Gonyo v. D.S.

210 N.Y.S.3d 612

82 Misc.3d 1018

In the Matter of New York State Police Investigator Christopher GONYO, Petitioner,

v.D.S., Respondent.

Supreme Court, Dutchess County.

Decided on January 19, 2024

New York State Attorney General, (Attn: Suzette Corinne Merritt, Assistant Attorney General), Extreme Risk Protection Order Unit, Poughkeepsie Regional Office, 1 Civic Center Plaza, Suite 401, Poughkeepsie, NY 12601, for petitioner.

John Ingrassia, Esq., Larkin & Ingrassia, LLP, 356 Meadow Ave., Newburgh, NY 12550, and Wayne E. Gosnell, Jr., Clayman Rosenberg Kirshner & Linder, LLP, 305 Madison Avenue, Suite 650, New York, NY 10165, for respondent.

Thomas R. Davis, J.

I. Introduction

This challenge to New York’s "Red Flag" law arises in the wake of the United States Supreme Court’s decision in June of 2022, New York State Rifle & Pistol Assn., Ina v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022].

The Respondent challenges the constitutionality of the state’s Red Flag Law — Article 63-A of the Civil Practice Law and Rules -- which provides for the entry of Extreme Risk Protection Orders ("ERPO"), disarming those deemed dangerous. The Respondent challenges both the substantive statutory provisions and the procedural provisions under the Second Amendment to the United States Constitution as made applicable to the states by the 14th Amendment.

a. The petition.

On July 9, 2023, New York State Police Investigator Christopher Gonyo filed with the New York State Supreme Court, on a form promulgated by the Unified Court System, an application for a Temporary Extreme Risk Protection Order against the Respondent.

The Petition alleged that the Respondent was "likely to engage in conduct that would result in serious harm to self or others" and checked boxes on the form as follows:

"[T]he respondent has engaged in, exhibited, or committed the following behaviors(s) or act(s) [check all that apply]:

√ A threat or act of violence or use of physical force directed toward self, the petitioner or another person;

[…]

√ A pending charge or conviction for an offense involving the use of a weapon;

√ The reckless use, display or brandishing of a firearm, rifle or shotgun;"

Under the narrative portion of the form, the following was completed:

"On 7/8/23, the New York State Police received a complaint about an incident which had occurred on 4/7/23. Complainant,¹ stated she was in a verbal argument with [ ], D.S., about the house not being cleaned. After believing D.S. left the residence, N.S. went into the bedroom to pack a bag to leave. D.S. came up to the bedroom with a firearm in his hand and instructed N.S. to get on her knees. D.S. placed the gun on top of N.S.’s head and stated it would all be over quick and then he would shoot himself causing N.S. to be afraid and she believed D.S. was going to kill her. D.S. then left the residence and N.S. then left the residence."

Attached also was a domestic incident report and a supporting deposition of N.S. Both those documents recited the same basic allegations.

Also checked was a box that indicates the Petitioner has reason to believe that the respondent "owns, possesses or has access to a firearm, rifle or shotgun."

[1] In the papers submitted on this motion, the Petitioner has made reference to allegations that the Respondent raped the alleged victim, which Respondent denies. As those allegations are not contained in the ERPO application and no application has been made to supplement or amend the ERPO application, they have not been considered.

On an ex-parte basis, upon submission of the application for an Extreme Risk Protection Order, a Temporary Extreme Risk Protection Order was issued. A hearing date was originally set for July 14, 2023. The Respondent appeared on the hearing date with counsel and requested the opportunity to make a full submission by motion challenging the constitutionality of the ERPO. The matter has been briefed by both sides. Experts have been retained by both parties who opine on the history of firearms regulation. The Temporary ERPO has been extended to allow time for submission on the constitutional question and the Court’s ruling. The hearing on an Extreme Risk Protection Order awaits the Court’s ruling.

b. The Constitutional Background.

Bruen essentially held that any regulatory scheme that impacts the "right" to carry a firearm must be in accordance with historical understanding of the acceptable restrictions on the Second Amendment at the time of its ratification (1791) and of the 14th Amendment (1868), making the Second Amendment applicable to the States.

