Officials work to fix counsel issue
James sends attorney to “extreme risk” hearing to represent police investigator
The state attorney general’s office reversed course last week and sent an attorney to a hearing to represent a State Police investigator who had filed an application seeking an “extreme risk protection order” that would enable the court-ordered seizure of a Saratoga County man’s firearms.
But the union representing State Police investigators on Monday said sworn members of the law enforcement agency are continuing to appear without legal counsel as petitioners in judicial hearings required to seize someone weapons — many of the cases involving someone with mental health issues or involved in a domestic dispute. The governor’s office and state attorney general’s office said they are working to develop a permanent solution.
A spokeswoman for state Attorney General Letitia James confirmed their office handled one case last week and “are working with the governor’s office on addressing this in the long term.”
The Times Union reported last week that the number of protection orders being pursued by State Police to seize firearms had surged following an executive order issued in May by Gov. Kathy Hochul mandating that troopers file the court applications any time they encounter a person they determine is “likely” to harm themselves or others.
But earlier this month, an assistant attorney general in charge of the regional office in Poughkeepsie informed a state Supreme Court justice in Orange County that their office would not represent troopers in the civil cases. The union representing State Police investigators said the fallout of that decision is that judges were in many instances dismissing the final protection orders that could enable police to seize someone’s weapons for up to a year.
The attorney general’s letter was addressed to state Supreme Court Justice Craig Stephen Brown in Orange County, who had notified State Police and the attorney general’s office that State Police members were “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 examinations, etc.).”
The governor’s office last week also said they “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.”
The civil cases almost always involve firearms, and the question of whether a person who poses a potential public safety threat should have those weapons seized by police through a court order, temporarily, for up to a year. The governor’s executive order was issued last month following a mass shooting in Buffalo in which 10 Black people were killed by an 18-year-old white man in what police said was a racially motivated attack.
But many of the “red-flag law” cases were being dismissed by judges because the troopers and investigators often have been appearing at the hearings without attorneys and in proceedings in which they have been instructed by the State Police to not make legal arguments.
Timothy Dymond, a State Police senior investigator and president of the New York State Police Investigators Association, said Monday that his union is cautiously optimistic that state officials will establish a policy for making sure law enforcement petitioners in the protective order cases are represented by legal counsel.
“We still have people going to court on these without an attorney. I had a guy reach out from Buffalo area and said, ‘How do I get ahold of the attorney general’s office?” Dymond said. “I think we’ve made a little progress, but they still haven’t come up with a solution and we still are in a very (bad) situation.”
Dymond said that even if 10 percent of the cases were being dismissed, “that is pretty scary.”
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, data showing how many permanent orders were being dismissed was not immediately provided by the governor’s office.
New York’s red-flag law went into effect in 2019, 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.