Red flag law still falls short
The application process for extreme risk protection orders must be accessible. New York’s is anything but.
The recent mass shooting on the Michigan State campus provides yet another gut-wrenching example of an individual terrorizing a community and robbing innocent victims of their lives. Once again, the shooter was someone with a history of behaving erratically or violently, and we wonder, “Why was this person allowed to keep a gun?” States across the country have passed red flag laws, which provide a mechanism for removing guns from those who pose a threat to themselves or others, but these laws work only when the process is straightforward and accessible to the person reporting the danger.
Following last year’s horrific shooting in Buffalo, Gov. Kathy Hochul and the Legislature made important changes to strengthen New York’s red flag law, which lays out the process to obtain an extreme risk protection order (ERPO) from a judge. Police and prosecutors have filed thousands of ERPO applications, and in the wake of the Supreme Court’s decision gutting New York’s strong gun laws, my office is working to expand our capacity. Still, more must be done to help educators, health professionals, and family members quickly and efficiently access this lifesaving tool when someone poses a threat.
The process to apply for an ERPO is unnecessarily onerous, requiring completion of a maze of legal forms, traveling to a court to personally file the paperwork, paying a $210 fee or applying for a waiver, and then, if a temporary order is granted, appearing in court for a hearing to make the order final. This legislative session, our lawmakers should work to make this process more accessible and efficient for applicants, the courts, and law enforcement.
First, the Legislature should exempt ERPO applications from court fees.
While prosecutors, police, and public school officials are not required to pay, family members, private school officials, private health care professionals and others must pay a $210 fee or file a separate application asking the court to exercise its discretion to waive it. Any eligible ERPO applicant should be able file at no cost without seeking a special exemption.
Next, the forms required to apply for an ERPO contain legal terminology that may confuse some people, especially those in crisis. Applicants are required to file a Request for Judicial Intervention form, choosing between 39 types of proceedings ranging from business law to asbestos claims, and they must complete an ERPO application laden with legal citations and defined terms. The Legislature should appropriate funds to help the courts streamline this process with a plainlanguage online form that asks applicants simple questions to elicit necessary information, guides them through the process, and automatically populates court documents with their answers. The Legislature should also provide funding for the creation of a smartphone app to expand access. To its credit, the Office of Court Administration has already hired a plain language coordinator, but more resources are needed for the technology to ease this process.
In addition, the Legislature and court system should explore how to ease the filing processes to obtain ERPOs. Currently, applicants must print their applications and personally file them at the correct court in the county where the at-risk person lives. Often, a family member, health care provider, or educator may learn of a risk from a phone call, text, or social media post when they are far away from the individual in crisis. This creates a significant obstacle for those who cannot access the proper court because of distance or transportation challenges, and these challenges are compounded when the applicant’s own safety is at risk.
In addition, the burdensome process may deter busy health care professionals and educators from applying for an ERPO when they learn of a threat because they cannot spare the time to complete the paperwork and deliver it personally to the courthouse. Courts should accept all ERPO filings electronically — through the web, by email, and through a smartphone app — saving critical time and speeding access for all applicants.
Finally, the Legislature should explicitly provide for virtual ERPO hearings. By allowing ERPO applicants to participate in the proceedings from their computer or smartphone in safety, from anywhere, they are spared further cost, lost work time, and additional child care expenses. Virtual hearings also would reduce disruptions for medical and educational professionals whose ability to leave their work is limited.
As we navigated the challenges of the pandemic, New York courts handled tens of thousands of proceedings virtually, and the Commission to Reimagine the Future of New York’s Courts has done excellent work exploring other opportunities to use remote proceedings to make access to justice more efficient, accessible and fair. We have the technological capacity to conduct these hearings remotely, and we should ensure that the law and court rules pose no barrier.
Applications for ERPOs have surged in the past year, and this is important progress, but we must do more to remove obstacles and ease the application process for these vital orders. I encourage the governor and our state legislators to take action on these important reforms.