"That the law allows that “family members, school administrators and law enforcement officials can seek to get guns confiscated from people deemed by courts to be an ‘extreme risk’ to themselves or others.”
I am not agreeing with the new law, but it does look like one gets their day in court.
Sorry in advance for the long post.
"Under the new law, school officials, family members and police can apply to the courts to get a “temporary extreme risk protection order” against an individual.
If initially approved by a judge, the individual would be banned from buying, possessing or attempting to buy firearms for up to six (business) days. During that time, a hearing would have to be held on extending the length of the order up to one year. It permits police to confiscate any weapons possessed by the individual."
https://buffalonews.com/2019/02/25/cuomo-signs-red-flag-gun-control-bill-into-law/
The initial decision appears to be an ex parte proceeding using the probable cause standard where only the people seeking the order are represented with no requirement that the subject of the order be notified. This procedure is similar to that of a search warrant which are rarely denied by magistrates. The two party hearing is subsequent to the taking of a person's liberty and property interest with no provision for paying of attorney fees, essentially putting the burden of proof on the subject to "prove" they are not a risk.
The standard under the NYS law for the emergency order is
"2. In determining whether grounds for a temporary extreme risk
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protection order exist, the court shall consider any relevant factors
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including, but not limited to, the following acts of the respondent:
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(a) a threat or act of violence or use of physical force directed
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toward self, the petitioner, or another person;
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(b) a violation or alleged violation of an order of protection;
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(c) any pending charge or conviction for an offense involving the use
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of a weapon;
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(d) the reckless use, display or brandishing of a firearm, rifle or
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shotgun;
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(e) any history of a violation of an extreme risk protection order;
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(f) evidence of recent or ongoing abuse of controlled substances or
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alcohol; or
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(g) evidence of recent acquisition of a firearm, rifle, shotgun or
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other deadly weapon or dangerous instrument, or any ammunition therefore."
The court during the time of the emergency order has law enforcement do a background check which searches for whether the subject of the order
"(a) has any prior criminal conviction for an offense involving domes-
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tic violence, use of a weapon, or other violence;
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(b) has any criminal charge or violation currently pending against him
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or her;
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(c) is currently on parole or probation;
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(d) possesses any registered firearms, rifles or shotguns; and
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(e) has been, or is, subject to any order of protection or has
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violated or allegedly violated any order of protection."
Note that these are disqualifiers for ownership in most cases anyway (see BATF form 4473) and thus any purchaser that states any of these conditions will be rejected from purchasing via a FFL anyway. If any of these background check conditions existed, the police would be able to search and seize firearms via a search warrant other than simple possession of registered firearms.
https://nyassembly.gov/leg/?default_fld=
t&leg_video=&bn=S02451&term=2019&Summary=Y&Text=Y
Upon being served with the order, the named subject of that order must identify on a form all the firearms they own and their location so that these can be seized (possible Haynes issue here, Haynes v. U.S. 390 U.S. 85, (1968)).
Generally, the requirement on mental health commitment is that the person is able to challenge the commitment order BEFORE IT IS ISSUED and in many states, they get a court appointed attorney if indigent. In this case, the presumption is for the taking of liberty and property interests first and then allowing a subsequent action by the subject to challenge the taking. However, the individual named in the order, will, more or less have to prove that they are not a risk unlike a criminal trial. The bill does require the state must provide clear and convincing evidence that the 1 year order is justified but when the individual's behavior and mental state named in the order are the issue, then it requires more or less that the individual be able to demonstrate that they are not a risk at the hearing. In essence, the form of the law implies the state has the burden, but in actuality, the defendant will have to challenge assertions from family members, school personnel, or police, which would in most cases require testimony, perhaps psychological evaluation by a trained professional, etc.
In my evaluation of the law, the problem is two fold. First, for those criminals who illegally possess firearms according to federal and state statutes, the existing process of search warrants and subsequent seizures is enough. The police and courts already have the means of securing these firearms without this law. Second, for those being challenged on potential behavior or their underlying mental state, the existing mental commitment laws or criminal law in the case of violent overt threats already exists. At best, this law is a placebo that simply adds to already existing law which already permits firearms to be taken from criminals.
At worst, however, it is a process that can be manipulated, is costly to challenge for the subject of the order, and provides dubious procedural protections for their liberty and property rights. There is no provision in the law for the police to be sued for damage to the property during the taking, no provision for attorney's fees if the named subject of the order wins in court, no provision for a court appointed attorney if the named subject is indigent, and no recompense if the order was maliciously pursued by police, school, or family members. It is simply designed to be one more set of bureaucratic hassles to isolate lawful firearm owners and stigmatize them as potential nuts for wanting own firearms. NYS politicians can then gaslight the opponents of this bill by claiming that opponents want criminals and nutcases to be able to keep firearms as I am sure that a particular troll infesting THR will do so in short order. IN truth, all of the bill's provisions directed at preventing mentally ill or criminal possession are already addressed by existing federal and NY state criminal and mental hygiene laws except for the new procedures outlined in the bill.
