Petitioner Gregory Maxwell, New York State Police ("NYSP") Investigator, seeks entry of an Extreme Risk Protection Order ("ERPO") against respondent D. L. [Name Redacted] under New York's "Red Flag" law. (CPLR Article 63-A). A temporary ERPO ("TERPO") was issued by the Hon. E. Danielle Jose-Decker. Thereafter, this Court conducted an evidentiary hearing on the application for a permanent ERPO. Petitioner was represented by the Office of the Attorney General ("OAG"); respondent, who was properly served with notice of the hearing, did not appear. For the reasons set forth herein, the petition is denied and the temporary ERPO vacated.

The statute provides that an ERPO may only be issued upon a hearing at which the petitioner establishes by clear and convincing evidence that the respondent "is likely to engage in conduct that would result in serious harm" to themselves or others. Once issued, an ERPO prohibits the subject from acquiring or possessing guns of any kind for as long as the order is in place. Like the majority of ERPO respondents brought before this Court, however, respondent [Name Redacted] does not own any guns and there is no evidence she intends to acquire any.

Petitioner called two witnesses at the hearing: NYSP Troopers Martin Szostak and Jacob Nielson, both of whom responded to two 911 calls to the respondent's home on the night of June 16, 2024. According to the troopers, the first call reported an individual female, later identified as the respondent, screaming and shouting outside of her residence. When the troopers arrived, respondent had already gone inside the house and was in her bedroom. Numerous other family members were present in the home, with the 911 call having been placed by her father. [*2]Respondent admitted to the troopers that she was upset because she wanted to go for a drive and her parents and boyfriend would not let her. The troopers de-escalated the situation, with respondent agreeing to stay in her room and her family agreeing not to bother her, and left the scene.

Approximately 45-60 minutes later, the troopers were summoned back to the scene by a second 911 call. This call reported a psychiatric emergency relating to a female — again, the respondent — who had cut herself with a knife. This time, when the troopers arrived, respondent was outside her home, alone. She stated to Trooper Szostak that she had become upset again regarding use of the car and that she had cut herself. Respondent, who is 21, further claimed that she had been diagnosed as "bipolar" when she was a child and, in response to Trooper Szostak's questioning, she admitted having had thoughts of killing herself.

Trooper Szostak did not identify what implement respondent had used to cut herself. He described the cuts as "minor lacerations," but noted that there were "two that were pretty bad." Trooper Nielson also observed her injuries which he described as "fairly shallow lacerations." Asked by the Court if there was a lot of blood, Trooper Nielson testified, "No." No photographs were taken of respondent's injuries.

During this second dispatch, Trooper Nielson interviewed the respondent's father. According to Trooper Nielson, the father reported that the family members had stayed away from each other as they had agreed but he could hear respondent in her room occasionally making statements such as "I want to slit my throat" or "I'm going to kill myself." The father eventually went to the room to investigate and saw cuts on respondent's arm. He noticed that she had a knife held against her side, which he wrestled away from her. The father showed Trooper Nielson the folding-blade pocket knife that he said he had taken from respondent. The troopers did not take the knife, nor did they take any pictures of the knife. Trooper Nielson testified that he did not see any blood on the knife.

The father also stated to Trooper Nielson that respondent had been diagnosed as "bipolar" as a child but had had no mental health diagnoses or treatment since that time. Trooper Nielson obtained a sworn, written statement from the father, which was received in evidence, and is consistent with Trooper Nielson's account (except as described below). The written statement also avers that respondent has not had any suicide attempts "nor has she had an outburst this severe in many years." [P.Ex.1]

The only other physical or documentary evidence received is the ERPO Background Report prepared by the petitioner which confirms that the respondent has no pending criminal charges, has never been convicted of a crime of violence, including domestic violence or use of a weapon, has never been the subject of an order of protection, and has no guns. [P.Ex.2]

The standard in an ERPO proceeding is not whether the Court thinks it's a good idea for a respondent to have a gun. Rather, the law establishes a significant evidentiary burden that the petitioner must meet. "Clear and convincing evidence is a higher, more demanding standard than the preponderance standard and it is evidence that is neither equivocal nor open to opposing presumptions." (In re Duane II, 151 AD3d 1129, 1131 (3rd Dept. 2017)[internal quotation marks and citation omitted]). The evidence presented here falls far short of this standard.

