Supreme Court, Monroe County, December 22, 2022

Daniel Strollo, Rochester, for respondent.

G.W., petitioner pro se.

On August 30, 2022, petitioner G.W. filed with this court an application for a temporary extreme risk protection order (hereinafter TERPO). In his application G.W. alleged that his estranged girlfriend, C.N., was a threat to herself, the petitioner, or another person. In support of his TERPO request, G.W. submitted various statements in which he alleges Ms. N. indicated that she would harm herself by means of a gun or firearm, should she be able to gain access to same. However, the allegations submitted to this court (and accompanying the TERPO request) were statements allegedly made by Ms. N. from December 5, 2020, up through and including February 27, 2021. Regardless, Mr. W.'s petition alleged Ms. N.'s acts occurred less than six months ago.^[FN1]

In an abundance of caution, on August 30, 2022, this court issued a TERPO order which prohibited Ms. N. from purchasing or possessing any firearms, rifles or shotguns, and ordered her to surrender any within her possession. The matter was then adjourned to September 2, 2022, for purposes of a hearing on the merits. Additionally, Ms. N. held a pistol permit that had previously been issued by a Monroe County Court judge. On September 7, 2022, Monroe County Court Judge Julie Hahn suspended Ms. N.'s pistol permit based upon the allegations in the TERPO petition and the issuance of the TERPO order.

Thereafter, Mr. W. submitted a supplemental affidavit (notarized Oct. 25, 2022) in support of his request for a final extreme risk protection order (hereinafter ERPO). Mr. W.'s affidavit alleged that Ms. N. was attempting to access Mr. W.'s safe at the house that was presently occupied by Ms. N. Further, Mr. W. alleged that this safe contained "weapons" or guns {**78 Misc 3d at 291}that could be used by Ms. N. to hurt herself, petitioner or others.

Prior to a hearing being held on the issuance of an ERPO, Ms. N. retained Daniel Strollo, Esq., as her counsel for purposes of defending her rights by attempting to quash the pending TERPO and prevent the issuance of an ERPO. Attorney Strollo appeared before this court and indicated that he was challenging CPLR 6342's constitutionality. As required by law, Strollo served the New York State Attorney General, placing them on notice of his intentions with this motion. Attorney Strollo's motion was returnable on November 7, 2022. Prior to the return date, the Attorney General sent a correspondence to this court wherein Mr. Ester Murdukhayeva (Deputy Solicitor General) acknowledged that Attorney Strollo had informed his office of his intentions to challenge CPLR 6342's constitutionality, but that the Attorney General's office declined to intervene pursuant to Executive Law § 71 or CPLR 1012 (b).

On November 7, 2022, Attorney Strollo moved on behalf of Ms. N. before this court to declare CPLR 6342 unconstitutional (as he previously disclosed to the Attorney General) and tasked this court with reviewing the propriety of said statute.

The question presented is whether CPLR article 63-A sufficiently protects a New York citizen's due process rights when, as here, the state denies a fundamental right, to wit: by infringing on that citizen's right to keep and bear arms under the Second Amendment of the United States Constitution.

This court holds that CPLR article 63-A does not sufficiently protect a citizen's rights and therefore is unconstitutional.

Prior to addressing the constitutionality of CPLR article 63-A (Extreme Risk Protection Orders), the court has looked for guidance from the Supreme Court's recent decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111 [2022]). In Bruen, the Court recognized that "the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense." (Bruen, 597 US at —, 142 S Ct at 2125.) Further, in following the lead of District of Columbia v Heller (554 US 570 [2008]), the Bruen Court reiterated that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct[, and t]o justify [a firearm regulation] . . . the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." (Bruen, 597 US at —, 142 S Ct at 2126.)

