This is a proceeding under Article 63-A of the CPLR seeking entry of an Extreme Risk Protection Order ("ERPO") against Respondent R.D. [Name Redacted]. A temporary ERPO ("TERPO") was entered by the Hon. Roger McDonough upon the ex parte application of petitioner New York State Police ("NYSP") on January 2, 2025. The basis for issuing the TERPO was potential suicidal ideation and irrational behavior towards the law enforcement personnel who responded to her home. A prompt hearing on a final ERPO was scheduled; however, respondent requested an adjournment for a period of two months. The hearing was conducted on March 10, 2025.

As a preliminary matter, respondent does not own any guns. She was previously convicted of felony Driving While Intoxicated and accordingly is legally prohibited from owning firearms. Therefore, as a practical matter, the disposition of this petition will make no difference whatsoever to respondent's inability to access firearms. Nevertheless, petitioner [*2]wished to proceed with the application. Petitioner called three NYSP troopers and a NYSP Investigator to testify. Respondent opposed the petition, denying that she is a danger to herself or others, and testified on her own behalf. She also called her adult son, D.B. [Name Redacted], as a witness. Upon the evidence presented the petition is denied and the TERPO vacated.

Respondent is a 69 year-old woman who lives alone. She has a history of disputes with her neighbors centered on her belief that they are, inter alia, stealing her WiFi and causing her electronic devices to malfunction. Primarily in connection with these disputes, NYSP records indicate that she has contacted the police nearly two dozen times in the past few years. In addition, she alleges that a few months ago, police conducted a warrantless search for a bomb in her house. Her son characterized this as an incident of "swatting,"^[FN1] but no further details regarding this alleged incident were presented by either side. Nevertheless, apparently as a result of that incident, respondent's trust in the police has markedly declined and she feels she is not always treated respectfully by law enforcement.

With this context in mind, respondent contacted law enforcement on January 1, 2025, to allege ongoing problems with her neighbor and requested that an officer be dispatched to investigate her claims. According to the trooper who spoke directly to respondent on this call, respondent stated in substance that if NYSP did not treat the situation as an emergency, she would kill herself because that was the only way to get someone's attention. Troopers responding to her home were advised of her potential suicidal ideation.

When a NYSP trooper arrived at her home, respondent was briefly cooperative but then became scared and retreated into her home, apparently suspecting that the trooper was not, in truth, a law enforcement officer. Part of this fear appears to have stemmed from the fact that NYSP troopers do not wear or carry formal badges and thus the responding trooper could not produce one in response to respondent's request. As respondent retreated into her home, the responding trooper sought to prevent her from locking herself in. In an effort to achieve this, the trooper broke the glass to her storm door so he could turn the handle, but by that point she had succeeded in locking her front door.

When additional troopers arrived, they looked for other points of entry and continued to try to persuade respondent to permit them entry. Ultimately unsuccessful in both respects, the troopers warned respondent that they would break down her door unless she let them in. Respondent did not let them in. A trooper then kicked the door approximately eight times, with the handle lock and deadbolt ultimately giving way. Having kicked the door open, troopers took respondent into custody, over her objections, for purposes of sending her for a mental health evaluation under MHL § 9.41. Respondent was not charged with any crime.

In order to grant the petition, the Court must find that the petitioner has established, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to herself or others. (CPLR §6342[2]). The law permits the Court to consider any evidence, but requires the Court, at a minimum, to consider seven specific factors. As petitioner notes, however, the Court is not required to find any of the seven factors present in order to grant an ERPO. (CPLR §§6342[2]; 6343[2]). Petitioner acknowledges that five of the seven (all relating to weapons and violations of orders of protection) are not present here. As to [*3]another — recent or ongoing abuse of alcohol — petitioner suggests this may exist on the basis of respondent's DWI conviction. Respondent stated, however, that this conviction occurred more than 15 years ago. Petitioner did not obtain any records relating to the underlying arrest or conviction; and no other evidence regarding respondent's alcohol use was adduced at the hearing. Accordingly, the Court cannot find that there is evidence of "recent or ongoing" alcohol abuse.

The only mandatory factor which may be present, therefore, is "a threat or act of violence or use of physical force directed toward self, the petitioner, or another person." Petitioner points to two related factual allegations in support of its application: (1) respondent's purported suicidal ideation in her phone call with NYSP, and (2) respondent's mental health, which appears to be impaired by delusional or paranoid thinking as manifested by her long-term issues with her neighbors and her reaction to the police on the night of these events.

Turning first to the call, respondent denies stating that she would kill herself. To the contrary, she claims to have said something to the effect of, "it's not an emergency and it's not like I'm going to kill myself." A recording of the call would obviously be dispositive, but none was produced.^[FN2] It is possible, of course, that there was some sort of misunderstanding and what respondent said and what the trooper heard were not the same. On balance, however, the Court credits the testimony of the trooper. She is trained to be attentive to such statements and has no reason to fabricate. Her demeanor on the witness stand was calm and direct and she did not vary from her account on cross-examination. Respondent's claim, on the other hand, does not make sense in context.

Although the Court concludes that respondent made the statement, in sum and substance, as reported by the trooper on the call, this does not necessarily indicate that respondent was genuinely suffering from suicidal ideation. There is nothing to suggest that she was depressed or distraught, or that she had called NYSP in a mental health crisis. While it was reasonable for the police to act on the possibility that her statement reflected a genuine risk that she would engage in self-harm, at this stage the Court must evaluate what her intent really was, as illustrated by the evidence presented. In so doing, the Court finds no basis to conclude that respondent was actually suicidal at any time during this episode. To the contrary, taken at face value, it appears that she made the statement to manipulate NYSP into responding to her call promptly. This is hardly laudable, but for purposes of the present hearing, it does not establish that she is a danger to herself.

