Opinion
Index No. 20221372
07-20-2022
New York State Police Investigator Thomas R. Gaughan, Petitioner, v. Anonymous, Respondent.
Heather Rubinstein, Esq. Assistant Attorney General New York State Office of the Attorney General Attorneys for the Petitioner Anonymous Respondent, Pro Se
Unpublished Opinion
Heather Rubinstein, Esq. Assistant Attorney General New York State Office of the Attorney General Attorneys for the Petitioner
Anonymous Respondent, Pro Se
RICHARD A. KUPFERMAN, J.
Before the Court is a petition for an extreme risk protection order ("ERPO"), pursuant to CPLR Article 63-A, seeking to prohibit Respondent from being able to legally purchase or possess a gun for a period of one year.
The Supporting Papers
The petition is based on a supporting deposition from Respondent's ex-girlfriend, Olivia (21 years old), and a police incident report. According to the supporting deposition, Olivia was in a relationship with Respondent for approximately one and a half years. About a month after they broke up, she agreed to allow Respondent to stay at her apartment for a few days to take care of her pet frog while she was away on a trip. Respondent had agreed to leave the apartment by June 19, 2022. However, when Olivia returned that night, she found Respondent crying on the bathroom floor. She asked Respondent to leave her apartment multiple times, but he refused to do so. He continued to cry and stated that he was going to kill himself with his Glock pistol on numerous occasions. The incident report indicates that Olivia told the police that Respondent threatened to shoot himself with his Glock pistol if she refused to be in a relationship with him.
According to the supporting deposition, Respondent left the bathroom and followed Olivia into the living room. While in the living room, Olivia threatened to call the police if he did not leave. Respondent continued to refuse to leave. He then aggressively came toward her, making her feel uncomfortable. She jumped over the sofa into the kitchen area to retrieve a knife. She then went into the bathroom, locked the door, and called 911. Shortly thereafter the police arrived. According to Olivia, Respondent has also made numerous remarks in the past about killing himself with some sort of gun.
According to the incident report, the police interviewed Respondent on the night in question. He denied wanting to harm himself. In addition, Respondent voluntarily agreed to a mental health evaluation. He also voluntarily turned over his weapons (10 guns in total) to the police, which were secured from his residence.
Pre-Hearing Proceedings
Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief. As a result, on June 21, 2022, the Court issued a temporary extreme risk protection order ("TERPO"), ex parte (see CPLR 6342). The Court further scheduled a hearing for June 27, 2022 (see CPLR 6343).
Summary of the Hearing
At the hearing, Petitioner (a police officer) was represented by the New York State Attorney General's Office (Heather Rubinstein, Esq., of counsel). Respondent appeared pro se.
The Court heard testimony from five witnesses, including the two responding police officers, Petitioner, Olivia, and Respondent. In addition, the Court received into evidence Petitioner's Exhibit 1, the investigation report that the Court directed to be conducted into Respondent's background, as required by CPLR 6342(9).
Testimony of the Responding Officers
The two responding officers testified that they went to Olivia's apartment building in response to the 911 call on the night in question. One of the responding officers testified that Respondent greeted them in the common area when they first arrived. Respondent acted calm, polite, and professional. At the time, Olivia was still in her apartment, nervous and crying when the officers first observed her. She was holding a knife but dropped it after she saw the officer. She said that she had found Respondent on her bathroom floor when she returned from her trip and that Respondent had threatened to kill himself while he was in her apartment. She did not want to press any charges, but she wanted Respondent to leave her apartment.
When asked about the incident, Respondent denied making any statements about wanting to kill himself. Respondent did not display any physical signs that he had previously been crying that night. He admitted to drinking beer earlier that day, however, he did not slur any of his words. One of the responding officers testified unequivocally that he did not believe that Respondent was a danger based on his limited interactions with him.
The Testimony of Petitioner
Petitioner spoke with Respondent about the allegations made by Olivia. Respondent denied saying that he wanted to kill himself. He found both Olivia and Respondent to be sincere. He had no basis to believe that Respondent was dishonest.
Petitioner also explained that the background investigation came back negative. The investigation did not contain any criminal history or any instances of domestic violence regarding the Respondent.
Testimony of Olivia
Olivia appeared as a witness at the hearing pursuant to a subpoena. She testified that she had previously lived with Respondent at her apartment until he moved out a few months ago. They remained friends afterwards and had no issues. In June 2022, she agreed to let Respondent stay at her place for a few days while she was away on a trip.
Despite making it clear that she did not want him to be there when she got back from her trip, Respondent was still present when she returned. He was screaming and did not want to leave. She told him to leave about 30 times.
At one point, Olivia threatened to call the police. Respondent walked aggressively toward her and told her to give him "the fucking phone." When he allegedly blocked her path, she jumped over the couch, grabbed a knife, and ran to the bathroom. He did not make any physical threats towards her. On that night, however, Respondent threatened to kill himself twice while in the bathroom, specifically mentioning his Glock. He again threatened to kill himself (without identifying the method) while in the kitchen.
Respondent had previously said that he wanted to kill himself starting around the time of their breakup. However, she either did not take it seriously or he indicated that he was joking and prevented her from asking further questions. She knew he had guns. She was not sure what type of guns he had. She knew he had a pistol.
