Opinion
Index No. 2024-683
05-10-2024
Inv. Daniel J. Kelly, III, NEW YORK STATE POLICE-SP HIGHLAND, Petitioner, v. E.R., Respondent.
Suzette Corinne Merritt, Esq., Assistant Attorney General, New York State Office of the Attorney General Extreme Risk Protection Order Unit.
Suzette Corinne Merritt, Esq., Assistant Attorney General, New York State Office of the Attorney General Extreme Risk Protection Order Unit.
JULIAN D. SCHREIBMAN, JSC
This is a special proceeding under New York's "Red Flag" law (CPLR Art. 63-A) brought by petitioner Daniel Kelly, Investigator with the New York State Police ("State Police"), seeking the issuance of an Extreme Risk Protection Order ("ERPO") against respondent E.R. [Name Redacted]. This case raises the question of whether an ERPO may issue, even though the evidence presented falls far short of the statutory standard, because the respondent executed a form, out of court, waiving his right to a hearing and consenting to the entry of the ERPO. The Court concludes that the law does not permit the issuance of an ERPO on that basis. Accordingly, the petition is denied and the temporary ERPO vacated.
Procedural History
The events that gave rise to the ERPO application took place on March 11, 2024. That night, petitioner filed an emergency, overnight application for a temporary ERPO which was promptly granted by the Hon. Kimberly O'Connor, AJSC, who also scheduled a hearing on the ERPO for March 19, 2024. On March 12, 2024, the State Police served respondent with the temporary ERPO. Simultaneously, respondent was presented with a "Waiver of Hearing and Consent to Extreme Risk Protection Order," which he signed (the "First Waiver"). Thereafter, petitioner formally filed the ERPO application with the Ulster County Clerk and the case was assigned to this Court.
On March 13, 2024, the Office of the Attorney General for the State of New York ("AG"), as counsel to the petitioner, submitted a copy of the First Waiver to Chambers via e-mail, ex parte, and inquired whether the Court would (a) accept the First Waiver and issue an ERPO thereupon without need for the scheduled hearing, or (b) require the Assistant AG to appear at the hearing to place the consent on the record, or (c) require all parties to appear at the hearing, notwithstanding the First Waiver. Having examined the petition, the Court informed the AG that it would require all parties to appear for the hearing. This necessarily created mixed signals to the respondent, who would now need to be told to appear, because the petitioner obtained the waiver of his appearance before finding out from the Court whether the waiver would be accepted.
The Court convened the hearing on March 19, 2024. The respondent did not appear. Concerned that the respondent might not have understood that he was expected to appear due to his execution of the First Waiver, the Court deemed him to have requested an adjournment and reset the hearing date to April 10, 2024. The same day the Court issued a written Order (the "March 19 Order") containing the new hearing date, extending the expiration date of the temporary ERPO to April 30, 2024, and directing petitioner to serve respondent with the March 19 Order.
On April 8, 2024, the Assistant AG submitted to Chambers, again via ex parte e-mail, proof of service of the March 19 Order on the respondent and a new waiver and consent form executed by the respondent earlier that day ("Second Waiver"). The Assistant AG reported that the respondent had told the Trooper serving the March 19 Order that he did not want to attend the hearing. The Assistant AG further advised that the respondent had been given Chambers' e-mail and telephone numbers. Chambers received no communications from respondent.
Respondent did not appear for the April 10, 2024 hearing. The Court opened the record but continued the hearing to April 30, 2024, without taking evidence. On April 11, 2024, the Court issued another scheduling Order (the "April 11 Order"), reviewing the procedural history, extending the expiration date of the temporary ERPO to May 31, 2024, and confirming the April 30, 2024 hearing date. A copy of the April 11 Order was promptly mailed to the respondent at his home.
On April 30, 2024, the Court conducted an evidentiary hearing in this matter. The respondent did not appear nor did he communicate in any way with the Court prior to the hearing date.