Turning to the events at respondent's home, petitioner submits that her reaction to the police — who respondent had asked to come to her house — was irrational and paranoid and therefore reflective of potentially serious mental illness. At the time of the initial breakdown of contact, there was only one trooper on the scene. His testimony and her testimony as to the sequence and tenor of their interactions was, to some degree, in conflict. Footage from the trooper's body-worn camera would have enabled the Court to evaluate respondent's demeanor and conduct in the moment, and would have constituted the best evidence of what happened that [*4]night at respondent's home. Petitioner chose not to offer that trooper's camera footage, nor did it offer camera footage from any of the other troopers who subsequently responded to the scene.

As of the time that she retreated into her home, NYSP knew that respondent was ambulatory, uninjured and had not repeated any suicidal ideation. Petitioner also knew that she was, perhaps irrationally, frightened of the responding trooper. Petitioner's subsequent conduct of breaking the glass on her storm door as she retreated into her home, demanding entry and then breaking down her door, do not appear likely to have allayed those fears. Respondent, who wears an emergency medical alert necklace, claims that she promptly pressed her alert button and was in communication with that dispatcher while the police were pressing for entry into her home. However, beyond her testimony, she did not offer any corroborating evidence from the medical alert company. Respondent did not harm herself while the police were obtaining entry nor did she express any suicidal ideation.

Petitioner notes that respondent's conduct on January 1, should be viewed in context both of her history and statements made at the hearing, which reflect both paranoid and delusional thinking with respect to her neighbors. Notably, petitioner has been the subject of a full stay-away order of protection with respect to one of those neighbors, which only recently expired. Respondent asserted, however, that there were reciprocal orders of protection. The underlying circumstances were not explored and the Investigator testified that his records search would not have identified the reciprocal order, if it exists. In connection with this petition, no statement was taken from the protectee-neighbor, nor was she subpoenaed to testify.

With respect to respondent's mental illness, if any, petitioner did not offer any medical evidence. In particular, petitioner did not seek to obtain the records of respondent's admission on January 1. This Court has repeatedly emphasized that where an ERPO is sought on mental health grounds, some medical evidence will generally be required to permit the Court to make the necessary evidentiary findings. (See, e.g., Maxwell v D.L., 2024 WL 4797277 [Sup.Ct. Ulster Cty. 2024]). This case might have been the rare exception because both the petitioner and her adult son were prepared to, and did, testify regarding her mental health diagnoses and history. Their testimony, however, did not support the allegations in the petition.

Respondent disclosed that she has been diagnosed with Post-Traumatic Stress Disorder ("PTSD") and anxiety, for which she is prescribed Xanax. D.B. confirmed his mother's diagnoses and testified that she has been under the care of a psychotherapist for many years. D.B. further testified that, aside from his periodic visits, respondent lives alone and is able to take care of herself unassisted.

It bears emphasizing that a person may not be deprived of their civil rights solely because they have a mental illness or struggle with mental well-being. A person could, for example, live an entirely delusional life without provoking any enforcement action by the government. As relevant to ERPOs, the state's right to enter a restraining order is dependent on a finding that an individual is a danger to themselves or others.

There is no serious suggestion here that respondent poses any danger to anyone else. To the extent that the unrelated stay-away order of protection hints otherwise, no evidence was presented to substantiate that supposition; nor is there evidence that respondent has ever threatened anyone.

As for suicidal ideation, respondent adamantly denies it. In her sworn testimony, she recounted that several years ago her son risked his life to save her from a fire and firmly stated that as a result of that experience she would never consider harming herself. D.B. confirmed that [*5]he has no concerns that his mother would harm herself (or him, or anyone else). While he does not live with his mother, he testified that he sees her regularly, for multiple days at a time. When the issue in an ERPO is one of mental health and risk of self-harm, the testimony of a close family member who is deeply familiar with the respondent is highly persuasive evidence.

Meanwhile, there is no evidence that respondent suffers from depression or suicidal thoughts, and she has no history of any suicide attempts. Literally, the only evidence presented to support potential harm to herself is the single, likely off-hand, statement on one phone call with NYSP. This does not constitute clear and convincing evidence that respondent is likely to engage in conduct that would result in serious harm to herself (or others).

Separately, respondent complains that NYSP's action of forcibly entering her house for the purpose of sending her for a compelled mental health evaluation was a violation of her 4th Amendment right to be free from warrantless searches and seizures in her home. This issue is not properly before the Court, nor would it be necessary for the Court to disregard any evidence obtained after the entry, even if the entry were illegal. In any event, the police actions here likely fall within their authority to make a warrantless entry in exigent circumstances. Nevertheless, the Court takes the opportunity to remind petitioner that the scope of that authority is not unlimited and courts have given varying guidance. (See generally Caniglia v Strom, 593 U.S. 194 [2021][holding 9-0 that police violated citizen's Fourth Amendment rights where, after sending potentially suicidal individual for mental health evaluation, they entered his home over his objection to seize his guns]; Brigham City, Utah v Stuart, 547 U.S. 398 [2006][police may enter home without warrant when they reasonably believe "that an occupant is seriously injured or imminently threatened with such injury"]; People v Ormanian, 55 Misc 3d 566 [City of Gloversville, City Ct. 2016][where police had reports that defendant's daughter had made suicidal comments and defendant physically blocked police entry, police were permitted under exigent circumstances to enter home to confirm welfare of daughter]).

Based on the foregoing, the Court will separately issue a form order denying the petition and dismissing the TERPO.

This shall constitute the Decision the Court. The original Decision is being delivered to the Ulster County Clerk for filing. The signing of this Decision shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.