Testimony of Respondent
Respondent testified that they previously broke up about one and a half months ago. They had tried to work things out. Olivia agreed that he could stay at her place while she went on vacation. He had been drinking the night prior to her return and she agreed that he could stay there that night. She also said that they could talk when she got home.
Respondent drank three beers with a friend around 1:00 p.m. on the day Olivia was scheduled to return. She called him to tell him that she was close and did not tell him to leave during the call. When she arrived, she yelled at him to leave. He was going to the bathroom at the time. They both got upset and yelled. It was a mutual argument.
At one point, Olivia grabbed a knife and Respondent asked her to give him "the fucking knife." He walked towards her, and she jumped over the couch and ran into the bathroom. He then gave her his key back, left the apartment, and met the officers in the common area of the apartment complex. He was transported for a mental health examination and used the restroom upon arriving, approximately 45 minutes after the argument with Olivia.
At the mental health examination, a doctor evaluated him and then discharged him shortly thereafter. He did not have any mental health issues.
Analysis
CPLR Article 63-A was enacted in 2019. The statute (also known as the "red flag" law) sets forth the basic procedure for police officers (among others) to request a court order to temporarily keep guns away from people who are likely to use them to hurt themselves or others. Such an order prohibits a respondent from purchasing, possessing, or attempting to purchase or possess a firearm, rifle, or shotgun for a period of up to one year. The statute is intended to help prevent and reduce the number of mass shootings, suicides, and other acts of gun violence.
This one-year period may be extended for an additional period upon application (see CPLR 6345).
To obtain a final ERPO, 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][1]-[2]; see CPLR 6343[2]).
"The court may consider the petition and any evidence submitted by the petitioner, any evidence submitted by the respondent, any testimony presented, and the report of the relevant law enforcement agency submitted [for the proceeding]" (CPLR 6343[2]). In addition, 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 id.; CPLR 6342[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) any 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 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 II.), 151 A.D.3d 1129, 1130-1131 [3d Dept 2017]). The imposition of this higher standard in this case reflects the fundamental constitutional right at issue, namely, the right to keep and bear arms (see U.S. Const, 2nd Amend; Matter of Cappoccia, 59 N.Y.2d 549, 553 [1983] [recognizing the applicability of this higher standard in civil cases when a case involves the "denial of personal or liberty rights"]; Delgado v Sinagra, 72 Misc.3d 233, 236 [County Court, Ulster County 2021] [imposing this higher standard in a case involving an application pursuant to CPL 530.14(5)(b) for the return of long guns surrendered to the government]).
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, citing 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 sole red flag before the Court is essentially the allegation that Respondent threatened to shoot himself if Olivia refused to be in a relationship with him. Olivia testified that Respondent said that he wanted to kill himself three times on the night in question, twice specifically mentioning his Glock. Olivia further testified that Respondent made statements in the past (after they broke up) about wanting to kill himself with some sort of gun.
These statements are indeed disturbing and should be taken very seriously. The evidence, however, was insufficient to satisfy Petitioner's heavy burden. While the Court found Olivia to be sincere, the Court found Respondent to be just as equally sincere when he testified. He denied making any suicidal comments, which was consistent with his prior denials. The testimony from these two witnesses therefore presented contradictory evidence on the material issue in dispute.
Further, no persuasive basis exists upon which to logically and rationally credit Olivia's testimony over Respondent's testimony. This is in fact consistent with the impression of Petitioner who concluded during his testimony that he found Respondent equally sincere and that he had no basis to believe that Respondent had been dishonest with him.
In particular, there were no other witnesses to the suicidal comments. The responding officers also did not observe any objective or physical signs to conclude that Respondent had been crying that night. He most certainly was not acting distraught or suicidal. Rather, he was calm and polite. In addition, no other witnesses testified that Respondent had acted suicidal on prior occasions or made similar threats. Respondent also has no prior criminal history. He has no prior orders of protection. No evidence exists that Respondent suffers from any mental health issues.
Even assuming for the sake of argument that the Court were to credit Olivia's testimony that Respondent made such statements, she did not opine that Respondent would likely harm himself or that he presented a danger to himself or others. She did not testify about witnessing any suicide attempts or about any other red flags to indicate that Respondent was in fact suicidal. Respondent further did not make any physical threats to harm her. She also did not take any of these alleged prior statements made by Respondent seriously.
Further, Respondent was examined by a doctor in response to Olivia's allegations. According to the testimony, the doctor did not find that Respondent was a danger. Rather, the doctor discharged Respondent shortly after examining him. One of the responding officers further agreed during his testimony that he too did not believe that Respondent was a danger.
Accordingly, the record lacks clear and convincing evidence that Respondent is likely to engage in conduct that would result in serious harm to himself or others (see CPLR 6343 [2]). The Court therefore denies Petitioner's application and vacates the temporary extreme risk protection order issued in this matter.
It is therefore, ORDERED that Petitioner's application for a final extreme risk protection order is denied; and it is further
ORDERED that the temporary extreme risk protection order issued in this matter is vacated; and it is further
ORDERED that Petitioner has not demonstrated the existence of any legal impediment to Respondent's possession of a firearm, rifle, or shotgun. The Court therefore directs that any such firearm, rifle, or shotgun surrendered by Respondent or removed from his residence in connection with this matter shall be returned to Respondent.