A Yellow Light for New York’s Red Flag Law in Criminal Prosecutions: Contextualizing the Fruits of New York Extreme Risk Protection Orders

Authors

Isabella Glassman

Abstract

Public concern over gun violence grabs the news headlines, highlighting mass shootings at schools and suicide rates, amongst other gun-related problems. Twenty-three states in the United States turned to red flag laws to proactively address these gun violence issues. New York is one such state. The crux of New York’s Red Flag Law is the extreme risk protection order (ERPO), which is a civil court order that prevents respondents to ERPO proceedings from possessing or attempting to possess a firearm, rifle, or shotgun for up to one year. This civil court order, however, could slip into the realm of criminal law if an ERPO search or surrender of weapons leads law enforcement to discover an illegal weapon. ERPO respondents, foreseeing potential criminal implications of the ERPO, have challenged the New York statute in state courts, arguing that the firearm, rifle, or shotgun search and surrender processes are unconstitutional. In terms of the search process, challenges stem from questions over whether the current statute allows for unreasonable searches under the US Constitution’s Fourth Amendment and New York State Constitution’s Article I, Section 12. Concerns over the surrender process center on whether the requirement that a respondent list what firearms they possess to law enforcement officers violates the Fifth Amendment right against self-incrimination. This Note proposes that to ensure New Yorkers constitutional rights are protected, the ERPO statute should be amended so the search process clearly conforms with New York’s Criminal Procedure Law. Further, law enforcement and ERPO respondents alike should be better informed about when the fruits of an ERPO can lawfully prompt a criminal prosecution, protecting the right against self-incrimination. With these changes, ERPOs would have the potential to reduce gun violence while still supporting criminal prosecutions in limited situations where respondents are fully informed and fully protected by the law.

Recommended Citation

Isabella Glassman, A Yellow Light for New York’s Red Flag Law in Criminal Prosecutions: Contextualizing the Fruits of New York Extreme Risk Protection Orders, 90 Brook. L. Rev. 1345 (2025).
Available at: https://brooklynworks.brooklaw.edu/blr/vol90/iss4/8