Petitioner Matthew Spickler, a New York State Police ("NYSP") Investigator, commenced this special proceeding under CPLR article 63-a ("Article 63-a"), seeking issuance [*2]of an extreme risk protection order against the named respondent.^[FN1]

Respondent moves under CPLR 3211 for an order dismissing the proceeding and declaring Article 63-a unconstitutional.

On July 20, 2023, petitioner applied ex parte for a temporary extreme risk protection order ("TERPO") under Article 63-a (see NYSCEF Doc No. 12 ["Application"]). As part of the Application, petitioner attested that respondent was "likely to engage in conduct that would result in serious harm to self or others as defined in [Mental Hygiene Law] § 9.39 (a)," citing "a threat . . . of violence . . . [by respondent] directed toward self . . ." (id.). The facts and circumstances giving rise to the Application were described as follows:

While in custody for possession of child pornography, the Respondent did make admissions of wishing to inflict self harm. The Respondent stated, "Can you just shoot me in the head?", ". . . a bullet to the head." The Respondent further stated, "Last year I was going to blow my head off. It's over." The Respondent further stated he was in possession of two rifles and a shotgun at his residence. The Respondent consented to a search of his residence, where two rifles and one shotgun were located and secured by members of [NYSP] (id.).

The Court found probable cause to believe that respondent is likely to engage in conduct that would result in serious harm based on his "credible threat of self-harm [made] in the presence of petitioner" (NYSCEF Doc No. 13). The TERPO prohibited respondent from "purchasing, possessing, or attempting to purchase or possess a firearm," required respondent to immediately surrender all firearms, and authorized NYSP to conduct a further search of respondent's residence for additional firearms (id.).

The Court scheduled a hearing for July 28, 2023 to determine whether a final extreme risk protection order ("ERPO") should issue against respondent (see NYSCEF Doc No. 14). Respondent appeared and requested an adjournment to obtain counsel, which the Court granted.

Through counsel, respondent requested a further adjournment in order to bring on a motion challenging the constitutionality of Article 63-a.

Respondent now moves for an order dismissing this proceeding and declaring Article 63-a, also known as the "Red Flag Law," to be unconstitutional (see NYSCEF Doc No. 3).

Respondent provided notice of the constitutional challenge to the Attorney General (see NYSCEF Doc No. 5; CPLR 1012 [b] [1]), who opposes the motion.

Through his memorandum of law, respondent urges the Court to dismiss this proceeding on the ground that Article 63-a is "unconstitutional under the Second and Fourteenth Amendments of the United States Constitution" (NYSCEF Doc No. 9 ["MOL"] at 4).

Respondent begins with precedent from the United States Supreme Court holding that the Second Amendment protects an individual's right to keep and bear arms "for self-defense," and [*3]that to justify a firearm regulation, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation" (New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US 1, 17 [2022]).

Respondent goes on to argue that Article 63-a "fails the mandates of both the Second and Fourteenth Amendments" because it "fails to protect a citizen's due process rights when denying his or her fundamental right to firearm possession guaranteed by the Second Amendment" (MOL at 5). This hybrid Due Process/Second Amendment challenge is based largely on the Legislature's incorporation into Article 63-a of the "likely to engage in conduct that would result in serious harm" standard from Mental Hygiene Law ("MHL") § 9.39 (a) (see CPLR 6341; 6342 [1]; 6343 [2]).

Respondent relies on two trial court decisions, one from Monroe County and another from Orange County, holding Article 63-a unconstitutional due to the disparate protections accorded under the statutory schemes. "[U]nlike other New York statutes and laws which regulate fundamental rights," such as MHL article 9, "'protections of due process, expert testimony and representation by counsel[] are neither present, nor guaranteed under CPLR § 63-a proceedings'" (MOL at 6, quoting G.W. v C.N., 78 Misc 3d 289, 300 [Sup Ct, Monroe County 2022] [Moran, J.]; accord R.M. v C.M., 79 Misc 3d 250, 252-253 [Sup Ct, Orange County 2023] [Brown, J.]).

Respondent acknowledges that other courts have rejected this mode of analysis (see MOL at 6, citing Matter of J.B. v K.S.G., 79 Misc 3d 296, 300-301 [Sup Ct, Cortland County 2023] [Masler, J.]), but maintains that the contrary rulings "misapprehended the reasoning in G.W." (MOL at 7). "Nowhere in the decision in G.W. does the Court say that a finding of mental illness is required. Rather, the G.W. court questioned why the state afforded a different level of procedural protections in mental hygiene cases versus Red Flag Law cases when both reference the same statutory definition" (id.).

Respondent does not challenge Article 63-a as applied to him or contend that the statutory scheme is unconstitutional based solely upon the Second Amendment.^[FN2] Rather, respondent argues that Article 63-a is facially unconstitutional because it does not provide adequate due process protections under the Fourteenth Amendment for persons seeking to protect fundamental rights guaranteed by the Second Amendment. According to respondent, "it is the state's decision to provide more procedural safeguards to some fundamental rights but not others which violates due process" (NYSCEF Doc No. 23 at 3).

