Supreme Court, Warren County, September 18, 2023

Martin J. McGuinness, Esq. PLLC, Saratoga Springs (Martin J. McGuinness of counsel), for respondent.^[FN1]

Girvin & Ferlazzo, P.C., Albany (Patrick J. Fitzgerald and Daniel S. L. Rubin of counsel), for petitioner.

Motion to dismiss the petition on the ground that CPLR article 63-A is void as unconstitutionally vague, as applied and on its face, and violates the Second Amendment of the United States Constitution, as applicable to this state via the Fourteenth Amendment of the United States Constitution, § 1.

Petitioner, a school district, brought the instant petition seeking an extreme risk protection order (ERPO) prohibiting respondent from purchasing or possessing a firearm, rifle or shotgun (hereinafter, collectively, guns) pursuant to CPLR{**81 Misc 3d at 357} article 63-A.^[FN2] The petition alleges that respondent, a student within the district who was 15 years old when the petition was brought, made threats to kill a teacher and attacked a fellow student. More particularly, it is alleged that, in response to the teacher's urging respondent to return to class, which involved the teacher placing his hand on respondent's shoulder, respondent said, "I'll f***ing kill you. Touch me again. I'll f***ing kill you. Touch me again and I will f*** you up. Touch me again and see what happens. I'll put you down bro. F*** off." This resulted in respondent's suspension from school for five days. It is reported that, during this suspension, respondent struck his mother. It is [*2]further alleged that, approximately a week after respondent's return to school, he approached another student in the cafeteria and threatened to "punch him out." Petitioner's staff intervened and escorted respondent out of the cafeteria and to an office, during which time respondent continued to threaten the student. In the office, respondent met with petitioner's school resource officer (SRO). That meeting concluded when respondent allegedly calmly stood up and walked out, went directly to the gymnasium where an assembly was taking place, went up the bleachers to where the student whom he had been threatening was seated, and struck him repeatedly about the head and upper body. The SRO is alleged to have been knocked backward down the bleachers while trying to intervene, sustaining injuries.

Petitioner thereafter brought the instant proceeding seeking an extreme risk protection order (ERPO), and a temporary extreme risk protection order (TERPO) during the pendency of the proceeding (see CPLR 6341, 6342, 6343). The court granted the TERPO, the effect of which was to preclude respondent from possessing or acquiring guns during its pendency (see CPLR 6340 [1]; 6342 [4] [d] [i]). The TERPO did not include any provision for the search of respondent's residence, vehicle or person for guns. The TERPO was successively extended, on consent, initially to allow the engagement of assigned counsel for respondent and thereafter to permit him to make the instant motion. Respondent turned 16 years old during the pendency of the TERPO, which remains in effect. Respondent's residence—which he shares with his 24-year-old brother, who is a veteran of the armed forces and respondent's immediate caregiver—was never searched and no guns were voluntarily surrendered to law enforcement upon their request for same{**81 Misc 3d at 358} pursuant to CPLR 6342 (8).^[FN3] Respondent and the brother both aver that neither of them owns any guns, though the brother is trained to use them and states that he "would like to have one in the future."

Respondent now moves to dismiss the petition on the aforesaid grounds. Specifically, he argues that the decisional standard set forth in the ERPO statutory scheme failed to provide him with fair and accurate notice of its ambit and provides no clear standard for its application; that these infirmities would prevent its constitutional application in all cases; and that the regulation of gun possession that it presents is inconsistent with our "Nation's historical tradition of firearm regulation" (New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US 1, 17 [2022]). He asserts these claims on behalf of himself and also claims third-party standing to raise them on behalf of his brother. Petitioner counters the motion in each of these respects, including challenging respondent's standing to present his constitutional claims on his own behalf.

