The “red flag law” is a Civil Order effectively
circumventing the Right to Counsel under the Sixth Amendment of the United States Constitution. There are
Fourth Amendment concerns as well, because it alters the burdens required for a lawful search and seizure that exist in a criminal proceeding under the CPL. The respondent (and potential future criminal defendant) is not represented by counsel during the ex-parte proceeding even though the result of the issuance of the TERPO may be search warrants. Further, the law requires a respondent to sign a receipt for guns surrendered and/or anything recovered during a search admitting possession thereof, whether or not the items are lawfully possessed. For example, if an illegal gun is recovered pursuant to a search authorized pursuant to a TERPO
, the unrepresented person is required to sign a receipt for the item but not advised as to the implications of doing so or of his or her constitutional right to remain silent. The respondent will then be prosecuted in criminal court for the unlawful possession of a firearm, which may be a misdemeanor or felony charge, both of which carry with them the potential for terms of incarceration.Since this ex parte application can be made by law enforcement or lay people and
the supporting deposition can be based on uncorroborated double or even triple hearsay,7it bypasses the Criminal Procedure Law’s standard of proof required for a search warrant under CPL § 690, thereby eviscerating the established standard of proof required for the admissibility of evidence in a criminal case. Further, upon the issuance of a final extreme risk protection order, CPLR 6343(3)(d) provides that:[a]s part of the order, the court may alsodirect a police officer to search for firearms,rifles and shotguns in a respondent’s possession consistent with the procedures ofarticle six hundred ninety of the criminalprocedure law.The language of CPLR 6343
permits a search to be ordered by the judge without a warrant issued pursuant to CPL § 690. The use of the word “may” in this section of Article 63-A merely permits the authorization of a search warrant that comports with the procedures of Article 690 of CPL but does not require it.The search as it is authorized under CPLR 6342
provides no parameters as to the time frame in which the search may be executed. It does not limit the number of times searches may be conducted. Although the statute provides for an order that must be issued by the court, there are no additional directives in the black letter law that require the TERPO to set forth parameters for the execution of a search in the statute.
It flouts the standard set out in the Criminal Procedure Law’s for a search warrant and the myriad case law that has been developed protecting individual’s Fourth Amendment Rights.8Upon issuance of this Temporary Order,
the unrepresented respondent is required to voluntarily surrender all of his firearms. Even upon this surrender, law enforcement is authorized to conduct a search of the respondent’s person and home upon (any) reason to believe an enumerated listed weapon is still in the respondent’s possession. CPLR 6342 states that the temporary order itself must include a form to be completed and executed by the unrepresented responded which must list all the “firearms, rifles and shotguns possessed by him or her and their particular locations.”9 As noted above, r
equiring a respondent to sign a receipt for items either surrendered or recovered violates a person’s right to self-incrimination in that if the weapons surrendered or recovered are illegally possessed, the respondent will be prosecuted criminally. See, U.S. Const. Amend. V