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State eyes expansion of red flag notices

New York state is poised to expand statewide notification of temporary extreme risk protection orders.

Otherwise known as a ‘red flag’ order, there are typically several extreme risk protection orders in state Supreme Court in Chautauqua County at any one time, with the cases appearing regularly on court dockets as they are either extended or dismissed. Since 2019, there have been 138 Chautauqua County residents who have had a temporary or final extreme risk protection order filed against them, according to information posted on the state court system’s website.

Currently, statewide databases are only notified of a red flag seizure of a person’s weapons if a temporary red flag order is converted into a final red flag order after a court hearing. So far this year, there have been 31 applications filed in state Supreme Court in Mayville and 29 temporary red flag orders have been approved by the court. But not all temporary red flag orders become permanent orders. So far this year, there have been 35 temporary red flag orders and 29 permanent orders.

Legislation (A.5873/S.3340) passed earlier in the state legislative session by the state Senate and passed last week by the state Assembly will require courts like state Supreme Court in Mayville to file paperwork so that temporary and final extreme risk protection orders are included in the existing statewide computerized registry of orders of protection and warrants of arrest.

“Current law requires judges to notify the division of State Police, law enforcement agencies with appropriate jurisdiction, applicable licensing officers, and the Division of Criminal Justice Services of the issuance, the amendment or revocation of a temporary and or final extreme risk protection order,” said Assemblyman Charles Lavine, D-Glen Cove.

“There is, however, no requirement that judges provide notice of these orders to the statewide computerized registry. The statewide computerized registry is a centralized database of all court orders of protection and outstanding warrants that is accessible by state and local law enforcement, the Division of Criminal Justice Services, the Office of Court Administration, and the Office for the Prevention of Domestic Violence.”

The legislation passed in the Assembly by a largely party line vote, 105-41, with both Assemblymen Andrew Goodell, R-Jamestown, and Joseph Giglio, R-Gowanda, both voted against the bill. The Senate vote was 47-13 with Sen. George Borrello, R-Sunset Bay, voting against.

Goodell argued the inclusion of a temporary extreme risk protection order to statewide databases is a violation of a defendant’s due process rights.

“A few years back we passed this concept of a temporary extreme risk protection order,” Goodell said. “And there was considerable opposition to a temporary extremist protection order because it was issued without the defendant even being there. It’s a temporary order that was issued by a judge based on probable cause, which means more likely than not – it’s a very low standard. And it was issued without notice to the defendant. No opportunity to be heard. The due process criteria for issuing a temporary extreme risk order of protection is virtually zero. … And this bill takes that one step further and says even though this extreme risk protection order was issued without the defendant even having an opportunity to be heard ,without any hearing, on a low standard we’re going to put it on a statewide database.”

Lavine said in his legislative justification that the additional notification will allow law enforcement and other authorities to more easily access public safety records to ensure compliance with court orders across the state. Extreme risk protection orders are legal devices designed to increase public safety by preventing a person who demonstrates danger to themselves or others from purchasing and possessing firearms, in addition to requiring the person to surrender any firearms they already own or possess. A temporary extreme risk protection order is

issued by a petitioner’s local Supreme Court, and if issued, must be followed until the judge listens to both sides at a hearing to determine whether a final ERPO shall be issued. That hearing usually takes between three and 10 days after an initial application is filed. A final extreme risk protection order can remain in force for up to a year before it is renewed or terminated by a judge. At that point a defendant can apply to have firearms returned.

Goodell said he would prefer to have notification only after a final order is issued.

“Now my feelings about a statewide database once a final order is very different, because a final order is only issued after a hearing, after an opportunity for the defendant to appear, after the defendant can come in with an attorney, and it requires clear and convincing evidence,” Goodell said. “That is an entirely different situation. So we’re asked here today to create a statewide database documenting a person’s name, sexual orientation, gender ID, gender expression and which one of any of 24 Asian countries they might come from without them even having an opportunity to be heard or defend themselves. That my friends is outrageous and for that reason I cannot support it.”

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