Extreme Risk Protection Orders in New York: How a Family Member Files

What Is an Extreme Risk Protection Order?

An extreme risk protection order, or ERPO, is a civil court order that stops a person from having or buying a firearm, rifle or shotgun and requires them to give up the ones they already have. It is New York’s red flag law, and it lives in Article 63-A of the Civil Practice Law and Rules.

An ERPO is a firearms order. It is not a stay-away order. This is the single most common misunderstanding about the law, and it matters, because people who need both sometimes ask for only one. An ERPO does not direct anyone to keep away from you, leave your home, or stop contacting you. It addresses guns and nothing else. If you also need distance, that is a family offense order of protection, and it is a separate case in a separate court.

The law took effect on August 24, 2019, 180 days after it was signed as chapter 19 of the Laws of 2019. It is used far more than most people realize. The Erie County District Attorney maintains a dedicated ERPO unit, and the Bar Association of Erie County has run continuing legal education on how to bring these applications.

Who Can File for an ERPO in New York?

Under CPLR 6340, five categories of people may petition for an extreme risk protection order:

• A family or household member of the person at risk, using the definition in Social Services Law 459-a(2).
• A police officer, or a law enforcement agency with jurisdiction where the respondent lives.
• A district attorney with jurisdiction in the county or city where the respondent lives.
• A school administrator, or school personnel the administrator designates.
• A treating licensed health care practitioner from an enumerated list that includes a licensed physician, psychiatrist or psychologist, a registered nurse, a licensed clinical social worker, a certified clinical nurse specialist or nurse practitioner, a licensed marriage and family therapist, a licensed master social worker, and a licensed mental health counselor, who examined or treated the person within the previous six months.

The first category is the one this page is about, and it is the one that tends to get lost. New York State’s own public-facing explanation of the red flag law lists teachers, school administrators, mental health professionals, police and district attorneys. It does not mention family or household members at all. The statute does. If you are a spouse, a former spouse, a parent, an adult child, a sibling, someone who shares a home with the person, or someone who has a child in common with them, you may be able to bring this application yourself.

Law enforcement does not get a choice in every case. CPLR 6341 provides that a law enforcement agency, police officer or district attorney shall file an application on receiving credible information indicating that a person is likely to engage in conduct resulting in serious harm, unless the officer determines there is no probable cause. So reporting your concern to police is a real alternative to filing yourself, and often the faster one.

How Long an ERPO Takes

The timeline is short by design, because the statute exists for situations that will not wait.

1. You file the application. The judge decides the request for a temporary order the same day it is filed.
2. The hearing on a final order is set for 3 to 10 days after filing. That is the whole window, whether or not a temporary order was granted.
3. A final ERPO runs up to one year and states its own expiration date on its face.
4. Renewal. Within the 60 days before the order expires, the petitioner may file an application for renewal, and the judge may renew it for up to one more year.

If the order is granted, police remove any firearms, rifles and shotguns the respondent has. The order also bars buying one, or attempting to.

The Eight Factors a New York Court Must Consider

CPLR 6342(2) directs the court to consider “any relevant factors including, but not limited to, the following acts of the respondent”:

1. A threat or act of violence or use of physical force directed toward self, the petitioner, or another person.
2. A violation or alleged violation of an order of protection.
3. Any pending charge or conviction for an offense involving the use of a weapon.
4. The reckless use, display or brandishing of a firearm, rifle or shotgun.
5. Any history of a violation of an extreme risk protection order.
6. Evidence of recent or ongoing abuse of controlled substances or alcohol.
7. Evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor.
8. Evidence of recent acts of aggravated cruelty to animals, as defined in section 353-a of the Agriculture and Markets Law.

Two statutory riders travel with that list. The court must weigh how much time has passed since the conduct and how old the respondent was when it happened. And for the factors framed in terms of recency, “recent” means within the six months before the petition was filed.

Note the second factor in particular. An alleged violation of an order of protection counts, even if it has never been adjudicated. So does a pending weapons charge, without a conviction. The statute is built around risk rather than proven guilt.

One point of precision that is often gotten wrong: this eight-factor list appears in the section governing temporary orders. It applies at the final hearing too, because CPLR 6343(2) directs the court to consider the CPLR 6342(2) factors there as well, and Galliher confirms it.

Using Both Together

For most of the families we see, the realistic answer is both, running in parallel.

The family offense petition goes to Erie County Family Court at 1 Niagara Plaza and does the work of distance: stay away from the home, the workplace, the children’s school, no contact by phone or text or through third parties. The ERPO goes to Supreme Court at 25 Delaware Avenue and does the work of disarming.

They are not redundant. A Family Court order of protection can reach firearms, but only if the judge makes one of the findings Family Court Act 842-a requires, and the relief tracks the order of protection rather than standing on its own. An ERPO is aimed at firearms from the start and can be brought against someone who is not a party to any Family Court case. It is also available where no family offense has been committed at all, which matters when the danger is a relative in a mental health crisis rather than an abuser.

Running two cases at once takes coordination. The evidence overlaps, the hearing dates will not, and testimony given in one proceeding can be used in the other. That is a reason to have one lawyer holding both files.

Frequently Asked Questions