R. M. v. C. M.

207 N.Y.S.3d 634

In the Matter of R. M., petitioner,

v.C. M., respondent-respondent;

Letitia James, etc., intervenor-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 2, 2024

March 20, 2024

APPEAL by the intervenor, Letitia James, in a proceeding for an extreme risk protection order pursuant to CPLR article 63–A, from an order and judgment (one paper) of the Supreme Court (Craig Stephen Brown, J.), dated April 4, 2023, and entered in Orange County. The order and judgment granted the respondent’s motion for a declaration that CPLR article 63–A is unconstitutional, declared that CPLR article 63–A is unconstitutional, and dismissed the petition.

Letitia James, Attorney General, New York, NY (Barbara D. Underwood, Ester Murdukhayeva, and Sarah Coco of counsel), intervenor-appellant pro se.

Larkin Ingrassia LLP, Newburgh, NY (Derek S. Andrews of counsel), for respondent-respondent.

Selendy Gay Elsberg PLLC, New York, NY (Andrew R. Dunlap, Korey Boehm, and Taylor Stone of counsel), for amici curiae District of Columbia and States of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.

Arnold & Porter Kaye Scholer LLP, New York, NY (W. Stewart Wallace and Arthur Luk of counsel), for amici curiae Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence.

Alvin L. Bragg, Jr., District Attorney, New York, NY (Steven C. Wu and John T. Hughes of counsel), amicus curiae pro se and for amici curiae Melinda Katz, District Attorney of Queens County, Michael E. McMahon, District Attorney of Richmond County, and Miriam E. Rocah, District Attorney of Westchester County.

MARK C. DILLON, J.P., BETSY BARROS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

OPINION & ORDER

BARROS, J.

The primary issue in this case is whether CPLR article 63–A, relating to extreme risk protection orders prohibiting a person from purchasing, possessing, or attempting to purchase or possess a firearm, rifle, or shotgun under certain circumstances, is constitutional on its face. We conclude that it is.

I. Factual Background

This proceeding was commenced by Police Officer R.M. of the City of Middletown against the respondent, C. M., on the ground that the respondent was "ACCUSED OF BRANDISHING A LOADED SHOTGUN, COCKING IT, AND POINTING IT AT HIS NEIGHBOR DURING A VERBAL DISPUTE." As a result of the incident, the respondent was charged with menacing in the third degree, a class B misdemeanor (Penal Law § 120.15). On January 20, 2023, a temporary extreme risk protection order was issued, based upon a finding of "probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to self or others." A hearing on whether a final extreme risk protection order should issue was scheduled for January 25, 2023.

The respondent was granted an adjournment until March 6, 2023, because he retained counsel who needed time to prepare. On March 6, 2023, the respondent moved for a declaration that CPLR article 63–A is unconstitutional under the Due Process Clauses of the United States and New York Constitutions (see U.S. Const 5th, 14th Amends; NY Const, art 1, § 6); the Second, Fourth, Fifth, and Sixth Amendments of the United States Constitution; sections 6 and 12 of article 1 of the New York Constitution; and Civil Rights Law § 4, which provides, in nearly identical language to the Second Amendment of United States Constitution, that "[a] well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." In addition to claiming that the statute violated his Second Amendment right to keep and bear arms, the respondent claimed that CPLR article 63–A was void for vagueness and deprived him of due process of law because no physician’s diagnosis was required for the issuance of an extreme risk protection order. Further, the respondent claimed that the statute violated the Fourth Amendment of the United States Constitution, and section 12 of article 1 of the New York Constitution, since once an emergency risk protection order is issued, the respondent’s person, home, and property may be searched for weapons. Moreover, the statute compels a respondent to disclose the possession of weapons and turn them over, which the respondent claimed was in violation of his right against self-incrimination (see U.S. Const 5th, 14th Amends; NY Const, art 1, § 6). The respondent also claimed that he had a right to counsel, since proceedings under CPLR article 63–A could lead to criminal charges (see U.S. Const 6th, 14th Amends; NY Const, art 1, § 6).

Finally, the respondent claimed that the statute was unconstitutional as applied to him, because the facts did not indicate that he was likely to cause harm. This argument is not a legal challenge to the constitutionality of the statute, but rather, an argument that he should prevail on the merits at a hearing. At a hearing after the issuance of a temporary extreme risk protection order, "the petitioner shall have the burden of proving, 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, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law" (CPLR 6343[2]), and if the petitioner is unable to meet that burden, the petition is dismissed on the merits (see Hines v. Doe, 78 Misc.3d 1092, 184 N.Y.S.3d 578 [Sup. Ct., Albany County]; Mallery v. DP, 78 Misc.3d 250, 184 N.Y.S.3d 511 [Sup. Ct., Schoharie County]; New York State Police Investigator Kyle W. Hutter v redacted, 2022 N.Y. Slip Op. 33882[U], 2022 WL 17169911 [Sup Ct, Saratoga County]).

In an order and judgment dated April 4, 2023, the Supreme Court, inter alia, granted the respondent’s motion and declared that the statute is unconstitutional because it deprives the respondent of his right to keep and bear arms without due process of law, and in violation of the Second Amendment, because the statute does not require the opinion of a medical expert that the respondent’s mental state was such that he was "likely to engage in conduct that would result in serious harm to himself … or others" (R.M. v. C.M., 79 Misc.3d 250, 252, 189 N.Y.S.3d 425 [Sup. Ct., Orange County] [internal quotation marks omitted]). The court also dismissed the petition. Letitia James, Attorney General of the State of New York, as intervenor, appeals.

II. The Statute in Issue

The purpose of CPLR article 63–A is "to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others" (2019 N.Y. Legis Ann at 20).

CPLR 6340(1) defines an extreme risk protection order as "a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun."

CPLR 6342(1) provides, in pertinent part, that upon an application for an extreme risk protection order:

"the court may issue a temporary extreme risk protection order, ex parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun, 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, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. Such application for a temporary order shall be determined in writing on the same day the application is filed."

In determining whether there are grounds for a temporary extreme risk protection order, the court "shall consider any relevant factors," including a nonexhaustive list of conduct by the respondent:

"(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, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor.

"In considering the factors under this subdivision, the court shall consider the time that has elapsed since the occurrence of such act or acts and the age of the person at the time of the occurrence of such act or acts" (id. § 6342[2]).

The subdivision further specifies that, "[f]or the purposes of this subdivision, ‘recent’ means within the six months prior to the date the petition was filed" (id.).

With respect to procedural safeguards, CPLR 6343(1) provides for a hearing "no sooner than three business days nor later than six business days after service of a temporary extreme risk protection order and, alternatively, no later than ten business days after service of an application under this article where no temporary extreme risk protection order has been issued." At the hearing, "the petitioner shall have the burden of proving, 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, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law" (id. § 6343[2]).

Mental Hygiene Law § 9.39(a) permits the emergency involuntary commitment for a period of 15 days of any person alleged to have a mental illness, upon a showing that "immediate observation, care, and treatment in a hospital is...