{**78 Misc 3d at 292}Also, it is of import for the present discussion to review the United States Supreme Court's interpretation of the value of the Second Amendment. In McDonald v Chicago[*2] (561 US 742, 780 [2010]), the United States Supreme Court declared that the Second Amendment is not a "second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." Most recently, in New York State Rifle & Pistol Assn., Inc. v Bruen, the Supreme Court reaffirmed McDonald. Here, the Court stressed that "[t]he constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.' " (Bruen, 597 US at —, 142 S Ct at 2156, quoting McDonald at 780.)

New York's extreme risk protection statute (CPLR art 63-A) became effective on August 24, 2019, and was thereafter amended on July 6, 2022. CPLR 6341 ("Application for an extreme risk protection order") outlines who may and must file for a TERPO, and the basis for such order:

"In accordance with this article, a petitioner may file an application, which shall be sworn, and accompanying supporting documentation, setting forth the facts and circumstances justifying the issuance of an extreme risk protection order. Provided, however, that a petitioner who is a police officer or district attorney shall file such application upon the receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two{**78 Misc 3d at 293} of subdivision (a) of section 9.39 of the mental hygiene law, unless such petitioner determines that there is no probable cause for such filing." (Emphasis added.)^[FN2]

Prior to July 6, 2022, police officers and district attorneys were permitted (i.e, within their discretion) to file for a TERPO. However, after July 6, 2022, the aforementioned public safety officers were now mandated ("shall") to file for a TERPO "upon the receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law." (CPLR 6341.)^[FN3]

"[L]ikely to engage in conduct that would result in serious harm to himself, herself or others" has its own special meaning in our law. CPLR article 63-A directs a petitioner to Mental Hygiene Law § 9.39 for the definition of "likelihood to result in serious harm," and specifically to paragraphs (1) or (2) of subdivision (a) of section 9.39 of the Mental Hygiene Law. In relevant part, Mental Hygiene Law § 9.39 provides:

" 'Likelihood to result in serious harm' as used in this article shall mean:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other [*3]violent behavior by which others are placed in reasonable fear of serious physical harm."

Thus, CPLR article 63-A and the Mental Hygiene Law operate under the same definition of "likelihood to result in serious harm." Why should the law not treat similarly situated people the same, with the same constitutional guarantees and protections, if both are deemed to present as having a "likelihood to result in serious harm."

The New York Legislature drafted Mental Hygiene Law § 9.39 to provide a necessary procedure to involuntarily hospitalize a patient for care and treatment. Mental Hygiene Law § 9.39 demands that a determination that a patient presents a "likelihood to result in serious harm" is to be made by a staff physician. Further, if the same patient is to be held in a facility for more than 48 hours, a second physician must confirm the first physician's findings (i.e., that the patient presents a "likelihood to result in serious harm"). (See Mental Hygiene Law § 9.39.)

Turning back to article 63-A, CPLR 6340 (2) lists the possible petitioners who may (or are required to) seek a TERPO/ERPO. The majority of petitioners in article 63-A cases,{**78 Misc 3d at 294} however, are not physicians (who presumably possess a psychological or medical background to allow them to make a determination that a person possesses a condition "likely to result in serious harm"). Rather, the great majority of article 63-A referrals would come from police officers, district attorneys, school administrators (or their designees), family and household members, and even mental health professionals (not a physician or psychiatrist) who are not licensed to make a medical determination that a respondent presents a mental condition "likely to result in serious harm" under Mental Hygiene Law § 9.39.

Since Mental Hygiene Law § 9.39 and CPLR article 63-A both employ the same definition for "likelihood to result in serious harm," why should respondents under the Mental Hygiene Law be granted greater safeguards (such as having their case be reviewed by a physician with the educational background and experience to make such a determination) than matters pursuant to CPLR article 63-A in which "laypeople" make such a determination?^[FN4] These are similarly situated people (by legislative definition) but as such are not to be treated equally, nor afforded the same constitutional guarantees that protect all citizens of New York State.

