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AFTER RESPONDENT-STUDENT THREATENED TO “SHOOT… UP THE SCHOOL,” PETITIONER-POLICE-DEPARTMENT FILED A PETITION FOR AN EXTREME RISK PROTECTION ORDER PURSUANT TO CPLR ARTICLE 63-A WHICH SUPREME COURT DENIED ON THE GROUND THE STATUTE VIOLATES THE SECOND AMENDMENT; THE APPELLATE DIVISION REVERSED FINDING THE STATUTE CONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that petitioner-police-department’s petition for an extreme risk protection order re: a 16-year-old student who had threatened to “shoot up the school” should not have been dismissed on the ground that the controlling statute, CPLR article 63-A, is unconstitutional:

… [T]he respondent, born in 2009, told other students on his school bus that “they shouldn’t come to school tomorrow” after they criticized the cleanliness of his hands. After the words “gun” and “shooting up the school” were mentioned, the respondent said that he was joking, but later said that he “may be serious” in carrying out his threat. School officials reported previous incidents involving violence by the respondent against other students, suicidal ideation and behavior by the respondent, and evidence that the respondent may have a mental illness.

The petitioner [police department] filed a petition for an extreme risk protection order pursuant to CPLR article 63-A. The Supreme Court dismissed the petition [on the ground that] CPLR article 63-A is unconstitutional. …

The respondent is a minor less than 16 years old, who … is not allowed to possess guns …, … [T]he Supreme Court of the United States stated that the Second Amendment of the United States Constitution protects “law-abiding, adult citizens.” The respondent in this case is not an adult and has no general right to keep and bear arms. Therefore, he lacks standing to challenge CPLR article 63-A as a violation of the Second Amendment … .

Further, … CPLR article 63-A is constitutional and does not deprive the respondent of due process of law. Accordingly, the petition should be determined on the merits. Matter of Gallagher Town of New Windsor Police Dept. v D.M., 2024 NY Slip Op 01539, Second Dept 3-20-24

Practice Point: Here the police department sought an extreme risk protection order re: a 16-year-old student who threatened to shoot up the school  Supreme Court dismissed the petition for the extreme risk order, finding the controlling statute, CPLR article 63-A, unconstitutional. The First Department reversed noting its opinion dated March 20, 2024, Matter of R.M. v C.M., 2024 NY Slip Op 01545, finding the statute constitutional.

 

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