Opinion
Index No. 2022-1569
08-19-2022
NEW YORK STATE POLICE INVESTIGATOR JOHN DUGUID, Petitioner, v. BRANDON W. KATHAN, Respondent.
Unpublished Opinion
DECISION
HON. RICHARD A. KUPFERMAN, JUSTICE
Petitioner, a New York State Police Investigator ("State Investigator"), commenced this proceeding pursuant to CPLR Article 63-A, seeking an extreme risk protection order ("ERPO") against Respondent, Brandon W. Kathan ("Respondent"). The petition seeks to prohibit Respondent from purchasing or possessing a gun for a period of up to one year.
According to the petition and supporting papers, on July 14, 2022, the victim (Nicole) informed Respondent (then 21 years old) that her sister (Tristan) was no longer paying for the insurance on a pickup truck that he drove. In response, Respondent became enraged. He threatened to have his girlfriend and her family beat her up. He then obtained a metal baseball bat from the pickup truck and swung it at her while stating that he was going to "smash [her] head in." During the encounter, Respondent hit the deck railing with the bat, damaging it, and later punched the tailgate of the pickup truck with his fist. Respondent was reportedly "out of control" and caused the victim to be "in fear of [her] life and safety."
After the encounter, Respondent continued to harass the victim. He called 911 and reported that the victim had fired multiple rounds from a rifle at him. Respondent, however, later admitted to the police that he made up the part about the victim shooting at him. He stated that no guns were involved in the incident. He made statements that he was not in a good state of mind and needed mental help. He allegedly told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself."
Respondent was arrested in connection with the incident for Menacing in the 2nd Degree, Criminal Possession of a Weapon in the 4th Degree, and Falsely Reporting an Incident in the 3rd Degree. While in custody, he appeared to be distraught with multiple threats of self-harm and requested to speak with a mental health professional. He was later transported to Saratoga Hospital for a mental health evaluation.
Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief. As a result, on July 15, 2022, the Court issued a temporary extreme risk protection order ("TERPO") and scheduled a hearing for July 22, 2022 (see CPLR 6342; 6343). On July 16, 2022, Respondent was notified of the hearing date/time and acknowledged service.
Prior to the hearing, Petitioner conducted a background investigation into Respondent and reported the results to the Court to consider on the application, as required by the applicable statute (see CPLR 6342[9]). The background investigation revealed that Respondent had been previously arrested for Criminal Mischief in the 4th Degree on May 30, 2022 and April 15, 2021. In one instance, his aunt (Charlene) allegedly observed him throw an object at her pickup truck, damaging the front fender. When confronted, he allegedly stated to her, "how do you like that bitch." In the other instance, Respondent was allegedly caught on camera and later admitted to picking up the neighbors' chairs and planter and throwing them at 12:30 a.m. in the morning, damaging these items.
Respondent is also the subject of two orders of protection. The first is out of Hadley Town Court expiring on January 6, 2023, and the second is out of Lake Luzerne Town Court expiring May 11, 2023. He is also a listed subject on 12 separate Domestic Incident Reports from March 23, 2012 to the present.
Most of the prior reported incidents involved verbal and physical arguments with close family members. In March 2012, Respondent was reportedly "out of control," acting verbally abusive and throwing things around the house. The following year, Respondent threw a screwdriver in the general direction of his sibling. More recently, in June 2017, after his mother told him she could not drive him to the DMV that day, Respondent exhibited uncontrollable anger and punched an outdoor grill numerous times causing his hand to bleed, and then he threatened to kill everyone with a knife when they fell asleep. When a household member attempted to calm him down, Respondent slapped him in his face.
Between 2019 and 2021, Respondent's uncontrolled behavior resulted in a damaged windshield in one instance and verbal arguments easily escalating into physical violence in other instances. Further, in April 2021, Respondent reportedly told his girlfriend that if he had a firearm, he would kill himself.