In contrast to article 63-A, one can also look to Mental Hygiene Law § 9.39, where the legislature addressed patients who are brought to the hospital for examination and care, and set forth requirements whereby a petitioner could keep that patient in the hospital against their wishes. The legislature imposed safeguards (in the mental health context) to protect a New York citizen from losing his or her fundamental Fourth Amendment right to be free from an unlawful search and seizure. Clearly, Mental Hygiene Law § 9.39 demands an expert opinion from a doctor and, then, beyond 48 hours, a second opinion from a physician confirming that the patient presents a condition "likely to result in serious harm" before that patient can be held against their will. An involuntary civil commitment has been recognized as a "massive curtailment of liberty" (see Vitek v Jones, 445 US 480, 491 [1980] [internal quotation marks omitted]), which cannot permissibly be adjudicated{**78 Misc 3d at 295} without due process of law. (Id. at 492; see also O'Connor v Donaldson, 422 US 563, 580 [1975, Burger, Ch. J., concurring]; Project Release v Prevost, 722 F2d 960, 971 [2d Cir 1983].) This, however, is not the standard employed in CPLR article 63-A matters.

Again, CPLR 6341 would demand adherence to Mental Hygiene Law § 9.39's definition of "likelihood to result in serious harm" and its safeguards insofar as the statutes recite the same definition. Yet, CPLR article 63-A permits (and in some cases demands) non-physicians to make a medical determination for which, due to lack of education, experience, or expertise, they should not be authorized or capable of making. Of great importance to this court is a recognition that an ERPO extensively affects a person's Second Amendment right to bear arms. Second Amendment rights are no less fundamental than, for example, Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection. (McDonald v Chicago at 780.)

As such, this court holds that, under CPLR article 63-A, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees, such as a physician's determination that a respondent presents a condition "likely to result in serious harm," before a petitioner files for a TERPO or ERPO. Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in article 63-A) deprives a citizen of a fundamental right without due process of law.

One may posit the position, arguendo, that the Mental Hygiene Law does allow non-physicians to determine whether a respondent poses a condition "likely to result in serious harm." There, Mental Hygiene Law § 9.41 states that peace officers and police officers

"may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others. Such officer may direct the removal of such person or remove him or her to any hospital specified in subdivision (a) of section 9.39 of this article, or any comprehensive psychiatric emergency program specified in subdivision (a) of section 9.40 of this article, or pending his or her examination or admission to any such{**78 Misc 3d at 296} hospital or program, temporarily detain any such person in another safe and comfortable place, in which event, such officer shall immediately notify the director of community services or, if there be none, the health officer of the city or county of such action." (Mental Hygiene Law § 9.41 [a].)

However, the aforementioned imposes only a brief detention, solely for the purposes of bringing the patient to an appropriate medical facility where an assessment may be completed by a mental health professional. Police officers are merely the conduit by which a person, who the officer believes possesses a condition "likely to result in serious harm" to himself or others, is simply transported by the officer to a medical facility. Thereafter, the person is transferred to a facility and to the care of a professional to make a proper psychological or medical determination [*4]to corroborate, or disavow, the officer's initial opinion.^[FN5]

Mental Hygiene Law § 9.41 is, in fact, titled "Emergency assessment for immediate observation, care, and treatment" (emphasis added). The seizure, and by extension the deprivation of the fundamental right to freedom, at the hands of police or peace officers, is extremely limited to just that amount of time necessary for the police to bring a patient before a competent physician. Contrast that to CPLR article 63-A, where an officer, or any civilian petitioner's nonprofessional belief is that a respondent presents a condition "likely to result in serious harm," with the consequence being the denial of a respondent's Second Amendment rights for a period of at least three days and up to six days. (CPLR 6342 [4] [d] [ii].) This circumvents the constitutional due process protections guaranteed to every citizen of this state of the United States.