The Hearing
The evidence presented in support of the ERPO established that Fidelis Health Care ("Fidelis"), an insurance provider, contacted Ulster County 911 on March 11, 2024. Fidelis reported that one of its representatives had been on a telephone call with the respondent during which respondent allegedly stated that he was "homicidal." In response to the 911 call, New York State Trooper Brittany Giuliano responded to the respondent's residence, a boarding house known as [Residence Name Redacted] in the Town of Esopus, Ulster County.
Trooper Giuliano testified that she found the respondent, a 29 year old male, sitting in front of the house listening to music. The respondent was unaware that anyone had placed a 911 call and was, therefore, not expecting law enforcement to appear at his home. Nevertheless, Trooper Giuliano described respondent as calm and polite. When the Trooper reported the substance of Fidelis' allegation, the respondent stated that he had been asked whether he was feeling "suicidal or homicidal." Respondent claimed that he had misunderstood this as an "either/or" question, that he wasn't certain what "homicidal" meant, but knew he wasn't feeling suicidal, so he chose homicidal. After some further questioning, however, respondent acknowledged that he basically understood what homicidal meant and indicated he'd been having some disputes with his roommates. Respondent agreed to be transported to Health Alliance Hospital in Kingston for a psychiatric evaluation and was kept there for at least one night.
In addition to Trooper Giuliano's testimony, petitioner offered in evidence both the First Waiver (Ex.2) and the Second Waiver (Ex.1), as well as the court-ordered background report (Ex.3). That report indicates that respondent was convicted of misdemeanor assault in the Town of Esopus Justice Court in August 2023, and that he is the subject of a "refrain from" (i.e., "no harass") order of protection issued by the same court with respect to a single individual. That order of protection expires on June 5, 2024. The AG submitted that the protectee is likely the victim of the assault charge but this is not explicit in the record. Similarly, this does not appear to be a case of domestic/intimate partner violence, but no further information is set forth in the background report. Respondent has not violated the order of protection and apparently has no other criminal history.
No firearms or other weapons were seized in the case. Petitioner does not dispute that respondent does not own or possess any guns.
There are a number of shortcomings to the evidence marshalled by the petitioner. Most significantly, other than ambiguous references to disputes with his roommates, respondent did not make any admissions regarding a desire or intent to hurt himself or others. The origin and context of the purported disputes was not further explored. Petitioner did not take a written statement from the respondent. The State Police did not interview any other residents at [Residence name redacted], nor did they even obtain the names of the persons with whom respondent was allegedly having issues. Petitioner did not identify any family members or friends of respondent who could provide information regarding his behavior or mental state. Petitioner did not contact the protectee named in the order of protection. Petitioner also did not obtain any of the underlying documents, such as police reports or charging instruments, related to respondent's 2023 misdemeanor assault. Petitioner did not take a statement from or call as a witness the Fidelis employee whose conversation with respondent sparked the investigation. Petitioner did not seek to obtain any mental health records of the respondent. Indeed, despite having initiated the evaluation on March 11, 2024, to the Court's knowledge, the petitioner has not sought or obtained any information on the results of that referral. Although petitioner believes respondent has previously obtained mental health treatment (and that this was the reason he was on the phone with Fidelis in the first place), petitioner did not ask respondent to disclose anything about his mental health history including the identity of any treatment providers. For that matter, petitioner obtained respondent's signature on the First Waiver while he was still at the hospital yet failed to ask him to sign a waiver permitting petitioner to obtain his records from that visit or other recent events, if any.
Analysis
To obtain an ERPO, petitioner must prove his case by clear and convincing evidence. "Clear and convincing evidence is a higher, more demanding standard than the preponderance standard and it is evidence that is neither equivocal nor open to opposing presumptions." [ In re Duane II, 151 A.D.3d 1129, 1131 (3rd Dept. 2017)(internal quotation marks and citation omitted)]. The evidence presented here does not come close to establishing, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself or others. In particular, as the Court has repeatedly emphasized to the AG at ERPO hearings, it is extremely difficult to reach such a conclusion where the petitioner fails to call as a witness a single person who actually knows the respondent, such as a family member, neighbor or treatment provider.
