NY Monroe Co.: Parts of NY red flag law may violate 2A and 4A

Parts of the NY red flag law concern the court. A taking of firearms should be based on a mental health professional’s assessment of danger to protect both Second and Fourth Amendment rights and procedural rights. G.W. v. C.N., 2022 NY Slip Op 22392, 2022 N.Y. Misc. LEXIS 8029 (Monroe Co. Dec. 22, 2022). Further, the rights of co-occupants need to be protected, too:

Another section of CPLR 63-a which troubles this Court concerns the possibility that, based upon the opinion of a non-physician, a court may be permitted to issue a search warrant to confiscate a respondent’s guns, but which also may result in certain circumstances of the confiscation of guns owned or possessed by non-respondents. See, CPLR § 6342 [8]. Under our law “possess” has its own special meaning. It does not simply mean “to own.” It holds an expanded meaning. “A person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found sufficient to give him or her the ability to use or dispose of the property.” People v Manini, 79 NY2d 561, 573 (1992). In situations where many people live in the same residence (and a respondent is simply one of the residents), a court could order the search and seizure of all guns in possession of the respondent, including guns owned by the other residents on the theory that those guns are in the respondent’s “constructive possession.” In this instance CPLR 63-a offers no due process to the non-respondent residents prior to the guns being taken. As a result, the non-respondent residents have become the victims of a search and seizure, conducted against them without any probable cause whatsoever, and in complete violation of the non-respondents’ Second and Fourth Amendment rights.

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