Another section of CPLR article 63-A which troubles this court concerns the possibility that, based upon the opinion of a{**78 Misc 3d at 297} non-physician, a court may be permitted to issue a search warrant to confiscate a respondent's guns, but which also may result in certain circumstances of the confiscation of guns owned or possessed by non-respondents. (See CPLR 6342 [8].) Under our law "possess" has its own special meaning. It does not simply mean "to own." It holds an expanded meaning. "[A] person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found . . . sufficient to give him or her the ability to use or dispose of the property." (People v Perulli, 64 Misc 3d 1232[A], 2019 NY Slip Op 51391[U], *5 n 5 [Sullivan County Ct 2019], citing People v Manini, 79 NY2d 561, 573 [1992].) In situations where many people live in the same residence (and a respondent is simply one of the residents), a court could order the search and seizure of all guns in possession of the respondent, including guns owned by the other residents on the theory that those guns are in the respondent's "constructive possession." In this instance CPLR article 63-A offers no due process to the non-respondent residents prior to the guns being taken. As a result, the non-respondent residents have become the victims of a search and seizure, conducted against them without any probable cause whatsoever, and in complete violation of the non-respondents' Second and Fourth Amendment rights.

The non-respondents are further burdened by CPLR 6344 (2), which states:

"If the location to be searched during the execution of a temporary extreme risk protection order or extreme risk protection order is jointly occupied by two or more parties, and a firearm, rifle or shotgun located during the execution of such order is owned by a person other than the respondent, the court shall, upon a written finding that there is no legal impediment to the person other than the respondent's possession of such firearm, rifle or [*5]shotgun, order the return of such firearm, rifle or shotgun to such lawful owner and inform such person of their obligation to safely store their firearm, rifle, or shotgun in accordance with section 265.45 of the penal law."

In this instance the non-respondent must then take affirmative steps in order to regain their firearms, and thereby reestablish their fundamental Second Amendment rights. As detailed above, the Second Amendment establishes that the{**78 Misc 3d at 298} exercise of a fundamental right "shall not be infringed." However, CPLR 6344 (2) does exactly that.

Significantly, Bruen speaks to history and permits courts to analogize when analyzing and determining the constitutionality of a present-day law, by placing that law in its historical context. In mental illness cases, which involve the deprivation of liberty, New York has a long history of providing a base level of procedural due process to a citizen when the State undertakes to deprive that citizen of a fundamental right. Extreme risk protection orders (ERPOs) undertake an evaluation of a person's mental health to determine whether depriving that person's fundamental right to bear arms should be suspended and constitute the means to ensure the safety of himself, herself or others. However, history shows that an argument can be advanced that procedural due process is lacking regarding the procedure for granting a TERPO (and the final ERPO hearing) itself, as the necessary constitutional safeguards or guarantees to protect a person are absent from the law. (CPLR art 63-A.)

An example where due process guarantees are employed on mental health issues can be seen in Rivers hearings. In Rivers v Katz (67 NY2d 485 [1986]), the Court of Appeals addressed the ability of the State to force medications upon a hospital patient refusing those medications. The Court held that a judicial determination was required to determine if the patient had the capacity to make a reasoned decision with respect to proposed treatment before the State could administer medications over the patient's objection. At the judicial determination, "[t]he State would bear the burden of demonstrating by clear and convincing evidence the patient's incapacity to make a treatment decision. [A]fter duly considering the State's proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure," the court shall determine a patient's capability (or incapability) to make his or her own treatment decisions. (Rivers at 497.) In a Rivers setting, the State always provides proof from a physician at the hearing. Additionally, Rivers also held that due process demanded that the respondent be entitled to representation and, if unable to afford, counsel would be assigned representation from Mental Hygiene Legal Service to protect the respondent's rights.