As a starting point, petitioner failed to call as witnesses any person personally familiar with the respondent. In particular, petitioner did not call respondent's father to testify, despite him being actively engaged in the events of June 16. While petitioner obtained a brief written [*3]statement from him, that statement actually created ambiguity in the evidence on an important point. According to Trooper Nielson's testimony, at the scene the father claimed that respondent was "holding" the knife against her abdomen, suggesting that she was considering, or even on the verge of, stabbing herself. In contrast, in his written statement, the father describes the respondent as "hiding" the knife against her body, suggesting she was trying to avoid her father discovering that she had engaged in self-harm, but was not actively considering further harm. Had the father been called to testify, this nuance could have been resolved. More important, the father could have been asked to further explain his daughter's mental health history, any prior incidents and to explain whether he feared for her, or anyone else's safety.

In addition to the father, the troopers testified that there were multiple other family members present in the home throughout these incidents including respondent's mother, who placed at least one of the 911 calls, and respondent's boyfriend, who apparently had been directly involved with respondent regarding her intent to use a car. Petitioner did not call any of these witnesses to testify and indeed did not even obtain a statement from any of them. Recordings or transcripts of the 911 calls were not obtained.

Neither of the testifying troopers knows respondent personally. They have no basis to assess respondent's behavior beyond their own observations on a single evening. In order for a court to assess what a respondent is likely to do in the future, this is simply insufficient. Yet, despite having a room full of relatives and loved ones who are familiar with respondent's personality and behavior, and who witnessed all of respondent's conduct that evening, petitioner omitted to bring any of them to the hearing.

Petitioner also submitted no medical evidence regarding either respondent's physical injuries or her mental health. As to the first category, the troopers' testimony suggests that respondent's injuries were minimal. They were inflicted some time prior to their arrival on the second call but when they arrived respondent was ambulatory, lucid and did not, by her actions, suggest she was in need of medical attention. Respondent's arm was not bloody. The troopers' descriptions of the wounds, however, was not identical. Medical testimony or records would have been helpful to assess the degree of force used by respondent in inflicting the injuries and by what modality. Did she require nothing more than bandages at the scene? Or was further intervention such as sutures or medical glue required? Did she require medication or follow-up treatment? Where the fact that respondent injured herself is the triggering fact for seeking an ERPO, the omission of any evidence about the injuries — or even photos of the injuries — is significant.

The lack of mental health evidence is even more critical. Such evidence is not required by statute. Soon after the enactment of the Red Flag law, some courts found it unconstitutional. The lack of a requirement that a petitioner present medical evidence regarding a respondent's mental health was highlighted as a constitutional defect. (See, e.g., G.W. v C.N., 78 Misc 3d 289, 293-95 [Sup.Ct. Monroe Cty. 2022]). This Court, among others, found that the absence of such a requirement did not render the statute unconstitutional principally because the scope of the statute encompassed potential respondents who would be subject to the law despite not suffering from a mental illness. (Haverstraw Town Police (PO Vega) v C.G., 79 Misc 3d 1005, 1015 [Sup.Ct. Ulster Cty. 2023]). In particular, for example, the Red Flag law may be used to disarm domestic abusers. (Id.). The only appellate court to consider the question has also declined to invalidate the law on this basis for the same reason: a respondent's mental health simply will not always be in issue in an ERPO proceeding so requiring such testimony in all cases would make [*4]no sense. (R.M. v C.M., 226 AD3d 153, 161-62 [2nd Dept. 2024]). As this Court discussed in Havestraw, however, the fact that such evidence is not statutorily required in all cases does not mean that it is not functionally required in some cases.

As the Court has commented in prior cases brought by NYSP Investigators (see, e.g., Maxwell v R.Q., Decision, May 23, 2024, Ulster County, Index No. 2024-852 [unpublished]), within the medical community the act of "cutting" is not considered a suicide attempt. Rather, it is one of many identified forms of non-suicidal self-injury ("NSSI") some individuals use "to cope with emotional pain, sadness, anger and stress."^[FN1] There is nothing in the record to suggest that respondent intended to kill herself or experiences chronic suicidal ideation. Her father's statement is to the contrary. To obtain an ERPO, petitioner must demonstrate that respondent is at risk of causing not any harm, or some harm, but "serious harm." (See J.B. v K.S.G., 79 Misc 3d 296, 301 [Sup. Ct. Cortland Cty. 2023]). On this record, the Court cannot even conclude that she intended serious harm on the night of the police intervention.

