In December 2022, the New York State Division of Criminal Justice Services issued its Extreme Risk Protection Order Model Policy, providing guidance to county, town, city and village law enforcement agencies on New York’s Extreme Risk Protection Order (ERPO) statute. The Model Policy, prepared with input from several state agencies, state-wide associations and the New York City Police Department, should be, and is, a welcome framework for local governments and law enforcement personnel struggling to develop a standard procedure to obtain an ERPO.

By way of background, New York initially enacted its ERPO law in August 2019, which is codified as Article 63-A of the CPLR. The ERPO law has been amended twice, by Executive Order in May 2022 and by legislation in June 2022. Essentially, the ERPO law allows certain enumerated individuals to file a petition in New York State Supreme Court to seize and then prevent an individual who poses a threat to themselves or others from possessing or purchasing firearms. The ERPO petition is a civil proceeding that does not carry any criminal penalties, despite the fact those authorized to commence the proceeding include law enforcement personnel.

There is little doubt the ERPO law serves a critical purpose in the prevention of firearm-related violence and deaths. However, the lack of guidance from the legislature as to how the ERPO law should function left a significant gap to take theory to practice. The Model Policy provides an easy-to-understand summary of the ERPO law and the important factors that should be considered when evaluating whether to file a petition for an ERPO and the requirements to file the petition.

Perhaps most important is the Model Policy’s recommendation a law enforcement agency designate an individual to serve as the ERPO Coordinator. As defined by the Model Policy, this individual will be given the responsibility to develop and manage the agency’s ERPO policy/procedures, and to train members of law enforcement in the same. The Model Policy does not provide any guidance as to the training or qualifications the ERPO Coordinator should possess, but, given the description of the ERPO Coordinator’s function, it is a safe assumption the ERPO Coordinator should be at least a high-ranking law enforcement member or a municipality’s attorney.

Perhaps one of the most problematic aspects of the ERPO law occurred when law enforcement personnel were called into court to “prosecute” an ERPO petition without any legal training or, more important, the legal right to practice law. There are several reported decisions where the courts refused to allow law enforcement personnel who filed a petition for an ERPO from presenting evidence in court. Though it does not provide a mandate the petitioner seek counsel, the Model Policy does suggest the ERPO petitioner “consult with relevant city, county, or other assigned counsel to ensure necessary counsel representation is obtained” before filing the petition. Further, the Model Policy suggests counsel for the petitioner for the hearing for the final ERPO“ should be strongly considered…to ensure the petitioner is not placed at a significant disadvantage.” In particular, the Model Policy notes the hearing may require presenting testimony, legal arguments and cross-examination of witnesses that law enforcement personnel are not trained to perform. The one concern raised by these suggestions is the Model Policy does not seem to have included input from non-law enforcement agencies or associations, despite the fact the civil legal departments may be the ones called upon to provide representation for law enforcement
in these proceedings.

Harris Beach attorneys are closely following developments on this issue. If you have questions about this subject or related matters, please reach out to Jared A. Kasschau at (516) 880-8106 and jkasschau@harrisbeach.com; Bradley M. Wanner at (212) 912-3653 and bwanner@harrisbeach.com; Adam M. Moss at (516) 880-8111 and amoss@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.