Upon a review of the affirmation of Martin J. McGuinness, Esq., dated February 28, 2023, with exhibits, which include an affidavit of respondent's brother;^[FN4] respondent's memorandum of law, dated February 28, 2023; the affirmation of Patrick J. Fitzgerald, Esq., dated April 14, 2023, with exhibits; petitioner's memorandum of law, dated April 14, 2023; and respondent's reply memorandum of law, dated April 28, 2023; oral argument on the motion having been held on June 1, 2023; and the court having duly deliberated upon all the foregoing, decision is hereby rendered as follows.[*3]

[1] The court first concludes that respondent has standing to challenge the application of CPLR article 63-A to him and assert that it is facially invalid. To establish standing, a petitioner must show "(1) an 'injury in fact,' (2) a sufficient 'causal connection between the injury and the conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a favorable decision' " (Susan B. Anthony List v Driehaus, 573 US 149, 157-158 [2014], quoting Lujan v Defenders of Wildlife, 504 US 555, 560-561 [1992]). Respondent has carried this burden by demonstrating that his right to possess a gun has been{**81 Misc 3d at 359} abridged by the issuance of the TERPO pursuant to the challenged statutory scheme, and it is clear that this deprivation would be redressed by a judicial declaration that that scheme was unconstitutionally applied to him, which would carry with it the dismissal of the petition and the TERPO that was founded upon it.^[FN5]

Petitioner argues that respondent fails to show an injury-in-fact because he has no present intention to exercise his right to possess a gun. The court rejects this position. The deprivation of respondent's substantive right to possess a gun constitutes a concrete injury notwithstanding that he has no immediate intention of obtaining one (see Driehaus, 573 US at 158-159; Fishman v Daines, 247 F Supp 3d 238, 246 [ED NY 2017]). Absent the TERPO, respondent would have the present right to take up certain types of guns for whatever lawful purpose he may conceive. Upon the TERPO's issuance, he no longer had this option. This is an actual, concrete injury; not one that can be fairly considered " 'conjectural' or 'hypothetical' " (Baur v Veneman, 352 F3d 625, 632 [2d Cir 2003], quoting Lujan, 504 US at 560). Further, this deprivation would continue upon the issuance of an ERPO, should one issue after a hearing, and respondent has a right to contest the statute that presents the vehicle for that continued deprivation (see Driehaus, 573 US at 158-159). He should not be required to seek to obtain a gun in violation of the TERPO or ERPO and suffer the consequences of that violation as a prerequisite to challenging the deprivation of his rights that the TERPO already presents and the ERPO would present (see id. at 158).

Respondent has also demonstrated his standing by showing that he faces the imminent threat of the search of his home pursuant to an ERPO. While the court does agree that the issuance of the TERPO does not present this deprivation in this case, no search having been authorized therein or conducted{**81 Misc 3d at 360} pursuant thereto, the threat of such search being authorized in and conducted pursuant to an ERPO remains and is "sufficiently imminent" to constitute a cognizable injury for standing purposes (id. at 158-159). The argument that the possibility of a search is too remote because the court may not order one misses the mark. There remains a " 'substantial risk' that the harm will occur" (id. at 158 [some internal quotation marks omitted], quoting Clapper v Amnesty Int'l USA, 568 US 398, 414 n 5 [2013]; accord Monsanto Co. v Geertson Seed Farms, 561 US 139, 153 [2010]; see Clapper, 568 US at 404).^[FN6]

The court's holding in this regard is guided by well-established precedent in criminal law. It is axiomatic that respondent would have standing to challenge the propriety of a search of his home, or the constitutionality of a law that authorizes it, after the search was conducted, either by seeking suppression of seized evidence in a criminal action or by bringing a collateral action to vindicate an unconstitutional infringement of his rights (see O'Connor v Ortega, 480 US 709, 716 [1987]; Galgano v County of Putnam, 2020 WL 3618512, 2020 US Dist LEXIS 116682 [SD NY, July 2, 2020, No. 16-CV-3572, Karas, J.]; see e.g. 42 USC § 1983). In that context, however, such adjudications must, in almost all cases, occur after the fact of the deprivation of the right because search warrants are generally issued ex parte, and warrantless searches occur amidst ongoing police investigations without any judicial involvement in advance of the search at all. Here, the propriety of a search order and the constitutionality of the ERPO statute that authorizes it are susceptible of adjudication in advance of the infringement, and there is no reason why respondent, being subject to this imminent threat, should be made to wait in silence to see whether petitioner seeks a search order at a hearing or the court orders one after it (see Driehaus, 573 US at 158). Indeed, to adopt petitioner's argument would be to{**81 Misc 3d at 361} hold that respondent's standing to challenge whether a search order should issue in an ERPO arises only when the court issues such an order after a hearing, at which point his opportunity to raise his constitutional claims against it will have come and gone.

