N.Y. State Police Attempt to Get "Red Flag" Gun Ban Order Against 11-Year-Old Girl Was "Legally Frivolous," "Needlessly Risk[ed] Further Injury"

The basis for the attempt was that the girl had texted a classmate that she was thinking of hanging herself.

From N.Y. State Police v. K.L., decided by Ulster County (N.Y.) trial court judge Julian Schreibman on Dec. 12:

Often referred to as the "Red Flag Law," Article 63-A created ERPOs [Extreme Risk Protection Orders]. Although an ERPO is a "Protection Order," it does not limit where the subject can go or with whom he or she can associate. Rather, an ERPO does one thing: it prohibits the subject from possessing or acquiring firearms for up to one year.

Significantly, the Red Flag Law is not addressed only to criminal gun violence but also encompasses the goal of reducing suicide by firearm…. "The Red Flag Law seeks to keep guns out of the hands of persons who may be suffering from acute emotional trauma or a mental health crisis and are at risk of harming themselves or others." …

The enactment of the Red Flag law was not met with a flood of petitions. However, on May 14, 2022, a racially motivated mass shooting in Buffalo left ten Black New Yorkers dead. In the wake of this massacre, on May 18, 2022, Governor Kathy Hochul issued an Executive Order titled, "Directing the State Police to File Extreme Risk Protection Orders" (the "Executive Order")….. [S]ince the Executive Order, there has been a sharp increase in the filing of TERPO [Temporary Extreme Risk Protection Order] applications, with a significant portion of these directed at at-risk persons including troubled children, senior citizens, persons with serious chronic illnesses, and individuals processing trauma through acts of non-suicidal self-harm such as "cutting."

Since the Executive Order was issued, more than 17,000 New Yorkers have been found by a court to be likely to seriously harm themselves or others. In this County, it has been the Court's experience that, in the majority of cases, the respondent does not possess any firearm, and has no intention of doing so, so that even when the TERPO or ERPO is granted, no firearms are confiscated and neither the respondent nor the public are made any safer. Instead, the aggressive pursuit of ERPOs simply raises the prospect of further traumatizing the respondent. This is such a case….

On the evening of January 27, 2025, respondent K.L., who had turned 11 years old just two weeks prior, had the following text exchange with a friend ["B"]:

[K.L.:] About hanging myself I might still do it but idk probably not idrk don't tell [b]
[B:] Don't pls
[K.L.:] Idk I might why do you care Don't you hate me DON'T TELL [B]
[B:] Don't I like you as a friend I mean I do Sorry
[K.L.:] Oh everyone says that you say you hate me
[B:] Don't believe in rumors
[K.L.:] But I might do it everyone hates me my own parents hate me my life is so hard I always seem so happy but under that im just sad and wanting to kill myself I've attempted to kill myself 19 times my life is so hard
[B:] [B appears to have responded with a smiley face and thumbs up emojis]

K.L's friend "B" showed these texts to his mother who then contacted law enforcement. NYSP troopers responded first to B's house, where they interviewed his mother and reviewed the text messages, and then to K.L.'s house.

According to NYSP's investigative report, troopers "interviewed [K.L.] in the presence of her parents…. [K.L.] made no comments of self harm, or displayed any suicidal ideation in our presence." {At the hearing on the final ERPO, the responding trooper clarified that rather than interview K.L. directly, they permitted her parents to confront her with the text messages and ask her about them, while in the troopers' presence. NYSP handled the matter in this fashion despite the texts containing the statement by K.L. that her parents hated her and that their alleged mistreatment of her was a basis for her purported suicidal ideation. At no time prior to her being placed in custody was K.L. spoken to in a safe space away from her parents.}

Nevertheless, NYSP took K.L. into custody for a mandatory psychiatric evaluation. K.L. was transported, alone, in the back of a police cruiser for the 45-minute ride to the hospital, with her mother following in a separate vehicle. Meanwhile, upon a voluntary search, NYSP concluded that there were no firearms in K.L.'s home; nevertheless, NYSP brought a TERPO petition against K.L.

This Court denied the TERPO and made the following findings of fact in connection with that determination:

Respondent is barely 11 years old. The application is based solely on text messages sent by the child to another child. No other information, including statements from the child's parents, are provided to corroborate the respondent's veracity or the circumstances of her communications. No medical or educational history has been provided. The evidence does not rise to the level of probable cause that the respondent is likely to engage in conduct that would cause serious harm to herself or others.