The rationale of cases holding Article 63-a unconstitutional on this ground can be summarized as follows: "Second Amendment rights are no less fundamental than, for example, Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection" (G.W., 78 Misc 3d at 295). Having incorporated the "likely to engage in conduct that would result in serious harm" standard from the MHL, "the legislature [*4]must provide that a citizen be afforded procedural guarantees, such as a physician's determination that a respondent presents a condition 'likely to result in serious harm,' before a petitioner files for a TERPO or ERPO. Since this standard is required to prevent a respondent from being deprived of fundamental rights under the [MHL], then anything less (as contained in article 63-a) deprives a citizen of a fundamental right without due process of law" (id.; accord R.M., 79 Misc 3d at 252-253).

There is, however, a substantial body of case law rejecting the rationale of G.W. and upholding the constitutionality of Article 63-a from similar challenges. Rather than "reinvent the wheel," the Court will simply quote at length from Justice Schreibman's decision in Haverstraw Town Police [PO Vega No. 238] v C.G. (79 Misc 3d 1005, 1015-1016 [Sup Ct, Ulster County 2023]):

The focus of Respondent's argument here — and the court's analysis in G.W. — is the application of the standard in the [MHL] to respondents in ERPO cases. Respondent discusses at length the fact that a physician's medical determination is required in the first instance to forcibly hospitalize a mentally ill person and that medical testimony is universally offered in the event of a subsequent hearing to extend the involuntary retention of the patient.

As an initial matter, this framework unduly conflates the substance of the Red Flag Law and the [MHL]. Certainly, the Red Flag Law was intended, in part, to reduce access to guns by persons experiencing a mental health crisis. In this regard, it is understandable that the Legislature looked to the [MHL] for definitional guidance. But the law also was plainly intended to encompass circumstances outside the realm of mental illness such as, for example, perpetrators of domestic violence. The Red Flag Law does not require proof that a respondent is eligible for involuntary commitment. It does not require proof that a respondent is mentally ill, at all. Rather, the Red Flag Law simply directs courts to apply the definition of "likely to result in serious harm" from the [MHL] when assessing a particular Respondent's behavior.

Respondent also argues that the [MHL] offers greater procedural protections and that the Red Flag Law is deficient by comparison. (See G.W., 181 N.Y.S.3d at 437). This is not correct. Section 9.39 of the [MHL] permits an individual to be deprived of their liberty — confined to a mental health facility against their will — on the say-so of a private citizen armed only with a medical license. The involuntary confinement may be extended to up to 15 days upon the say-so of a second private citizen with no greater credentials or authority. During this period, the individual is entitled to a hearing, but only if they (or a family member/advocate) formally request one, in which case the hearing must be held within five days of the request. Only at that point does the confined individual have recourse to judicial process. (MHL § 9.39).

In contrast, even the issuance of a TERPO requires a Court to make factual findings to determine probable cause, and the Court may take recorded, sworn testimony. The subject of a TERPO is then entitled to a full evidentiary hearing within six business days, which can be adjourned at the request of the respondent, but not the petitioner. A petitioner must establish that a [T]ERPO should issue under a 'clear and convincing' standard. An evidentiary hearing is the essence of Fifth Amendment due process (See Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. [*5]886, 894-95, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). At such a hearing, the absence of a requirement that the court receive expert mental health testimony cannot render the Red Flag Law invalid. Courts are well-equipped to evaluate evidence and assess such evidence against statutory standards. If the evidence is insufficient — and the lack of medical evidence in some cases may highlight such a deficiency — then the petition will be denied. But courts cannot impose a mandate for such testimony (see G.W., 181 N.Y.S.3d at 437) — especially where a finding of mental illness is not required by the statute — as the price for finding the law constitutional.

In other words, in a proceeding under MHL § 9.39, "[t]he required determinations that a person has a mental illness for which in-patient treatment is appropriate, and that the mental illness is likely to result in serious harm, can be made only by a qualified medical expert" (J.B., 79 Misc 3d at 300). But since Article 63-a "does not require findings that respondent is mentally ill, or that the likelihood of serious harm result from mental illness" (id. at 301), "whether a person has engaged in the type of conduct that evinces a likelihood of serious harm is a fact-based determination that may be made without the need for an expert opinion" (id.).

Courts throughout the State have adopted the rationale of C.G. and J.B. in rejecting facial constitutional challenge to Article 63-a based on the argument made by respondent herein (see People v R.L., 80 Misc 3d 1227[A], 2023 NY Slip Op 51112[U] [Sup Ct, Suffolk County, Oct. 17, 2023] [Ambro, J.]; accord Melendez v T.M., 80 Misc 3d 1235[A], 2023 NY Slip Op 51169[U] [Sup Ct, Westchester County, Nov. 3, 2023] [Giacomo, J.]).

Given the weight and persuasive force of the authority contrary to G.W.,^[FN3] the Court concludes that respondent has not overcome the "strong presumption of constitutionality" enjoyed by legislative enactments and proven the facial invalidity of Article 63-a "beyond a reasonable doubt" (Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586, 593 [2013] [internal quotation marks and citation omitted], cert denied 571 US 1071 [2013]).^[FN4]

Based on the foregoing, it is

ORDERED that respondent's motion to dismiss this proceeding and declare Article 63-a unconstitutional is denied; and it is further

ORDERED that the final ERPO hearing (in person) is scheduled for March 1, 2024 at 10:30 a.m. in the Albany County Courthouse.

NYSCEF Doc Nos. 3-9, 11-21, 23.