Presumably anticipating the Court's perspective on cutting, the OAG has submitted in support of the petition an article entitled "Nonsuicidal Self-Injury: What We Know, and What We Need to Know." (Klonsky, Victor, and Saffer, Can. J. Psychiatry, 2014 Nov. 59(11), 565). OAG represents that this article stands for the proposition that an individual who engages in self-injury, such as cutting, is substantially more likely to attempt suicide in the future. As an initial matter, the Court appreciates OAG's willingness to cite non-legal sources, including medical journals, to better assist the Court in making determinations such as this.^[FN2]

Consistent with the Court's conclusion, the article bluntly states that "people who engage in NSSI do not intend to end their own life" and "NSSI is most often performed in the absence of suicidal ideation." (Id. [emphasis added]). The article does, however, also state there is "accumulating . . . evidence" that "NSSI is a strong predictor of future suicide attempts," compared to other indicia such as depression, impulsivity or even past suicide attempts. (Id.) Whatever the merits of such "accumulating evidence" with respect to the population as a whole, the main deficiency in using this article in the present case is that it is not a medical report about the respondent.

In referring to medical authorities regarding cutting, such as the Mayo Clinic webpage cited above, the Court has used such information to understand what the respondent has actually done. OAG's purpose in citing this article, however, is different: it is to invite the Court to predict respondent's future behavior based not on an individualized assessment of her, but rather on general probabilities.^[FN3] According to the Centers for Disease Control, in 2022 more than 13 [*5]million Americans seriously contemplated suicide, nearly 4 million made a plan, and more than 1.5 million attempted suicide of whom nearly 50,000 died.^[FN4] The evidence presented in this case does not even permit the Court to conclude that respondent falls into the 13 million person category.

Concluding that an individual who may be suffering from mental illness is a danger to themselves or others based on probabilities or categorization (i.e., persons with depression or persons who self-harm) is essentially speculation. Such speculation is especially troubling against a 20th century history of confining thousands of non-violent mentally ill persons in mental hospitals on ill-founded conclusions of dangerousness. In any event, the law does not permit it. The conclusion that a respondent is likely to engage in conduct that will cause serious harm to themselves or others, where that likelihood is premised on the presence of mental illness, must be grounded in evidence — clear and convincing evidence — about the respondent's mental health, behavior, diagnoses, treatment, etc. Such evidence is completely lacking in this case. Indeed, of the seven factors that the Red Flag law mandates the Court to consider, not a single one is present here. (See CPLR §§6342[2], 6343[2]).

This case is not unique. Indeed, at this point, a typical ERPO brought in this County involves a woman experiencing or processing trauma who, upon saying or doing something suggestive of self-harm, has been sent for a compulsory mental health evaluation, with an ERPO application following as a matter of course. By proceeding in this way, without individualized assessment or investigation, petitioners are directing the weight of state enforcement authorities against an at-risk population that is unlikely to have been the intended target of the legislation. Women are twice as likely to be diagnosed with depression as men and are more likely to attempt suicide — but men are four times as likely to die of suicide.^[FN5] Yet the number of ERPO filings against suicidal men is dwarfed by the filings against women. This Court's chambers regularly fields calls from distraught ERPO respondents who do not understand what they have done wrong and are afraid of going to jail.^[FN6]

Being sued by the police and hauled into court is traumatic. It may be that such traumatization is an unavoidable incident to the effective application of the Red Flag law. But if so, it is at least equally necessary that the initiation of such cases be accompanied by a meaningful investigation and the marshalling of evidence that could satisfy the petitioner's heavy burden. Because petitioner failed to do so in this case, the petition must be, and hereby is DENIED.

This shall constitute the Decision of the Court. The original Decision and all other papers are being forwarded to the Ulster County Clerk for filing. The signing of this Decision shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.

SO ORDERED.