Moreover, the respondent's failure to appear, in and of itself, does not permit the Court to enter the ERPO on default. As with other civil proceedings, such as a motion for summary or default judgment, the petitioner here must still establish that it is entitled to relief. The issue, then, is whether the Court should nevertheless enter the ERPO against respondent based on the fact that he executed not just one, but two, express consents.
Speaking in the mandatory language of "shall," the ERPO statute requires the Court to conduct a hearing to "determine" whether an ERPO should issue. (CPLR §6343[1]). The statute does not contain any provision for, or discussion of, waiving or otherwise dispensing with the hearing. The state legislature is quite capable of providing a mechanism for dispensing with a hearing, even in cases involving mental health and potential liberty deprivations. (See, e.g., Surrogate Court Procedures Act §1754 [providing that court "shall" conduct a hearing on the appointment of a guardian for intellectually or developmentally disabled persons but "may in its discretion dispense with a hearing" when certain criteria are met]). It has not done so here.
The Court considers the framework of that portion of the Mental Hygiene Law providing for Assisted Outpatient Treatment ("AOT law") instructive. (Mental Hygiene Law §9.60). That law, adopted in 1999, permits a court to order a respondent to accept mental health treatment, including medication, as an outpatient. Before it may issue such an order, a court must make a series of factual findings, under a clear and convincing evidence standard. (Id. §§9.60[c], [j][1]). Such findings must be made upon a hearing, with certain forms of evidence required, and at which the respondent has the right to counsel and other procedural rights. These procedural mandates were essential to the Court of Appeals' determination that the AOT law met constitutional due process muster. (In re K.L., 1 N.Y.3d 362 [2004]). Significantly, in finding that the AOT law's procedures sufficiently protected the subject's rights, the Court noted that, although an AOT order curtailed an individual's right to refuse treatment, the restrictions on the subject's freedom were "minimal" because "a violation of the order, standing alone, ultimately carries no sanction." (1 N.Y.3d at 370). In contrast, violation of an ERPO could easily expose the subject to criminal prosecution.
This is also referred to as "Kendra's Law."
In practice, recognizing the benefit of the treatment and services offered, AOT respondents frequently consent to the entry of an AOT order. Such consent, however, does not negate the need for a hearing so that the court may make the required findings of fact. (See In re K.L., 1 N.Y.3d at 373 [order cannot issue without "judicial findings by clear and convincing evidence" following a hearing]). As a result, while the consent will be received and considered by the Court, the hearing is still held and the Court must be satisfied that the petitioner has met the evidentiary burden. (See Gracie Square Hospital v Jesglar C., 43 Misc.3d 638 [Sup.Ct. NY Cty. 2014]["urg[ing] the legislature to consider eliminating the need for a full blown hearing in instances where the patient consents to AOT"]).
The purpose of the AOT law is very similar to that of the Red Flag law: to protect the community from the potentially dangerous actions of a person whose mental state may incline them to act violently toward themselves or others. (See In re K.L., 1 N.Y.3d at 371 [state has compelling interest in ensuring a person does not engage in conduct "likely to result in serious harm to self or others"]). Both thus represent a government intrusion into a respondent's liberty for the safety of the respondent and the public. There are overlaps in the required findings (see MHL §9.60(c)(6)) and the evidentiary standard - clear and convincing - is the same. And, like the Red Flag Law, the AOT statute does not provide for any waiver of the hearing or short-cut around the fact-finding process.