In advance of the hearing, Petitioner advised the Court that the New York State Attorney General would not be representing him in this matter. By letter dated July 21, 2022, the Court informed Petitioner that if he did not have counsel, the hearing would be conducted within the parameters permitted by law. Specifically, the Court informed Petitioner that it would not allow an unrepresented investigator to present witnesses or cross examine any witnesses produced by Respondent. Subpoenaed witnesses (specifically, the victim(s) and witness(es) with personal knowledge of the underlying event) would be permitted to take the stand to tell the Court about their recollection of events in the form of a narrative. The Court advised Petitioner that it would nevertheless hear the petition and consider the papers submitted, together with any additional information gleaned from any narrative testimony from the subpoenaed witnesses.
At the hearing, Petitioner was not represented by counsel. Respondent and the two subpoenaed witnesses (the victim and her sister) did not appear. The Court then proceeded with the hearing and considered only the petition, the materials submitted in support of the petition, and the background investigation report (see CPLR 6343 [2]). In accordance with the prior letter ruling, Petitioner was prohibited from calling witnesses, introducing exhibits into evidence, and making legal arguments.
At the conclusion of the hearing, the Court reserved decision on whether the proof was sufficient to grant the petition.
The Absence of Counsel
Prior to addressing the merits, the Court will first discuss the reasons underlying its prior rulings related to the absence of counsel. As in many other cases, the police officer was statutorily required to file an ERPO petition (see CPLR 6341). However, the State (as his employer) did not provide him with legal representation. This raises the issue of whether a non-attorney police officer may appear on behalf of the State in a court of record in the absence of a counsel and, if so, the extent to which the petitioner may pursue the State's cause without counsel.
Generally, a petitioner may plead and prosecute his or her own cause personally or through counsel (see CPLR 105[c]; 321 [a]; Herczl v Feinsilver. 153 A.D.3d 1336, 1337 [2d Dept 2017]; Matter of Mulligan v Mulligan, 175 A.D.2d 335, 336 [3d Dept 1991]). This right is expressly articulated in CPLR 321(a), which governs civil proceedings before this Court.
CPLR 321 (a), however, is limited to a situation in which a party is prosecuting or defending his or her own individual interests/rights (see e.g. Alaina Simone Inc. v Madden, 200 A.D.3d 589, 590-591 [1st Dept 2021]). It does not authorize or address the situation of a State employee who has commenced a lawsuit in his representative or official capacity (see id).
Further, where a person has sought to appear or prosecute a cause for another person or entity, the courts have generally not allowed the case to proceed in the absence of counsel (see Alaina Simone Inc.. 200 A.D.3d at 590-591 ["estate representatives cannot act pro se because their own individual liberty or property interests are not involved"]; Gershon v Cunningham, 135 A.D.3d 816, 817 [2d Dept 2016] [defendant could not file a notice of appeal on behalf of another defendant]; Blunt v Northern Oneida County Landfill [NOCQ], 145 A.D.2d 913, 914 [4th Dept 1988] [husband could not appear on behalf of his wife]; Matter of Trentin v Civetta Contr., 10 A.D.2d 595, 595 [3d Dept 1960] [Workmen's compensation representative who was not a lawyer could not appear for a party in the Appellate Division]; Park v Song, 61 Misc.3d 1047, 1049 [Sup Ct, New York County 2018] [derivative plaintiff asserting the rights of the corporation/LLC had to be represented by counsel]). "These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court" (Pridgen v Andresen, 113 F.3d 391,393 [2d Cir 1997]).
In fact, the Judiciary Law makes it unlawful for a person who is not a licensed attorney "to practice or appear as an attorney-at-law ... for a person other than himself or herself in a court of record in this state" (Judiciary Law § 478 [emphasis added]; see also Judiciary Law § 484 [prohibiting any natural person who is not a licensed attorney from asking or receiving, "directly or indirectly, compensation for appearing for a person other than himself as attorney in any court" (emphasis added)]). "[T]his prohibition is intended to protect citizens 'against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work'" Jemzura v McCue. 45 A.D.2d 797, 797 [3d Dept 1974] [citation omitted]).
There are certain exceptions to these rules. For example, in People v Black (156 Misc. 516 [County Court, Otsego County 1935]), the defendant was convicted of a violation of the game laws, a misdemeanor. On appeal, the defendant contended that the case was improperly prosecuted by an inspector of the Conservation Department, a person not licensed to practice law. In affirming the judgment, the court rejected the defendant's contention, explaining:
"We do not believe that the Legislature of this State sought to bring about so absurd a situation as is here presented. If it were intended that every time a rabbit be snared or a frog speared after dark that the heavy artillery of the offices of the Attorney-General or the district attorney be wheeled into action, then the said Legislature was flying in the face of common sense and upsetting a century-old institution."
