EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.