As required by statute, the Court scheduled a prompt evidentiary hearing for February 6, 2025, to determine whether to issue a final ERPO.

Respondent did not appear at the hearing, despite service of notice on her mother. As this Court has elsewhere held, pursuant to the Court of Appeals' binding interpretation of identical, relevant language in a similar statute, an ERPO may not be granted on default or consent. In any event, an infant cannot default in a civil proceeding. Accordingly, the Court proceeded with an evidentiary hearing in K.L.'s case.

At the hearing, two additional statements by K.L. on the night of the incident were offered into evidence. First, according to the responding trooper, when confronted by her parents about the text messages, K.L. said, in sum and substance, "sometimes I say dumb things." {At the ERPO hearing one of the responding troopers testified that he understood this statement to be a denial of the suicidal ideation expressed in her text messages.} Second, according to the trooper who transported her to the hospital, at some point during that trip he asked K.L. whether she was thinking of hurting herself and she responded, in sum and substance, "I don't know." Otherwise, the proof presented was identical to that submitted with the TERPO application. At the conclusion of the hearing, the ERPO was denied and a written decision subsequently issued.

The court concluded that "Pursuing the ERPO Against K.L. was Legally Frivolous"; a brief excerpt from the analysis:

[A.] An ERPO Could Not Protect K.L. from Firearms More Than Existing Laws Applicable to All 11-Year-Olds

It is illegal in the State of New York for an 11-year-old child to handle a firearm, much less to possess or own one. Indeed, the State makes it illegal for anyone under the age of 16 to possess a gun of any kind….

[OAG] it contends that although K.L. cannot have guns and her home cannot be made gun free, the issuance of an ERPO would subject her parents to heightened storage requirements (in the event they ever purchased a gun) and therefore the ERPO could promote K.L.'s safety, at least indirectly…. [But] the sub-section of law immediately preceding the one cited by OAG … imposes exactly the same responsibilities for safe storage and criminal consequences for non-compliance on any gun owner who lives with a person who "is under eighteen years of age." In other words, entry of an ERPO against a child affords no additional safety because the adults in the household are already subject to the same safe storage requirements; contrary to OAG's argument, K.L. is not "allowed to be around guns" in the absence of an ERPO….

[OAG also argues] that an ERPO against K.L. would achieve some purpose is her future eligibility for a hunting license when she turns 12, which would happen shortly before the expiration of the ERPO that OAG sought. While technically true, this is too fragile a reed to support OAG's vigorous pursuit of an ERPO against a child, 11 months in advance. A 12-year-old child cannot obtain a hunting license on their own. Such a license may only be issued if the minor is accompanied at the time of their application by a parent who consents and signs the license. Even with such a license, a person aged 12 or 13 may hunt only when accompanied by a parent or an adult who has been given written authorization to supervise the youth. In short, the issuance of an ERPO in February 2025 would, at most, prevent K.L.'s parents, in January 2026, from consenting to her obtaining a junior hunting license. OAG has not presented any good faith basis to suggest that K.L. or her family have any intention of pursuing such a license. As noted, there is no evidence that K.L.'s family have ever owned guns, much less hunted….

[B.] OAG Ignored the Applicable Evidentiary Standard …

At the ERPO hearing, petitioner did not present a scintilla of medical evidence regarding K.L's mental health, either from medical professionals or from family or community members familiar with K.L.'s personal history and circumstances…. [T]he only evidence presented by OAG at the ERPO hearing in this case were the out of court statements of a barely-11-year-old. Moreover, those statements, quoted in full, supra, are the very definition of equivocal, precluding relief. OAG nonetheless insists that the proof tendered satisfied its burden of showing by clear and convincing evidence that this child was likely to engage in conduct that would result in serious harm to herself and that the Court erred in denying the petition. OAG made clear that it would not change anything about how K.L.'s case was handled or pursued.

It is apparent that OAG failed to tender any meaningful evidence in support of the petition not because it lacked the time, but because it lacked the interest. OAG's cavalier attitude to the statutorily imposed burden of proof is, in this Court's view, demonstrative of frivolous litigation conduct, especially when coupled with the fruitless nature of the claim itself.