Similarly, the Court of Appeals, as well as the courts of other states, have held that a police officer may prosecute minor offenses (see People v Soddano, 86 N.Y.2d 727, 728 [1995]; People v Van Sickle, 13 N.Y.2d 61, 62-66 [1963]; People v Czaika. 11 N.Y.2d 253, 254 [1962]; State v Sossamon. 298 S.C. 72, 378 S.E.2d 259 [South Carolina 1989]; State v La Palme, 104 NH 97, 179 A.2d284 [New Hampshire 1962]).
The reasoning expressed (if anything) for allowing a non-attorney to prosecute or present a case is often necessity, statutory authority, the simplicity and informal nature of the proceedings, and/or the long history of such practice (see People v Black, 156 Misc. at 516; see also State v Barlow. 372 S.C. 534, 643 S.E.2d 682 [South Carolina 2007]; Leverette v State, 248 Ga App 304, 546 S.E.2d 63 [Georgia Ct App 2001]; Noethtich v State, 676 N.E.2d 1078 [Indiana Ct App 1997]).
Notwithstanding, such matters have still been the subject of some debate. In State ex rel. McLeod v Seaborn (270 S.C. 696, 244 S.E.2d 317 [South Carolina 1978]), for example, the dissenting opinion discusses the dangers of such a practice given the complexity of the law and the various ethical issues that arise from allowing police officers to act as prosecutors.
In addition to the exceptions decided under the case law, there are also additional exceptions expressly set forth in varying statutes (see Judiciary Law § 478; N-PCL § 1403 [b][2] [providing statutory authority for a not-for-profit corporation for the prevention of cruelty to animals to represent itself in certain cases]; Workers' Compensation Law § 24-a [requiring non-attorney representative to be licensed by the Workers' Compensation Board]; Labor Law § 538 [requiring authorized agents to be registered in order to represent individuals in proceedings before the appeal board]; State Administrative Procedure Act § 501 ["Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency."]; see also Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd.. 233 A.D.2d 602 [3d Dept 1996] [holding that the representation of an association by a non-attorney during an administrative hearing did not violate Judiciary Law § 478, which applies only to courts of record]).
In determining whether statutory authority exists for an exception, the decision in Matter of Sharon B (72 N.Y.2d 394, 396-401 [1988]) is most informative. There, the Court of Appeals held that a not-for-profit corporation for the prevention of cruelty to children could file a complaint and represent itself during the proceedings, without having to retain counsel. The applicable statutes at the time provided that these societies could "prefer a complaint" before the court and "may aid in presenting the law and facts to such court[.]" The Court noted that "prefer" is commonly defined to include not only instituting a case but also prosecuting, trying and proceeding with such. In addition, the Court relied on the plain language of Judiciary Law §§ 478 & 484, which at the time exempted from its general prohibition certain cases brought by "officers of societies for the prevention of cruelty" (Matter of Sharon B., 72 N.Y.2d at 399).
Notably, the Legislature later amended these statutes (see L 1993, ch 201). The exception for "societies for the prevention of cruelty" in Judiciary Law §§ 478 & 484 is now limited to "societies for the prevention of cruelty to animals" (emphasis added). In addition, N-PCL § 1403(b)(2), in its current form, provides that "[a] corporation formed for the purpose of preventing cruelty to children, when represented by an attorney duly admitted to the practice of law, may prosecute a complaint before any court ..., and may aid in presenting the law and facts to such court ..." (emphasis added).
Considering the circumstances of this case, the Court finds that CPLR 321(a) does not authorize the Petitioner to proceed with prosecuting this matter as if he were a party acting on his own behalf. The Petitioner is not actually representing himself in his individual capacity. Rather, he is suing in his official capacity and representing the larger interests of the State to promote the health, safety, and welfare of the public.