The brother would also be entitled to standing under this rationale regarding the threat of a search order in an ERPO, if he were seeking it on his own behalf. But to say that a person would have standing to raise a claim in his or her own right is not to say that another person could do it on his or her behalf. Rather, procedural avenues exist for the brother to take up this claim in his own right, if he were of a mind to. Faced with a sufficiently imminent substantial risk that his privacy rights would be infringed upon by a search order in an ERPO, the brother is free to intervene in this proceeding and assert his rights, or to commence a collateral action to declare the ERPO statutory scheme unconstitutional (see CPLR 1012 [a] [2]; 3001; United States v Raines, 362 US 17, 23 [1960]). There is, thus, no ground for departure from the general rule that a party " 'has standing only to assert claims on behalf of himself or herself . . . [and] . . . does not, as a general rule, have standing to assert claims on behalf of another,' " and the court concludes that respondent does not have standing to raise the claims presented on his brother's behalf (Matter of People v Christensen, 77 AD3d 174, 185 [2d Dept 2010], quoting Caprer v [*4]Nussbaum, 36 AD3d 176, 182 [2d Dept 2006]; see Raines, 362 US at 23).^[FN7]

Turning to respondent's vagueness challenges, "[i]t is axiomatic that a proscriptive law must provide people with reasonable notice of the conduct it prohibits" (People v Stuart,{**81 Misc 3d at 362} 100 NY2d 412, 418 [2003]). "An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute" (People v Bright, 71 NY2d 376, 382 [1988]). A court addressing a claim that a proscriptive statute is void for vagueness must determine "whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "whether the enactment provides officials with clear standards for [application]" (People v Stuart, 100 NY2d at 420 [internal quotation marks and citations omitted]). Since respondent here challenges the constitutionality of the ERPO statutory scheme both as applied to him and as facially invalid, the court must first consider whether the statute is unconstitutional as applied to his conduct at issue in the proceeding (see id. at 422). "If it is not and the statute provides [respondent] with adequate notice and [petitioner] with clear criteria, that is the end of the matter" (id.). Otherwise, the court must proceed to consider whether the infirmity that affects the statute's application to respondent renders it "impermissibly vague in all of its applications" by reference to the considerations of fair notice and clear standards for its application (id. at 421; see id. at 420).

Accordingly, the first question posed herein is whether the ERPO statutory scheme is sufficiently definite to have provided respondent with clear notice that his conduct would fall within the ambit thereof. The court begins with a recitation of the relevant statutory provisions. A respondent may be subjected to an ERPO when there is clear and convincing evidence, or a TERPO when there is probable cause to believe, that "respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in" Mental Hygiene Law § 9.39 (a) (1) or (2) (CPLR 6342 [1]; 6343 [2]). Mental Hygiene Law § 9.39 (a), in turn, provides that

" '[l]ikelihood to result in serious harm' . . . 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 [*5]other violent behavior by which others are placed in reasonable{**81 Misc 3d at 363} fear of serious physical harm."

When determining "whether grounds for a" TERPO or ERPO exist, a court must consider a nonexhaustive list of statutory factors—or red flags—that is set forth in CPLR 6342 (2) and incorporated into CPLR 6343 (see CPLR 6343 [2]; Mallery v DP, 78 Misc 3d 250, 252-253 [Sup Ct, Schoharie County 2022]). Such red flags

"includ[e], but [are] not limited to, the following acts of the respondent:

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

"(b) a violation or alleged violation of an order of protection;

"(c) any pending charge or conviction for an offense involving the use of a weapon;

"(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

"(e) any history of a violation of an extreme risk protection order;

"(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

"(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor" (CPLR 6342 [2]; see CPLR 6343 [2]).

