Petitioner New York State Investigator Danielle Kohler (petitioner) commenced this proceeding under CPLR article 63-A seeking an Extreme Risk Protection Order ("ERPO") to prohibit Respondent S.L. from possessing guns.^[FN1] Petitioner requested and received a temporary order pending a hearing. Pursuant to that order, respondent was personally served and notified of the hearing's place, date, and time. Nevertheless, respondent chose not to appear, made no request for an adjournment, nor contacted the clerk of the court or the court itself to proffer an excuse for non-appearance. Consequently, the court proceeded with the hearing in respondent's absence.

Given that petitioner seeks to restrict respondent from firearm possession, the Second Amendment operates as a constraint. At the outset, it should be noted that several courts have found the ERPO statute facially unconstitutional (see e.g., Anonymous v C.P., 81 Misc 3d 355 [Sup Ct, Warren County 2023]; G.W. v C.N., 78 Misc 3d 289 [Sup Ct, Monroe County 2022])—others have disagreed (J.B. v. K.S.G., 79 Misc 3d 296, 302 [Sup Ct, Cortland County 2023]). A constitutional attack, especially when there is the divergence of opinion on the issue, is best not done sua sponte. Therefore, as the facial constitutional question was not presented, the [*2]court shall not address it.

Even assuming the constitutionality of the statute, the court's decision is still confined by the Second Amendment. In the last two decades, the Second Amendment has sprung to life. There is and has been a fury of litigation that has begun to delineate doctrinal boundaries for courts. Though the constitutional edges are in flux, the core principles are settled—chief among them is that "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct" (New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US 1, 17 [2022]). Among the presumptively protected conduct that the Second Amendment protects is the right of the people to keep guns in their home (District of Columbia v Heller, 554 US 570 [2008]). Petitioner in this case seeks to prevent respondent from exercising this right. Therefore, since the government seeks "an injunction under CPLR 6343 (3) [which] operates as a forfeiture of weapons in a home, it violates the Second Amendment; [unless] a categorical exception to the Second Amendment exists . [W]ithout an [historical based] exception, [respondent's] right to keep weapons may not be infringed" Hines v Doe, 78 Misc 3d 1092, 1094-95 [Sup Ct, Albany County 2023]).

To carry its burden, the government must point to "historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation" (Bruen, 597 US at 25). The government need not identify a "historical twin"; rather, a "well-established and representative historical analogue" suffices (Id. at 30 [emphasis in the original]). Thus, the central inquiry is whether the present grounds for dispossession and the analogue are "relevantly similar" (Id. at 29).

To begin with the elementary, "[n]o rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose" (Heller, 554 US at 612). Unsurprisingly then, history evidences that the legislature may disarm dangerous individuals (see e.g., Kanter v Barr, 919 F3d 437, 454 [7th Cir 2019] [Barrett, J., dissenting] [illustrating historically that individuals "who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety" could be lawfully disarmed]). Indeed, it seems beyond dispute that the law may disarm "dangerous individuals" (New York State Rifle & Pistol Assn., Inc v City of New York, 140 S Ct 1525, 1541 [2020] [Alito, J., dissenting].

Now, of course, the question becomes what constitutes a "dangerous individual." The term dangerous is hardly precise. However, the United States Supreme Court has granted a writ of certiorari in a case that may well decide and define what makes an individual dangerous enough to permit disarmament (United States v Rahimi, 61 F4th 443 [5th Cir 2023], cert granted, 143 S Ct 2688 [2023]). So, while waiting for guidance, the court will cautiously endeavor to apply "the dangerous person" exception to the Second Amendment under the presented facts.

Here is the rub of the case. Respondent has neither been convicted of nor charged with a violent crime. But the government need not wait until an individual perpetrates actual violence to disarm him. Indeed, the legislature enacted ERPO to address overtly dangerous behaviors which foreshadows imminent violence. However, predicting future events is a very tricky business. Since perfect prognostication of violence exists only in science fiction (see Philip K. Dick, The Minority Report [1956], [relating a tale about three mutants (precogs) who possess the extraordinary capability to impeccably predict criminal activity before it occurs]), the court has the unenviable task to divine whether respondent will commit gun violence in the future.

The court is loathed to infringe on a person's constitutional right based upon what might [*3]be. Nevertheless, this case presents some anvil like hints about S.L.'s future actions.

At the hearing, the testimony painted a disturbing picture of respondent as an agitated and unstable young man who is possessed by a gnawing paranoia. S.L. had been arrested and while being booked at the State Police barracks, S.L. initially made threats of physical violence against two individuals. As the process proceeded, S.L. made highly detailed and specific threats to shoot police. Further, he singled out one female officer in particular for sexual violence and he was quite descriptive of his plan to hide a gun behind the door to execute his nefarious plan.

These statements were recorded by cameras—and the visual impact of S.L.'s rantings is hard to capture in words, but S.L.'s affect and demeanor presented a person in a precarious and perilous mental state.

In addition, when respondent was served the notice of the ERPO hearing, a State Trooper spoke with S.L.'s parents. The parents indicated that in light of respondent's negative behaviors, they deemed it wise to remove all guns from the house. In essence, the people that know S.L. best felt that S.L.'s access to guns represented a clear risk.

Under the facts and inferences presented here and since S.L. failed to show up at the hearing to object or to contest the issues involved, the court finds that petitioner has proven by clear and convincing evidence that S.L. currently represents a risk of harm to others (CPLR 6343 [2])

Therefore, it is

ORDERED that the Petition is granted; and it is further

ORDERED that Respondent may neither purchase nor possess a firearm of any type until July15, 2024; and it is further

ORDERED that Petitioner shall serve a copy of this Order personally upon Respondent no later than December 28, 2023; and it is further

ORDERED that Petitioner is granted leave to seek an extension of this Order.

The foregoing constitutes the Decision, Order and Judgment of the court.