As discussed above, the Petitioner's right to file this petition derived solely from his status as a police officer and his duty to file a petition as a police officer (see CPLR 6341). Petitioner, moreover, has also received compensation from his employer for engaging in this litigation. He is not acting out of his own sense of personal responsibility. The State could have also certainly tendered counsel for his representation, however, it simply chose not to do so in this case (see Executive Law § 63[1]).
The Attorney General's Office has represented police officers (employees of the New York State Police) during red flag hearings conducted before this Court in two other cases. In contrast, counties and cities are responsible for providing representation for their police officers (see e.g. County Law § 501 ["The county attorney shall be the legal advisor to ... every officer whose compensation is paid from county funds in all matters involving an official act of a civil nature. The county attorney shall prosecute and defend all civil actions and proceedings brought by or against the county, the board of supervisors and any officer whose compensation is paid from county funds for any official act...."]).
Notwithstanding, the Petitioner most certainly had the capacity and standing to commence this proceeding. The CPLR denominates a police officer as a proper party to the case ("see CPLR 6340; 6341). In fact, police officers are not only authorized to file such petitions, but they are in fact required to do so when probable cause exists to support such applications (see CPLR 6341). The CPLR further requires the courts to adopt forms that may be used by police officers for these applications, and the standard forms have a line expressly for a petitioner to sign rather than his or her counsel, if any (see id.).
The superintendent of state police is also required to provide all members of the New York State Police with written policies and procedure and educational materials regarding the availability of and procedure for filing ERPOs, including the requirements for police officers to do so when probable cause exists (see Executive Law § 214-h). The CPLR also permits the Court to grant a temporary order based solely on the initial petition and other supporting materials submitted with it, without a hearing (CPLR 6342). The CPLR further permits the Court to grant a final order based on the petition, the supporting papers, and the background investigation report, even when no other evidence is presented at the hearing (CPLR 6343).
When considering these circumstances, along with the urgency of these petitions and the short time periods involved in such cases, the Court concludes that the Legislature has in fact authorized the Petitioner to file his petition without counsel and that the Court may reach the merits of the petition even in the absence of a prosecutor/counsel in the case (compare Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 A.D.3d 452 [1st Dept 2012]).
Moreover, given the circumstances, the Court does not find that the police officer engaged in the practice of law by completing the official forms and filing them with the Court. Nor was it the practice of law when the police officer provided his investigation materials to the Court to consider in connection with the petition, as they are materials which are normally prepared by police officers in the performance of their duties.
Glaringly absent, however, is any statutory language authorizing the non-attorney police officer to act as the prosecutor in the case or otherwise serve as the State's legal representative (compare Matter of Sharon B.. 72 N.Y.2d at 396-401; Matter of Darlene C. 247 Conn 1, 717 A.2d 1242 [Connecticut 1998]). The Court finds that this deficiency is critical. Indeed, if the Legislature had intended to allow a police officer to fully prosecute a red flag case and act in the same manner as an attorney during the evidentiary hearing, the Legislature should have specifically stated that to be the case.
The statutes at issue for example do not use the much broader language in Matter of Sharon B. Rather, the statutes at issue use the word "file" rather than "procure" and omit any reference to "aid[ing] in presenting the law and facts to [the] court[.]" In addition, the Judiciary Law also does not carve out an exception for a non-attorney police officer to prosecute a civil case. Nor is there any long-standing body of case law allowing a police officer to engage in such conduct.
Further, the benefit and need for a prosecutor should not be lightly set aside. Unlike a case involving a traffic ticket or petty crime in local criminal court, a red flag case involves a civil proceeding in the highest trial-level court for civil cases in this State's court system. There are also significant liberty interests at stake, namely, a respondent's fundamental constitutional right to keep and bear arms (see U.S. Const, 2nd Amend). A respondent is entitled to a full evidentiary hearing and the right to cross examine witnesses (see CPLR 6343). The proceedings may require motion practice, in person testimony, cross examination, and the presentation of legal arguments. A petitioner is also required to prove his or her case by clear and convincing evidence to obtain the relief requested (see CPLR 6343 [2]).