To further illustrate, procedural guarantees for the mentally ill are prominently included in the process for involuntary{**78 Misc 3d at 299} admissions of a person to a hospital for treatment under Mental Hygiene Law § 9.31. Retention hearings are held under Mental Hygiene Law § 9.33, and require that Supreme Court hold a hearing "in like manner as is provided for hearings in section 9.31." (Mental Hygiene Law § 9.33 [c].) At the hearing, the court shall hear testimony and examine the person deemed to be mentally ill. The hospital must "demonstrate[ ], by clear and convincing evidence, that the patient is mentally ill and in need of continued, supervised care and treatment, and that the patient poses a substantial threat of physical harm to himself and/or others." (Matter of Ford v Daniel R., 215 AD2d 294, 295 [1995].) The evidence in these hearings always includes the testimony of at least one physician. [*6]The hospital appears as a party, and is always represented by counsel. If the matter involves a state hospital, the Attorney General appears on behalf of the State. A private hospital is represented by their private attorneys. Similar to the above, respondents in these matters are represented by Mental Hygiene Legal Service. (See Mental Hygiene Law § 9.31 [c].)

Again, these protections of due process and representation by counsel are not present nor guaranteed under CPLR article 63-A proceedings.

Should the law not demand the same rights for everyone similarly situated?

"Article 10" proceedings are another example where New York imposes substantive and procedural due process rights. In article 10 of the Mental Hygiene Law (titled "Sex Offenders Requiring Civil Commitment or Supervision"), both civil confinement and supervision implicate an individual's right to be free from unlawful government seizure. In article 10 proceedings, the State must file a petition, in an appropriate jurisdiction, alleging that the respondent is a sex offender requiring civil management or confinement. Further, the court must then appoint respondent an attorney if he/she cannot afford one, so that the respondent is afforded the necessary representation to protect him/her during the proceedings. Additionally, the State and the respondent may have the services of a psychiatric examiner (at the State's expense) to assist him/her with defending the protections of their individual rights. Moreover, the respondent is entitled to a probable cause hearing within 30 days from the time the Attorney General files a petition. Finally, the respondent is entitled to a jury trial upon the issues present before the court prior to the denial of any{**78 Misc 3d at 300} liberties. (See Mental Hygiene Law art 10.) At the trial, the State is represented by the Attorney General and respondent, in like fashion, by his own counsel.

Similar to the above examples, these protections of due process, expert testimony and representation by counsel are neither present, nor guaranteed under CPLR article 63-A proceedings.

Where a mental health "illness" forms the basis for the denial of a fundamental right in this state, New York has historically employed substantive and procedural due process rights to respondents before the State can take those fundamental rights away. The examples cited above clearly set forth the type and extent of due process afforded citizens when the State denies that citizen a fundamental right (e.g., their freedom of movement) due to mental illness. First, in these historical instances, any deprivation of a fundamental right must be based upon a mental health professional's expert opinion as to the respondent's mental health condition. Second, every respondent is entitled to representation and, if the respondent can not afford an attorney, the State provides an attorney at state expense. Third, petitioners are always represented by counsel, thereby avoiding the practice of law by non-lawyers.

Why should a respondent subject to a CPLR article 63-A proceeding not be afforded the same constitutional protections as the aforementioned cases, when all are based upon allegations of mental illness? This court believes that, in its position as parens patriae, a potentially mentally ill citizen should enjoy the same rights and privileges as any person of this state. However, this is not the standard as employed with TERPO/ERPO determinations, as they deprive a citizen of New York of their constitutional rights.

This court is not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, CPLR article 63-A's goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be [*7]condoned by this court.

While some may advocate that "the ends justify the means" in support of article 63-A, where those means violate a fundamental right under our Bill of Rights to achieve their ends, then the law, on its face, cannot stand.{**78 Misc 3d at 301}

Therefore, the "Temporary Extreme Risk Protection Order" (TERPO) and "Extreme Risk Protection Order" (ERPO) are deemed to be unconstitutional by this court as CPLR article 63-A is presently drafted. It can not be stated clearly enough that the Second Amendment is not a second-class right, nor should it ever be treated as such.

Accordingly, it it is hereby ordered that article 63-A of the Civil Practice Law and Rules is deemed unconstitutional; and it is further ordered that the above-titled petition is hereby dismissed, in its entirety, and any temporary order or final order issued by this court pursuant to the instant action is, hereby, vacated.