The confusingly named New York Supreme Court, actually the lower state court, has held that New York’s red flag law (CPLR §6342) is unconstitutional.

In G.W. v. C.N., 2022 NY Slip Op 22392, the court relied on the state’s law regarding involuntary hospitalization for mental health issues (the “mental hygiene law”) to find that the state’s red flag law did not provide sufficient procedural safeguards and therefore did not provide sufficient due process before a person is subject to a protection order which would result in the loss of firearms.

Specifically, the mental hygiene law requires that a physician determine a patient presents “a likelihood to result in serious harm” before a patient can be held against their will. The red flag law actually refers to the same mental hygiene law in describing when an order should issue. However, there is no requirement in the red flag law that such a determination be made by a doctor. The court then went on to analyze several cases and other statues in which the same “serious harm” standard was applied in mental health cases, all of which provided significantly more safeguards before a depravation of rights was allowed.

The court was also concerned that the red flag law allowed for the search and seizure of firearms belonging to people other than the subject of the protection order.  Specifically, the law allows for the search and seizure related to firearms in the possession of the subject of the order, which the court noted is considerably broader than firearms just owned by the subject. The court found it reasonably likely that the law could result in the seizure of firearms belonging to roomates of the subject of the order, which would be a direct violation of the roommate’s Second and Fourth Amendment rights.

The court noted that it is “not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, CPLR §63-a’s goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be [*8]condoned by this Court.”

As such, the Court held New York’s red flag law unconstitutional and dismissed the petition at issue.

We note that this decision applies only to the New York state law and has no effect on any other state. The decision is also likely to be appealed nearly immediately and will likely spend several years winding its way through the appellate courts.  However, the decision provides an interesting framework for further challenges against such laws in other states, and highlights the issues with the often poorly drafted and overreaching statutes put in place over the past several years.