BILL NUMBER: S260A
SPONSOR: MARTINEZ
 
TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to extreme
risk protection orders
 
SUMMARY OF PROVISIONS:
Section 1: Amends § 6340 of the Civil Practice Law and Rules ("CPLR") to
clarify deputy sheriffs as possible petitioners and further clarifies
the definition of a respondent to include those aged 12 and older,
aligning with existing statutes that allow for legal access to firearms
beginning at this age under New York State law (Penal Law §§ 265.05,
265.20(4); ECL § 11-0701(1)(a)) to ensure ERPO protections extend appro-
priately to those legally capable of possessing firearms.
Section 2: Amends § 6341 of the CPLR by eliminating all references to
§ 9.39 of the Mental Hygiene Law to avoid unintended implications and
streamline applicability. Additionally, exception language is added to
afford greater discretion to law enforcement in cases involving:
*Certified mentally incompetent individuals, maintaining the existing
language
*Situations where an ERPO is already in place
*Respondents currently incarcerated with an expected release date beyond
the expiration of the ERPO
*Minors under 18 where the sole concern is self-harm, with no threats to
others or a school, no firearm references, and no firearms in the home.
This modification raised the age from 16 in the original bill to 18 in
this proposed legislation to provide additional discretion to law
enforcement.
To strengthen the jurisdictional application of ERPOs, clarifications
were made to confirm ERPO protections extend to out-of-state respondents
whose harmful actions have repercussions within New York State. This
ensures the enforcement of ERPO provisions beyond geographical bounda-
ries when necessary for public safety. Further procedural enhancements
include recognizing CPLR 2106 for ERPO applications, eliminating the
notary requirement to facilitate timely emergency filings, especially
during late-night incidents. Additional clarifications underscore the
appropriate evidentiary weight to be given to hearsay in ERPO
proceedings.
Section 3: Amends 6342 of the CPLR by removing references to the mental
hygiene law and defining the risk of harm the court must find for the
issuance of a temporary extreme risk protection order. It is also clari-
fied the court shall not consider the discretion of a petitioner's
previous discretion in declining to file a temporary extreme risk
protection order against respondent. Additional clarifications under-
score the appropriate evidentiary weight to be given to hearsay in ERPO
proceedings.
Section 4: Amends § 6343 of the CPLR by removing references to the
mental hygiene law and defining the risk of harm the court must find for
the issuance of a final extreme risk protection order. It also adds
those with a temporary extreme risk protection order can waive their
rights to a hearing and consent to a final extreme risk protection
order.
Section 5: Amends § 6344 of the CPLR to make conforming changes to clar-
ify deputy sheriffs can be petitioners.
Section 6: Amends§ 6345 of the CPLR by removing references to the mental
hygiene law and defining the risk of harm the court must find for a
renewal of an extreme risk protection order. It is also clarified the
court shall not consider a petitioner's previous discretion in declining
to renew an extreme risk protection order against a respondent.
Section 7: Amends § 6346 of the CPLR to make conforming changes to clar-
ify deputy sheriffs can be petitioners.
Section 8: Establishes the effective clause.
 
JUSTIFICATION:
The adoption of Article 63-A "Red Flag Law" of the CPLR was an important
step in combating gun violence in New York State. Allowing persons to
seek an "extreme risk protection order" to remove firearms from the
possession of someone who is an imminent risk to themselves and others
will save lives.
The amendment to the statute adopted in 2022 to mandate the filing of an
application for an extreme risk protection order by district attorneys
and police officers, was a valid response to concern regarding the exer-
cise of discretion, however the statute makes no exceptions for individ-
uals who are already prohibited from possessing firearms, rifles and
shotguns, and the redundancy of such applications and hearings overbur-
dens resources. The reinstating of discretion in limited circumstances
is warranted and would provide fiscal relief to the agencies and judi-
cial system.
A recent court decision (G.W. v. C.N., 78 Misc.3d 289 (2022)) demon-
strates that the legislative intent in defining the standard of risk
that the court must find to issue an extreme risk protection order, by
referencing a definition in Mental Hygiene Law (§ 9.39(a)(1) or (2)) has
been misconstrued to require that the procedure outlined in that Article
must be followed as well as the procedure outlined in CPLR /Article
63-A. To avoid that misinterpretation, Article 63-A of the CPLR Article
is amended to define the risk and remove the reference to Mental Hygiene
Law.
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S260: 6340 civil practice law, 6341 civil practice law, 6342 civil practice law, 6342(1) civil practice law, 6343 civil practice law, 6343(2) civil practice law
S260A: 6341 civil practice law, 6344 civil practice law, 6344(1) civil practice law, 6345 civil practice law, 6346 civil practice law, 6346(1) civil practice law