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Westchester District Attorney Anthony Scarpino and Tuckahoe Police Chief John Costanzo

Westchester County District Attorney Anthony A. Scarpino, Jr. along with Governor Cuomo called on our lawmakers to pass the Red Flag law to take guns out of the hands of people in crisis and in jeopardy of hurting themselves and others. The law went into effect in August, 2019, and is an important tool to keep Westchester safe. Now, we are helping Westchester residents who believe an Extreme Risk Protection Order (ERPO) should be served on an individual bent on potentially using weapons to commit a violent act.

On the law’s passage, DA Scarpino said, “It is an important tool in preventing situations of mass violence in schools, workplaces, houses of worship or public spaces, and in our homes where suicide and domestic violence become deadly when a gun is involved.”
The New York State ERPO statute permits a police officer, District Attorney, family member or school administrator to file a petition in Supreme Court seeking an order prohibiting an individual from purchasing, possessing or attempting to possess a firearm, rifle or shotgun.

There are a number of legal steps for an individual to obtain this kind of civil protection order. The petitioner can contact their local police department or can call the District Attorney’s ERPO response unit to help them file for an ERPO against a resident of Westchester County. ADA Michael D’Addario is the first point of contact in the DA’s Office (914-995-3339).

What the Court Does
Here are the steps it takes for the courts to temporarily remove the rights of a person to access firearms:
The petition must be a sworn statement and should set forth the facts and circumstances to support the issuance of an ERPO. The petition must state that the applicant knows or has reason to believe the individual against whom the order is sought, owns, possesses or has access to a firearm, rifle or shotgun, and must provide the location or locations with specificity. The petition must be filed in the county in which the person of concern (the respondent) resides. The petition must explain the basis to support a finding by the Supreme Court that there is “probable cause to believe that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others.”

If the Court finds probable cause, a temporary ERPO will be issued. The factors considered by the Court are enumerated in the Statute. The temporary order can be made ex parte (meaning without a lawyer), and no notice to the respondent is required. The temporary order must be in writing and shall direct the respondent to surrender any and all weapons to law enforcement.

The Court will provide a copy of the order with supporting documents and arrange for prompt service. The Court will designate the law enforcement agency responsible for service of the order and retrieval of the guns. The Court will also notify NY State Police, Division of Criminal Justice Services and any licensing officials of the temporary order.

A hearing must be held in not less than three and no more than six business days from the date of issuance.

At the conclusion of the hearing, the Court will make a determination on a final order. The petitioner shall have to prove by “clear and convincing evidence” the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others.

More information on filing an ERPO in New York State