Initially, to the extent that respondent argues that CPLR 6342 (1) and 6343 (2) are impermissibly vague or otherwise unconstitutional because, by incorporating Mental Hygiene Law § 9.39 (a) (1) and (2), they require a court to assess whether a person has a mental illness without the requirement of a physician's determination or other expert proof upon which to base such a finding, the court is not convinced and respectfully declines to follow the holding of its sister tribunal in R.M. v C.M. (79 Misc 3d 250 [Sup Ct, Orange County 2023]).^[FN8] The legislature's use of the phrase "as defined in" and its specific references to paragraphs (1) and (2) of Mental Hygiene Law § 9.39 (a)—which are the only provisions in Mental Hygiene Law § 9.39 (a) in which any term or phrase is defined—is sufficiently {**81 Misc 3d at 364}clear to allow this court to conclude that the ERPO statutory scheme does not condition the issuance of a TERPO or ERPO upon a finding that a respondent suffers from a mental illness (see also Hines v Doe, 78 Misc 3d 1092, 1095-1099, 1095 n 5 [Sup Ct, Albany County, Mar. 1, 2023, Marcelle, J.]). In other words, it is sufficiently clear that the legislature meant to borrow only the definitions of "likelihood to result in serious harm" into the ERPO statutes and not incorporate the remaining text of Mental Hygiene Law § 9.39 (a) therein.

[2] This, however, is where the statutes' clarity ends. An evaluation of the language employed in CPLR 6342 (1) and 6343 (2)—in particular, but not limited to, the statutes' attempt to define the phrase "likely to engage in conduct that would result in serious harm to himself, herself or others" by reference to Mental Hygiene Law § 9.39 (a) (1) and (2)—is incohesive to the point that its "vagueness [so] permeates [it that] 'no standard of conduct is specified at all' " (Stuart, 100 NY2d at 421, quoting Coates v Cincinnati, 402 US 611, 614 [1971]). The court therefore finds that respondent could not have had adequate notice of the statutes' reach; concomitantly, petitioner had, and this court has, no clear standard for the application of the statute; and this infirmity penetrates to the core of CPLR 6342 (1) and 6343 (2), rendering them invalid in every application. In conducting this analysis and reaching these conclusions, the court is mindful of its obligation to avoid unconstitutional constructions of the statutes if at all possible, and of the countervailing consideration that it is not within a court's power to assume the legislature's prerogative and rewrite a statute to correct a defect therein (see People v Taylor, 9 NY3d 129, 153-154 [2007]; LaValle v Hayden, 98 NY2d 155, 161 [2002]). The court also remains cognizant of the precepts of statutory construction that compel it to read the challenged provisions in such a way as to avoid rendering their text as superfluous, meaningless or absurd (see Matter of Rizzo v DiNapoli, 39 NY3d 991, 1001-1002 [2022]; Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018]).

To begin, the court is not convinced that "conduct that would result in serious harm to himself, herself or others" is a phrase sufficiently definite enough to provide clear and fair notice of the conduct that it covers or provide a clear standard for the application of CPLR 6342 (1) and 6343 (2). Assessing a person's likelihood to engage in such conduct is, in turn, also problematic. It appears that the legislature shares this view, insofar as{**81 Misc 3d at 365} they saw it necessary to clarify the meaning of this standard, or some part of it, by importing Mental Hygiene Law § 9.39 (a) (1) and (2) into the statutory text. This, however, only compounds the problem because, at bottom, CPLR 6342 (1) and 6343 (2) and Mental Hygiene Law § 9.39 (a) (1) and (2) discuss two entirely different things.^[FN9] CPLR 6342 (1) and 6343 (2) are concerned with the likelihood that conduct will occur, whereas Mental Hygiene Law § 9.39 (a) (1) and (2) are concerned with the likelihood that serious harm will occur, so the latter does not and cannot logically inform the question of the likelihood that a respondent would engage in whatever conduct the ERPO scheme purports to proscribe.

Further compounding this vagueness is the provision that the conduct with which CPLR 6342 (1) and 6343 (2) are concerned "would result in serious harm." This phrase signals a relative certainty that serious harm will result from the conduct, if the conduct were to occur (see Merriam-Webster.com Dictionary, will [https://www.merriam-webster.com/dictionary/will] [last accessed Sept. 15, 2023]). Thus, Mental Hygiene Law § 9.39 (a) (1) and (2)'s guidance regarding the likelihood that serious harm will occur has no logical application to the CPLR 6342 (1) and 6343 (2) standards, which present the "result [of] serious harm" as a certain consequence of the proscribed conduct.

