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CPLR ARTICLE 63-A IS CONSTITUTIONAL; THE STATUTE ALLOWS ISSUANCE OF AN EXTREME RISK ORDER PROHIBITING A RESPONDENT FROM POSSESSING A FIREARM BASED UPON EVIDENCE RESPONDENT IS LIKELY TO CAUSE SERIOUS HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the statute which allows the issuance of an extreme risk order prohibiting a person from possessing a firearm is constitutional. The statute is CPLR article 63-A:

CPLR 6342(1) provides, in pertinent part, that upon an application for an extreme risk protection order: “the court may issue a temporary extreme risk protection order, ex parte or otherwise, to prohibit the respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun, upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. Such application for a temporary order shall be determined in writing on the same day the application is filed.”

In determining whether there are grounds for a temporary extreme risk protection order, the court “shall consider any relevant factors,” including a nonexhaustive list of conduct by the respondent: “(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person; “(b) a violation or alleged violation of an order of protection; “(c) any pending charge or conviction for an offense involving the use of a weapon; “(d) the reckless use, display or brandishing of a firearm, rifle or shotgun; “(e) any history of a violation of an extreme risk protection order; “(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or “(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor. Matter of R.M. v C.M., 2024 NY Slip Op 01545, Second Dept 3-20-24

Practice Point: Overruling lower court precedent to the contrary, the Second Department held CPLR article 62-A, which allows issuance of an order prohibiting a respondent from possessing a firearm based upon an extreme risk of serious harm to the respondent or others is constitutional.

 

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