IN DENYING THE STATE POLICE’S REQUEST FOR AN EXTREME RISK PROTECTION ORDER (ERPO) AGAINST THE 18-YEAR-OLD RESPONDENT, THE JUDGE FOCUSED ON THE ABSENCE OF EVIDENCE RESPONDENT HAD ACCESS TO FIREARMS TO THE EXCLUSION OF EVIDENCE RESPONDENT POSED A RISK OF SERIOUS HARM TO HIMSELF OR OTHERS; NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court and remitting the matter for a new hearing, determined the judge hearing the State Police’s application for an “extreme risk protection order (ERPO) against the 18-year-old respondent did not apply the correct criteria in denying the request. Supreme Court erroneously focused on the lack of evidence the respondent had access to a firearm to the exclusion of evidence respondent posed a risk of serious harm to himself or others:

… CPLR article 63-A establishes a procedure by which a court may temporarily restrict a person’s access to firearms where that person has been judicially determined to pose a risk of serious harm to themself or others (see CPLR 6340 [1]; 6342, 6343). The purpose of the statutory scheme is “to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others” … . Upon application, the court may first issue a temporary ERPO upon a finding of probable cause to believe that “the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others” (CPLR 6342 [1]). Where, as here, a temporary ERPO is denied, the court must nevertheless conduct a hearing on the application for a final ERPO (see CPLR 6342 [5]). At that hearing, the petitioner bears the burden to establish, by clear and convincing evidence, “that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others,” as defined in Mental Hygiene Law § 9.39 (a) (CPLR 6343 [2]). 

In making that determination, the court must consider the eight factors enumerated in CPLR 6342 (2), together with any other relevant circumstances (see CPLR 6343 [2] …). The statutory factors include, among other things, acts of the respondent involving “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person” (CPLR 6342 [2] [a]). Significantly, only three of the eight enumerated factors expressly concern a weapon or firearm (see CPLR 6342 [2] [c], [d], [g]). Thus, nothing in the statutory framework requires proof that the threatened or anticipated physical harm will be accomplished with a firearm, nor does it make a respondent’s existing possession of or access to a firearm a prerequisite to issuance of an ERPO. Indeed, the Legislature’s express reference to firearms in certain statutory factors, while omitting any such limitation from the governing likelihood-of-serious-harm standard and the general threat-of-violence factor, demonstrates that no such additional requirement may properly be engrafted onto the statute … .

The record reflects that Supreme Court nevertheless imposed such a requirement. Matter of New York State Police v Owen WW., 2026 NY Slip Op 05452, Third Dept 9-24-26

Practice Point: Consult this decision for insight into the procedure and criteria for determining an application for an extreme risk protection order (ERPO).