Cases that have upheld the constitutionality of the Red Flag law have also emphasized the due process safeguards in the statute including, particularly, a hearing conducted under a clear and convincing evidence standard. (See, e.g., Haverstraw Town Police v C.G., 79 Misc.3d 1005, 1016 [Sup.Ct. Ulster Cty. 2023]; People v R.L., 80 Misc.3d 1227 (A), 2023 WL 6887164, *3 [Sup.Ct. Suffolk Cty. 2023]). The Court concludes that the Red Flag law's hearing requirements should be read to be consistent with those of the AOT law, as found to satisfy respondents' due process rights by our highest court. The precise scope of an ERPO hearing need not be pre-determined. The statute permits a court to consider the application itself, as well as other hearsay evidence, such as the background report. It is possible that those materials, coupled with a detailed allocution from a consenting respondent, would be sufficient without further live testimony or additional submissions from the petitioner. But at the conclusion of the proceeding, the Court must be able to make findings, under a clear and convincing standard, that the respondent "is likely to engage in conduct that would result in serious harm to himself, herself, or others[.]" The parties cannot alter the Court's statutory obligation.
In this case, the fact that this respondent was prepared to consent - and his reasons for so consenting - do not sufficiently add to the evidentiary record to permit the Court to make such a finding.
Even if the Court were able to conclude that the ERPO statute allows an out of court consent to obviate the need for a hearing, it would still find the record here insufficient. The waiver forms, which have been prepared by the AG, are well-drafted and thoroughly review the respondent's rights. The Court does not consider them to be anything other than good faith efforts to avoid the burden of conducting a hearing where a respondent has no desire to contest the ERPO. Nevertheless, the Court has concerns about the content and circumstances of these waivers.
With respect to the content, the waiver form does not inform the respondent whether the temporary ERPO was granted or denied. As a result, a respondent could consent to an ERPO even in the absence of probable cause, let alone clear and convincing evidence. Next, while the form explains that an ERPO restricts the respondent's access to firearms, it does not caution the respondent that there could be long-term collateral effects of having an ERPO entered. While there are provisions for sealing, these provisions contain numerous exceptions which could impact, inter alia, a respondent's employment opportunities where a background check is performed. Finally, and most significantly, the form does not contain an acknowledgment by the respondent that he or she is, in fact, likely to engage in conduct that would result in serious harm to themselves or others. Rather, the form simply waives the respondent's right to "hold the petitioner to its burden of proof[.]"
With respect to the instant circumstances, the Court credits Trooper Giuliano's testimony that respondent was neither coerced nor induced with promises to sign the First or Second Waiver. Nevertheless, the Court is faced with a situation in which the petitioner is obtaining the respondent's waiver out of court without oversight.
Moreover, these waivers are routinely presented to respondents simultaneously with the service of the temporary ERPO, and while the respondent remains under whatever acute stressors may have led to police intervention. In this case, the First Waiver was obtained from the respondent while he was at a hospital for a psychiatric evaluation. Without the respondent present in court, the Court cannot assess whether the respondent was in a proper frame of mind to make an important decision involving the waiver of statutory and, potentially, constitutional rights.
The reasons for this respondent's waiver are also relevant in considering the role that such waivers should play in ERPO proceedings. According to Trooper Giuliano, the respondent here was readily agreeable to executing the waiver and consenting to the ERPO because he did not own a gun and had no intention or desire to obtain one. In other words, he consented to the ERPO precisely because he falls outside the category of people for whom the statute was designed. As a result, there is a real concern that such waivers will be obtained primarily in the weakest cases involving persons who have no interest in firearms at all and who, as a result, will not consider or appreciate the consequences of having an order entered which is premised on a significant legal finding against them.
In sum, the Court concludes that a respondent's consent to the entry of an ERPO does not relieve the Court of making evidentiary findings, under a clear and convincing evidence standard, that the requirements of the statute have been satisfied and that the ERPO should issue.
Based upon the foregoing, by separate simultaneously issued Order, the petition is denied and the temporary ERPO vacated.
This shall constitute the Decision of the Court. The original Decision and all other papers are being delivered to the Ulster County Clerk for filing. The signing of this Decision shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.
SO ORDERED.