Prevention of NY Gun Violence
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NYS Bar Association’s Recommendations to Combat Gun Violence
To combat the epidemic of gun violence in America, the New York State Bar Association (“NYSBA”) has a comprehensive report with recommendations for legislative reforms. Governor Hochul’s executive order included a NYSBA recommendation that would require New York State Police to file for an Extreme Risk Protection Order (ERPO) under New York State’s Red Flag Law whenever they have probable cause to believe that an individual is a threat to themselves or others.
Recommendations call for a nationwide adoption of red flag laws and bans on the possession, sale and manufacture of assault-style weapons, and an extension of the time period for background checks to at least 30 days.
A red flag law, like the one enacted in New York in 2019, allows a judge to issue an extreme risk protection order against a person found to be at risk of harming themselves or others. The order would prohibit that person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.
The federal assault weapons ban, in effect from 1994 through 2004, included a prohibition on the manufacture of certain semi-automatic weapons with military-style features. According to a 2019 study from the Rockefeller Institute of Government, assault-style rifles were used less frequently in mass shootings during the ban.
Defining assault weapons as “high-powered semi-automatic firearms that are capable of autoloading a new cartridge into the chamber after the gun is discharged,” the task force notes that these assault weapons were used in several well-known mass shootings like Sandy Hook, Pulse Nightclub, Las Vegas Country Music Festival and Marjory Stoneman Douglas High School in Parkland, Fla.
Federal law requires only people who buy a gun from a federally licensed gun dealer to pass a background check and if it has not been completed within three business days, the sale may go through without waiting for the results.
Using New York as an example for the rest of the country, the New York State Bar Association recommends extending the time in which a background check must be completed before a final sale to at least 30 days. The recommendations of the task force also include:
- Banning large-capacity magazines that hold more than ten rounds of ammunition.
- Banning bump stocks and other devices that effectively enable semi-automatic firearms to be fired in fully automatic mode.
- Banning firearms manufactured without a license and without a serial number.
- Enacting universal background checks for all gun sales.
- Requiring gun owners to obtain a license to purchase and possess all types of firearms.
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An ERPO is a court order issued under New York’s Red Flag Law. It temporarily prohibits a person who is found to be ‘likely to engage in conduct that would result in serious harm to self or others’ from purchasing or possessing firearms, and it requires them to surrender any guns they currently own. It is a civil order, not a criminal one.
In New York, a petition for an ERPO can be filed by a police officer, a district attorney, a family or household member (including ex-spouses and those with a child in common), or a school administrator (such as a principal or superintendent).
The process begins with an ‘ex parte’ hearing, which you do not attend. If the judge finds probable cause, they will issue a Temporary ERPO and order the immediate seizure of your firearms. You will then be served with the papers and scheduled for a full hearing, typically within 3 to 10 days, where you have the right to be represented by an attorney and present a defense.
The legal basis is different. An Order of Protection in a domestic violence case is based on the commission of a past ‘family offense’ (like assault or stalking). An ERPO is a preventative measure based on a prediction of future dangerousness, and no crime or family offense is required to file a petition.
If, after a full hearing, the court finds clear and convincing evidence that the person is likely to cause serious harm, it can issue a Final ERPO that lasts for up to one year. The petitioner can also apply to have the order renewed before it expires.
The court can consider any relevant evidence, including recent threats or acts of violence, a pattern of violent behavior, dangerous mental health issues, substance abuse, or the recent acquisition of a weapon. Evidence often includes witness testimony, text messages, social media posts, and police reports.
Violating an ERPO by possessing or purchasing a firearm is a Class A misdemeanor in New York. This would be a new criminal offense separate from the civil ERPO matter itself and would have severe consequences, including potential jail time and a permanent criminal record.
Yes, it is absolutely essential to hire a lawyer immediately if you are the subject of an ERPO petition. Your constitutional rights are at stake in a very fast-moving legal process. The attorneys at Friedman & Ranzenhofer, PC understand the specific standards and procedures of Red Flag Law cases and can build a strong defense to challenge the evidence, cross-examine witnesses, and protect your rights in court.
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