: How Law Enforcement's Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence, by Gay Coleman, 61 B.C. L. Rev. 1491, 1494 (April 2020) and cites therein.

New York's Red Flag Law, or ERPO statute, became effective on August 24, 2019. New York's Red Flag Law allows a petitioner, who may be any law enforcement, family member or school administrator, to file a civil proceeding in Supreme Court seeking a final order prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm for a specified time¹ . In conjunction with the application for an ERPO, a petitioner may seek an ex parte temporary order immediately prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm, if certain criteria are met. Pursuant to CPLR 6342(1), a court may grant a TERPO only upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the Mental Hygiene Law ("MHL"). MHL § 9.39 defines "likelihood to result in serious harm" as:

1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

As a starting point in this Court's analysis of the respondent's arguments, it is well established that "[l]egislative enactments enjoy a strong presumption of constitutionality." LaValle v. Hayden , 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 (2002). Although not irrefutable, a party seeking to challenge a duly enacted statute bears the initial burden of demonstrating beyond a reasonable doubt that the statute is invalid. See id. Further, "courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional." Id. , citing Alliance of Am. Insurers v. Chu , 77 N.Y.2d 573, 585, 569 N.Y.S.2d 364, 571 N.E.2d 672 (1991).

First, respondent argues that the Red Flag Law is unconstitutionally vague. In addressing a vagueness challenge, a court must enlist a two-part test to determine whether: (1) the statute is sufficiently definite to give a person of ordinary intelligence fair notice of forbidden conduct under the statute and (2) the enactment provides officials with clear standards of enforcement. People v. Stuart , 100 N.Y.2d 412, 421, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003). Further, "[t]he degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment.... The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Moreover, if, as applied to the respondent, the statute is not impermissibly vague, the inquiry ends there and the court will not strain to imagine situations where the application may not be so clear. See People v. Stuart , 100 N.Y.2d at 422, 765 N.Y.S.2d 1, 797 N.E.2d 28.

Respondent argues that the Red Flag Law is unconstitutionally vague because it fails to provide a person of ordinary intelligence notice of the exact nature of the conduct which would give rise to a TERPO or ERPO after hearing. Respondent argues that the statute is not adequately defined because it requires a finding (by probable cause for a TERPO and clear and convincing evidence for an ERPO) of a likelihood that something will happen in the future, rather than something more concrete. Further, respondent challenges the incorporation of the MHL definition of "likelihood to result in serious harm" without any further incorporation of MHL principles or due process protections preventing wide interpretations.

These arguments are unavailing. Relevant factors are enumerated in CPLR 6342 for the Court to consider in determining whether grounds exist to issue a TERPO including, but not limited to,

(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

(b) a violation or alleged violation of an order of protection;

(c) any pending charge or conviction for an offense involving the use of a weapon;

(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

(e) any history of a violation of an extreme risk protection order;

(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

(g) evidence of recent acquisition of a firearm,

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