Nor can Mental Hygiene Law § 9.39 (a) (1) and (2) be logically read to define the conduct that CPLR 6342 (1) and 6343 (2) are meant to address. As noted, Mental Hygiene Law § 9.39 (a) (1) and (2) do not define conduct. Rather, the conduct that they reference—"threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous [*6]to himself" under paragraph (1) and "homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" under paragraph (2)—is that by which the "substantial risk of physical harm" with which the definitions are concerned is manifested. Thus, the plain terms of Mental Hygiene Law § 9.39 (a) (1) and (2) do not admit of a reading of CPLR 6342 (1) and 6343 (2) to the effect that{**81 Misc 3d at 366}

"respondent is likely to engage in threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm, that would result in serious harm to himself, herself or others."

Even if this standard could be considered other than nonsensical (and the court concludes the contrary), it would remain untenable because Mental Hygiene Law § 9.39 (a) (1) and (2) simply do not provide for this. This finding is buttressed by the nature of the red flag factors, which the legislature binds the courts to consider, but the lion's share of which do not reflect, or necessarily reflect, homicidal or suicidal behavior at all.

Finally, Mental Hygiene Law § 9.39 (a) (1) and (2), by their plain terms, do not define what "serious harm" is. All those provisions have to offer is that it is physical harm. Again, the references therein to suicidal and homicidal behavior do not refer to the sort of physical harm with which the provisions are concerned, but to the manifestation of a "substantial risk" that physical harm will result. It cannot be that all "physical harm" must be considered "serious harm," or that mere physical harm somehow becomes serious when there is a "substantial risk" of it, and we are left with no guidance as to what physical harm is to be considered serious.

So, Mental Hygiene Law § 9.39 (a) (1) and (2) do not logically define any component of the phrase into which they were imported—not the conduct with which CPLR 6342 (1) and 6343 (2) are concerned; not the likelihood that that conduct, whatever it is, will occur; not the likelihood that serious harm would result from a respondent engaging in that conduct; and not the meaning of the term "serious harm." The result is that these phrases, each vague unto themselves, receive no clarity from the legislature's reference to Mental Hygiene Law § 9.39 (a) (1) and (2), leaving the people of our state with a statutory morass that is largely devoid of meaning, and which could not have provided fair notice of its contours to respondent.

Put another way, since the ambit of CPLR 6342 (1) and 6343 (2) cannot be meaningfully discerned, it cannot be said that respondent's conduct plainly falls within it (see People v Nelson, 69 NY2d 302, 308 [1987]). It does not suffice to say, as petitioner did in so many words at oral argument, that everyone knows what a red flag law is supposed to do or that{**81 Misc 3d at 367} one might reasonably believe that anyone would think that respondent's conduct would be covered by it,^[FN10] when, as here, we are faced with a statute so flawed in its draftsmanship that its language effectively proscribes nothing with any clarity (see Coates, 402 US at 614; Stuart, 100 NY2d at 421).^[FN11]

Having held that CPLR 6342 (1) and 6343 (2) are unconstitutionally vague,^[FN12] it is unnecessary, and would be inappropriate, for the court to reach respondent's claim that CPLR article 63-A violates the US Constitution, Second Amendment (see Spector Motor Service, Inc. v McLaughlin, 323 US 101, 105 [1944]). Arguments not specifically addressed have been examined and determined to be without merit or academic in of light of the holdings herein. Based upon the foregoing it is hereby ordered that respondent's motion is granted to the extent noted herein; and it is further ordered that CPLR 6342 (1) and 6343 (2) are declared to be unconstitutionally vague and, as such, void and unenforceable; and it is further ordered that the currently effective TERPO, issued herein on July 10, 2023, is vacated; and it is further ordered that the petition is dismissed; and it is further ordered that good cause exists to seal the record of this proceeding pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 216.1 (a), on the court's own initiative, to avoid the potential stigmatization of the minor respondent{**81 Misc 3d at 368} and in keeping with the principles underlying CPL 160.50; such interests having been found to outweigh the public interest in accessing the record.