Albany Times Union (Sunday)

Red flag law still falls short

The applicatio­n process for extreme risk protection orders must be accessible. New York’s is anything but.

- By Eric Gonzalez ▶ Eric Gonzalez is the Brooklyn district attorney.

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.

 ?? Photo illustrati­on by Tyswan Stewart / Times Union ??
Photo illustrati­on by Tyswan Stewart / Times Union

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