[C.] Pursuing a Meritless ERPO Against a Child Needlessly Risks Further Injury …

22 NYCRR Part 130 also defines as frivolous conduct actions taken "to harass or maliciously injure another." OAG acknowledges that going through an ERPO proceeding carries a real risk of retraumatizing a vulnerable person. (See, e.g., Tr., 99-100). OAG has prosecuted ERPOs in this Court involving respondents who are in tears or who bring family members for emotional support or even case workers with them to court. Until respondents are in court, they may not realize that they are not being charged with a crime; this Court's chambers has fielded calls from respondents worried that they will be jailed if they cannot appear at the hearing. Needless to say, such consequences should not deter pursuing valid ERPOs. In this Court's observation, however, almost universally, including in this case, ERPOs brought against vulnerable persons do not involve any guns, nor even the contemplation of acquiring a gun.

There is nothing in the record to show that in preparing this case OAG either considered the potential impact on K.L., or took any obvious steps consistent with having a genuine concern for the welfare of an emotionally fragile child….

This matter involves a child—a child who, for reasons still unknown, suggested she was contemplating suicide and had attempted suicide in the past. Moreover, her texts indicated that her expressed suicidal ideation derived, at least in part, from perceived mistreatment by her parents.

Notwithstanding the expressed concerns about her parents, and the acknowledged presence of other children in the home, at no time did anyone involved make a referral to Child Protective Services ("CPS") or, apparently, inquire whether there was any CPS or Family Court history. No such action was taken even when her parents failed, without explanation, to bring her to a court-ordered hearing.

Alternatively, to the extent OAG discredited K.L.'s stated concern about her parents (while simultaneously crediting her claim of 19 suicide attempts), they took no steps at all to determine whether her parents were in favor of bringing the ERPO or needed referrals to any other support services. Tellingly, to the Court's knowledge and as confirmed at oral argument, since the night NYSP drove her to the hospital in the back of a police car, no one from NYSP or OAG has ever followed up with her family to see if K.L. is ok.

Instead, in two recurring themes at oral argument, OAG referred to pursuing the ERPO as a "wake-up call" for the family and advocated for the need for K.L. to be held "accountable" for her conduct. It is not clear how proceeding to an ERPO hearing is a wake-up call in light of all that preceded it. The State Police showing up at your door at night with troubling texts sent by your child is a wake-up call. The State Police taking your child into custody for a psychiatric evaluation is even more of a wake-up call. There is nothing about the proceedings in this case to suggest that suing the child to remove non-existent guns could rationally have produced more alarm—except to the child herself.

The accountability argument is even more troubling. OAG argues that "there has to be some level of accountability of making statements such as this…. there needs to be some form of recognition that those statements should not be made because we do take those very seriously here in New York." Is it really the objective of ERPOs to train children to suppress emotional trauma and refrain from communicating suicidal ideation? As OAG noted, by transporting her to the hospital, NYSP was at least making available to her professional medical help. Deciding, thereafter, to also sue her—and to continue that suit after a judge has cautioned that the evidence is lacking—provides no positive support. Rather, it communicates the dangerous message to a child that if you are feeling like you're going to hurt yourself, you'd better not say anything or you'll get in trouble. Indeed, such a fear is palpable in K.L.'s texts in which she repeatedly implores her friend "B," "don't tell." …

The trauma of participating in the hearing is not the only cause for concern regarding a child's well-being. The potential harms to K.L. from obtaining such an order against her extend well beyond the hearing date and are potentially life-long. Because the Red Flag Law is relatively new, the collateral consequences of having such an order entered are not yet entirely clear or fully developed. {As an example of the ripple effect of such proceedings, one ERPO respondent informed the Court that her Global Entry pass had been cancelled by the U.S. State Department upon the entry of the TERPO against her.} The Legislature has recently expanded the dissemination of ERPO records. Given this expansion, it is not unreasonable or farfetched to think the Legislature may conclude, for example, that school administrators should know if a student in their school has (or has had) an ERPO entered against them….

[The ERPO] may impact her ability, for example, to work as a police officer or even as a school bus driver or in a daycare center one day. If, eight or ten years from now, she finds herself in contact with police for engaging in some form of youthful foolishness or misunderstanding, will she be treated differently from other youths because she has previously been found to be an "extreme risk"? "Since the order of protection remains in a police computer database … respondent may face additional law enforcement scrutiny and increased likelihood of arrest in certain encounters with the police." Separate from the availability of her official records, how often will she be asked, over the years to come, to truthfully disclose whether such an order was ever entered against her? …