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New York's Red Flag Law is Unconstitutional

New York's Red Flag Law was ruled Unconstitutional . The NY Red Flag Law is Unconstitutional because it does not provide Due Process protections. The GW v. CN, 2022 N.Y. Slip Op 22392 (NY: Supreme Court, Monroe 2022) and makes clear that New York's Red Flag Law is Unconstitutional, a violation of the United States Constitution, running afoul of the Second Amendment.

Temporary Extreme Risk Protection Order (hereinafter "TERPO") is evaluated by the Court as follows: "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". Noting that other Constitutional Amendments are afforded due process protections, such as a lawyer, the TERPO process does not.

The Court recounts the facts of this NY Red Flag Law Case:

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.

The Supreme Court of the United States recently interpreted the Second Amendment to the United States Constitution. That case is New York State Rifle and Pistol Assn., Inc. v. Bruen, 142 S.Ct. 2111 (2022). This is not trivial although it has come under the rebuke of the acting and now elected the NYS Governor.

In Bruen, the Court recognized that "the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense." Bruen, at 2125. Further, in following the lead of District of Columbia v. Heller, 128 S.Ct. 2783 (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 to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation." Bruen, at 2126.

The Court here notes that

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. City of Chicago, Ill, 561 U.S. 742, 780, 130 S.Ct. 3020 (2020) 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." McDonald at 780. Most recently, in New York Rifle and Pistol Association, Inc. v. Bruen, supra, 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 at 2156, quoting McDonald, supra, at 780.

The question for the court then becomes "Since MHL § 9.39 and CPLR §63-a both employ the same definition for "likelihood to result in serious harm," why should respondents under the Mental Health 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 63-a in which "lay people" make such a determination?" Great question, for which the Court decides that one without any such experience

Recognizing, that involuntary commitment is a massive curtailment of civil liberties, the Court states "MHL §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" as opposed to very little constitutional safeguards. Here this is a situation, at times, where the guns are taken and then due process rights are afforded.

The Court gives "recognition that an ERPO extensively effects a person's Second Amendment right to bear arms [and] 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...these protections of due process and representation by counsel are not present nor guaranteed under CPLR § 63-a proceedings." In overturning the law the Court makes the observation:

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 §63-a's goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be condoned by this Court.

The case is GW v. CN, 2022 N.Y. Slip Op 22392 (NY: Supreme Court, Monroe 2022) and makes clear that New York's Red Flag Law is Unconstitutional

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

Call 631-450-2515 or E-Mail to arrange for an evaluation of your criminal defense, appellate matter or for assistance in filing a criminal defense motion.


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