BILL NUMBER: S260
SPONSOR: MARTINEZ
 
TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to extreme
risk protection orders
 
PURPOSE:
To provide district attorneys and law enforcement discretion in filing
an application for an extreme risk protection order in situations where
a respondent is currently prohibited from possessing a firearm, rifle or
shotgun; and to clarify the standard the court must find for the issu-
ance of an extreme risk protection order.
 
SUMMARY OF PROVISIONS:
Section 1: Adds a new paragraph S to § 6340 of the Civil Practice Law
and Rules ("CPLR") to define exceptions.
Section 2: Amends § 6341 of the CPLR to allow district attorneys and
police officers discretion to file an application for an extreme risk
protection order if an exception exists.
Section 3: Amends § 6342 of the CPLR to define the risk of harm the
court must find for the issuance of a temporary extreme risk protection
order.
Section 4: Amends § 6343 of the CPLR to define the risk of harm the
court must find for the issuance of a final extreme risk protection
order.
Section 5: Establishes the effective date.
 
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