Gun seizure orders surge
But judges tossing cases when troopers appear in court without counsel
The number of “extreme risk protection orders” being filed by State Police has surged in the wake of an executive order issued by Gov. Kathy Hochul last month that mandated troopers pursue the court applications whenever they encounter a person who is “likely” to be at risk of harm to themselves or to others.
The civil cases almost always involve firearms, and whether a person who poses a potential public safety threat should have those weapons seized by police through a court order — either temporarily or for up to a year. The governor’s order was issued days after a mass shooting in Buffalo in which 10 Black people were killed by an 18-yearold white man in what police said was a racially motivated attack.
But many of these “red-flag law” cases are being dismissed by judges across the state because the troopers and investigators filing the complicated applications with courts are often appearing at the hearings without attorneys and in proceedings in which they have been instructed by the State Police to not make legal arguments, according to correspondence and interviews with people familiar with the matter.
Earlier this month, a state Supreme Court justice in Orange County wrote a letter to the state attorney general’s office and the State Police “as a courtesy” informing them that he was requiring their respective offices be notified of applications for final extreme risk protection orders filed by State Police.
“State Police investigators and troopers are designated as petitioners in these matters and are required to appear in Orange County Supreme Court to prosecute them,” Justice Craig Stephen Brown wrote. “These law enforcement officials have been appearing without counsel ... in these civil proceedings in the Supreme Court. It does not appear their training includes the legal nuances necessary for them to proceed in such a manner in these legal proceedings (rules of evidence, conducting direct and cross exam
inations, etc.).”
Brown said that Hochul, who also cited mass shootings in Pennsylvania, California and Texas in her May 18 executive order, had “placed a priority on these proceedings” and that the attorney general’s office represents the State Police in other matters.
But in a June 9 written response, Vinita Kamath, an assistant attorney general in charge of the office’s regional office in Poughkeepsie, informed the judge that “our office will not represent (State Police) in these proceedings.”
Kamath’s one-paragraph response noted that in August 2019, after the state enacted its Red Flag Law providing for extreme risk protection orders — which could be petitioned by police officers, family members or school officials — they had discussions with State Police and determined they would not litigate those applications in court. Kamath said those discussions were revived following Hochul’s recent executive order, but they reached the same conclusion: The attorney general’s office will not represent troopers in the civil cases.
After this story was published online Wednesday afternoon, a spokeswoman for state Attorney General Letitia James said their office is “re-examining this issue and considering using every possible tool to ensure red flag laws are executed and firearms kept away from dangerous individuals.” Hochul’s office acknowledged that since New York’s law took effect in 2019, “the lack of uniform legal representation for petitioners has contributed to the dismissal of some ERPO applications, and recognizing that, we have been working with the attorney general’s office, district attorneys, and the Office of Court Administration to improve these proceedings and ensure adequate support for State Police.”
“Governor Hochul continues to take action to strengthen the state’s red flag law and increase awareness and education efforts to prevent gun violence and keep New Yorkers safe,” said Hazel Crampton-hays, a spokeswoman for the governor.
Although district attorneys’ offices are also allowed to file petitions for these orders, they are not mandated by law to represent police officers or other petitioners in the cases. Still, law enforcement sources said that some district attorneys’ office are representing police in the civil proceedings.
Law enforcement officials interviewed for this story said it’s possible that county attorneys’ offices could be responsible for representing petitioners in the the civil proceedings, but many of those offices do not have the resources to handle the increased caseloads.
Timothy Dymond, a State Police senior investigator and president of the New York State Police Investigators Association, said his members are “struggling with the workload and worrying about these things going to court and (if dismissed by a judge) ... the guns going back to the respondent, and then the respondent is going to go out and commit some horrible tragedy.”
Dymond said the paperwork for an extreme risk protection order is time-consuming, and the process unfolds over several days. If a trooper responds to a domestic incident and determines a member of a household has access to firearms and poses a danger, they can request a judge issue a temporary order that enables police to seize those weapons. But a formal hearing for seizing the firearms for up to a year must take place generally within three days, and the respondents often appear at those proceedings with private attorneys.
“The investigators union — we are big fans of the ‘Red Flag Law,’” Dymond said. “The problem is the guidance that we’re given is pretty vague. And it’s almost like all-encompassing now . ... It’s becoming a workload and a burden that we’re struggling to keep up with.”
The most alarming concern is that judges are dismissing cases in which a potentially dangerous person is able to retake possession of their firearms because of a lack of legal representation for the petitioner, he added.
In 2021, the State Police filed applications for 36 temporary or final extreme risk protection orders between Jan. 1 and June 22. This year, the number of those applications during that same time period has soared to 146 — including 85 over the past two months.
The governor’s office noted that their records indicate State
Police have received temporary approval for roughly 91 percent of the extreme risk protection orders filed since the governor signed the executive order last month. However, police sources said judges routinely approve the temporary orders; it is during the formal hearings seeking the final orders where they said troopers are not receiving legal representation.
In her executive order, Hochul cited data from the Center for Strategic and International Studies that indicate the number of domestic extremist attacks or plots had more than tripled in the past decade. Questions also were raised about whether police should have sought an extreme risk protection order for the Buffalo shooting suspect, Payton Gendron, who a year before the incident had made online threats about murder and suicide.
“Ten people were killed with a semiautomatic rifle equipped with a high-capacity magazine in an act of white supremacist domestic terrorism in a shooting on May 14 ... at a Buffalo, N.Y., supermarket, demonstrating the need for increased vigilance to prevent, whenever possible, similar tragedies from occurring in the future,” the governor’s recent executive order states.
Sources close to the matter said State Police engaged in discussions with the governor’s office about the need for increased legal resources to handle the recent increase in applications for extreme risk protection orders. But those talks did not result in the attorney general’s office providing assistance to the State Police or any decision to add attorneys to the Division to State Police to help litigate the cases.
Hochul, who is facing a Democratic primary next week and seeking reelection her first full term as governor in November, has campaigned heavily on what she describes as a nation-leading effort to strengthen New York’s gun safety laws.
The push for stricter gun laws is not a new effort in New York. In 2019, former Gov. Andrew M. Cuomo and 11 other Democratic governors sent a letter to thenpresident Donald J. Trump and then-senate Majority Leader Mitch Mcconnell urging the Republican leaders to pursue stricter federal gun-control measures.
New York’s Red Flag Law went into effect that same month, aligning it with similar laws in nearly two dozen other states and the District of Columbia. Many of those states enacted their versions in the wake of the 2018 mass shooting at a school in Parkland, Fla., that left 17 dead.
Thomas Mungeer, president of the New York State Troopers Police Benevolent Association, said the governor’s recent executive order was “a knee-jerk reaction” that created “logistical and administrative problems that will take time to work through.”
“Most of the burden rests on the men and women of the New York State Police, who proudly wear their gray uniforms and protect the citizens of New York state every day,” Mungeer added. “It is our understanding that with the increased workload, the necessary resources were not allocated to the New York State Police.”