A non-attorney police officer (even if highly competent such as the Petitioner in this case) is not trained to handle such legal matters, just as an attorney is not trained to make arrests and conduct police investigations. When such legal matters arise, this Court must therefore limit a police officer's participation in the case to avoid a violation of Judiciary Law §§ 478 & 484. This of course places a petitioner at a significant disadvantage, especially in a case where the respondent retains counsel or elects to testify on his or her own behalf. Notwithstanding, even in the absence of counsel, the Court will still entertain the petition and decide the case on its merits.
Merit Analysis
Notwithstanding the lack of any witnesses called to testify, as indicated above, the statute permits the Court to base its decision on the contents of the petition, supporting papers, and background investigation report (see CPLR 6343[2]). The Court must therefore consider whether these materials are sufficient to grant the petition.
To obtain a final ERPO for a period of up to one year, the petitioner must establish that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others (see CPLR 6343 [2]). There must be either, "1. substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a]; see CPLR 6343 [2]).
This one-year period may be extended for an additional period upon application (see CPLR 6345).
In deciding the issue, the Court must consider various factors or so-called red flags, taking into consideration the date when the event(s) occurred and the age of the person at the time (see CPLR 6342[2]; 6343[2]). Such red flags include, but are not limited to, the following acts of the respondent:
"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;
(b) a violation or alleged violation of an order of protection;
(c) any pending charge or conviction for an offense involving the use of a weapon;
(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;
(e)a ny history of a violation of an extreme risk protection order;
(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or
(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor" (CPLR 6342[2]).
Unlike a temporary order (TERPO), a petitioner seeking a final order (ERPO) has the j burden of proving his or her case by clear and convincing evidence (see CPLR 6343 [2]). This is a higher and more demanding standard than the preponderance of the evidence standard (see Matter of Duane II. [Andrew H.]. 151 A.D.3d 1129. 1130-1131 [3d Dept 2017]).
To satisfy this standard, the evidence must make it "highly probable that what [he or she] claims is what actually happened" (PJI 1:64; see Matter of Duane II. [Andrew II.], 151 A.D.3d at 1130-1131; Prince, Richardson on Evidence § 3-205 [11th ed]). This requires "evidence that is neither equivocal nor open to opposing presumptions, and it forbids relief whenever the evidence is loose, equivocal, or contradictory" (Matter of Monto v Zeigler, 183 A.D.3d 1294,1295 [4th Dept 2020] [internal quotation marks and citations omitted]; see Matter of Duane II. [Andrew II.], 151 A.D.3d at 1130-1131).
Here, the proof was clear that Respondent is and has been for quite some time violent and mentally unstable. Last month, in a fit of rage, he acted irrational and displayed uncontrollable anger when he threatened to bash his family member's head in with a baseball bat. He aggressively advanced towards the victim with the metal bat, swung it at her, and hit the deck railing with it. In the victim's words, Respondent was "out of control" and caused her to be "in fear of [her] life and safety."
Afterwards, Respondent further confirmed his own mental instability by acknowledging that he was not in a good state of mind and needed mental help. He made multiple threats of self-harm and told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself."
In addition to the incident last month, Respondent currently has two current orders of protection against him, with pending charges for other recent crimes resulting from the intentional destruction of personal property. He has used abusive and threatening language toward his victims, calling his aunt in one instance a "bitch." He has been involved in multiple instances over the years involving verbal arguments that easily escalated into physical violence. He has thrown items at people, hit them, threatened them, punched objects, and destroyed property. In one instance, he went so far as to threaten to kill everyone with a knife when they fell asleep. As recently as April 2021, he also commented that if he had a firearm, he would kill himself.
Now, just last month, the Court is presented with a situation in which Respondent has once again displayed uncontrollable anger and unprovoked violent behavior, threatening to murder the victim. Again, just last month, he has expressed threats of self-harm and complaints of mental instability.
In response to the evidence against him, Respondent has failed to dispute the circumstances surrounding the current incident or any of the prior instances. Nor does he dispute that he has two pending orders of protection against him and pending criminal charges against him involving violence. As such, the allegations are unrefuted.
Based on the record, the Court finds that the evidence in this case was strong enough to satisfy the high standard of proof required. The petition is therefore granted. Nevertheless, the Court cautions that this may not have been the final decision in this case had Respondent appeared, retained counsel, testified, presented evidence, or otherwise defended against the allegations made against him.