While there has been much criticism of using "historical traditions" of two to three centuries ago as a basis for determining the scope of a right in today’s world, it is the analysis that under US Supreme Court precedent must be applied.

The question presented, therefore, is whether Article 63-A of New York’s Civil Practice Law and Rules (New York’s "Red Flag Law") is substantively constitutional. Also challenged is whether the procedure under the law passes constitutional muster.

At the time of this decision and order, the US Supreme Court has heard arguments in the case of Zackey Rahimi. United States v. Rahimi, 61 F.4th 443 [5th Cir. 2023], cert granted, — U.S. —, 143 S.Ct. 2688, 216 L.Ed.2d 1255 [2023]. Rahimi involves the criminal prosecution under Federal Law of an individual who possessed a firearm in violation of the US Code’s (18 USC 922(g)(8)) provisions barring possession of a firearm by those who are restrained under protection orders in family law matters. It is anticipated that Rahimi may very well provide guidance as to what are the acceptable limits of firearms regulations; what are the acceptable historical precedents for firearms regulations; whether dangerousness is an acceptable category for deprivation of Second Amendment rights; and the true meaning of the "historical analogy" test established — for the very first time in constitutional law -- by Bruen. But even the most optimistic soothsayer would be challenged to believe that this Decision and Order will analyze the questions in full accordance with what holds forth from the US Supreme Court in the next few months given the broad parameters established under Bruen and the difficulties with applying its directives. Interpretations and applications of Bruen by lower courts have been widely divergent and thus, very difficult to apply as precedent.

It is noteworthy as well that only a few weeks ago, the Second Circuit Court of Appeals decided challenges to New York’s statutes regarding concealed firearms carry enacted in the wake of Bruen, Antonyuk v. Chiumento, 89 F.4th 271 [2d Cir., 2023]. The Second Circuit’s interpretations of Bruen are important as well.

c. New York’s Red Flag Law

Until the notorious murders in Buffalo in May of 2022, New York’s Red Flag Law was seldom used. In April of 2020 there were nine Extreme Risk Protection Orders issued state-wide. In the month of November of 2023 there were 375 (New York State Unified Court System Division of Technology & Court Research — https://ww2.nycourts.gov/erpo-36201). Although their use throughout the state varies, they have gained substantially wider impact.

Under Article 63-A, a petitioner — defined as either a police officer, a District Attorney, a family or household member of the respondent, a school administrator, a licensed physician or other designated mental health professional — may file a petition with the Supreme Court for a temporary and one-year ERPO. CPLR § 6340.

The application must be sworn and set forth the "facts and circumstances" justifying the issuance of an ERPO. When the potential filer is a District Attorney or police officer and credible evidence supports the application, the filing is mandatory. CPLR § 6341.

Upon the filing, the Court may issue a temporary ERPO if it finds probable cause to "believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law." CPLR § 6342. Section 9.39 of the MHL defines such conduct as:

" "Likelihood to result in serious harm" as used in this article shall mean:

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."

Mental Hygiene Law § 9.39

The Court may also authorize a search for firearms in the Respondent’s possession "in accordance with procedures of article six-hundred ninety of the criminal procedure law."

Once the petition has been filed, the statute calls for an expedited hearing on whether an ERPO should issue, which may be adjourned at the Respondent’s request. CPLR § 6343 (1). The petitioner has the burden of establishing the dangerousness as defined above of the Respondent by "clear and convincing evidence." If the Court finds the burden has been met, it may enter an ERPO for a duration of one year.

Those subject to an Extreme Risk Protection Order are thereafter prohibited from possessing or attempting to possess a firearm for the duration of the order. CPLR § 6343 (3) (b).

The duration of the Order may be extended. CPLR § 6345. The Respondent may also seek modification of the order. CPLR § 6343 (6).

II. Initial Constitutional Questions

a. The appropriate constitutional analysis.

The analysis begins with a determination of whether the constitutional challenge to the statute should be determined as applied or more broadly on its face,

[2, 3] When challenging a statute on a constitutional basis, in all but the First Amendment context, the standard to be met is whether the statute is unconstitutional as applied to the particular litigant’s case....