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, sections 6340 through 6348.

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.

It is worth being precise about what this order cannot do, because people sometimes file expecting more than the statute gives. An ERPO cannot stop threatening, harassing or abusive behavior. It cannot order anyone into treatment for mental health, substance abuse or anger management. It cannot direct someone to stay away from your home, your job or your children’s school. And it cannot decide custody, visitation, child support or spousal support. It takes the guns, and that is the whole of it.

It is also purely civil. An ERPO case does not require criminal charges, and it does not create any.

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. The 2022 amendments made these filings mandatory rather than discretionary for district attorneys and police, and a 2022 executive order directs the New York State Police to file where the standard is met. The same amendments added the treating health care practitioners listed above.

What It Costs, and Keeping Your Address Private

Two practical questions come up before anything else, and the answers are better than most people expect.

Cost. Unlike a family offense petition in Family Court, which is free to file, an ERPO is a special proceeding in Supreme Court and carries the court’s index number fee, currently $210. If you cannot afford it, you can apply for a fee waiver at the same time you file. You do not need a lawyer to file, though the application is sworn and the court may examine you and any witness you bring under oath at the temporary stage.

Your address. CPLR 6342(6) lets the court redact your address and contact information from the application and the papers served on the respondent where it finds that disclosing them would pose an unreasonable risk to your health or safety. If you have left the home, or the respondent does not know where you are, ask for this when you file rather than afterwards.

Service. The court sends the papers to the law enforcement agency covering the respondent’s residence with a direction to serve them promptly, at no cost to you. You may instead arrange service yourself through a licensed process server if you prefer, but you are not required to pay for service.

What the Court Has to Find

There are two different standards at two different stages, and confusing them is the most common error in writing about this law.

For a temporary order, CPLR 6342(1) allows the court to act “ex parte or otherwise” on a finding of “probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others.” Probable cause is a comparatively low threshold, which is why a same-day decision is possible.

For a final order, CPLR 6343(2) raises the bar considerably. The petitioner carries the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm, as defined in Mental Hygiene Law 9.39(a).

That cross-reference is not decoration. “Likelihood to result in serious harm” takes its meaning from the Mental Hygiene Law, and in most cases the relevant branch is 9.39(a)(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.

The Appellate Division, Fourth Department, which is the appellate court for Erie and Niagara Counties, addressed exactly this in 2026. In Matter of New York State Police v Galliher, the lower court found that the respondent had participated with others in an act of violence, but then decided he was not “likely” to cause serious harm by consulting the Merriam-Webster definition of the word instead of the statutory one. The Fourth Department’s response was direct: “That was error.” The court reversed and granted the final ERPO, holding that the petitioner had met the clear and convincing standard by establishing that the respondent actively participated in the assault of a restrained incarcerated individual.

Galliher is worth knowing for two practical reasons. Proven past violence can carry the burden on its own; the statute does not require an expert to predict the future. And the standard is the statutory one, not a judge’s ordinary-language sense of what is likely.

ERPO Compared With an Order of Protection

These two orders get confused constantly. They come from different statutes, go to different courts, and do different work.

What Happens When the Order Ends

An ERPO does not simply lapse into nothing, and two of the rules that follow matter to the person who filed it.

The record is sealed. On expiration, the order and all records of the proceeding are sealed, and the clerk notifies the Division of Criminal Justice Services, the relevant police departments and the applicable licensing officers. Sealed records remain available to a short list that includes the respondent, courts, police, licensing officers considering a later firearms application, and prospective employers of police and peace officers.

You get notice before the guns go back. After the order expires the respondent may apply in writing to have surrendered firearms returned and eligibility restored. That application is made on notice to you and to every licensing officer responsible for the respondent’s firearms license, and you have an opportunity to be heard. The court orders return only on a written finding that there is no legal impediment, and if the licensing officer says he intends to seek revocation of the license, the return order is stayed until that proceeding is over. If you want to renew instead, the 60-day window before expiration is the time to act.

An ERPO finding does not decide your other case. CPLR 6347 says that no finding or determination made under Article 63-A is binding, or has collateral estoppel or similar effect, in any other action or proceeding, in any court or administrative forum. That cuts both ways. Winning an ERPO does not win your custody case, and losing one does not lose it. It is a point worth understanding before anyone treats the ERPO hearing as a dress rehearsal for Family Court.

Frequently Asked Questions