Supreme Court justice declares Temporary Extreme Risk Protection Order unconstitutional in Orange County

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GOSHEN – Acting State Supreme Court Justice Craig Stephen Brown has declared unconstitutional a Temporary Extreme Risk Protection Order (TERPO) against a Middletown man and ordered it be dismissed against the respondent only identified in court papers as “C.M.”

The matter arises out of the issuance of a TERPO against C.M. on January 20. It was alleged that on January 18, at a Concord Lane, Middletown address, he brandished a loaded shotgun, cocked it, and pointed it at his neighbor during a verbal dispute.

He denied the allegations and challenged the constitutionality of the state’s Red Flag Law.

Justice Brown noted that “while ‘a licensed physician’ or ‘licensed psychiatrist’ may (under the law), be a petitioner, there is no requirement that such licensed professional be a petitioner or be involved in any manner to provide any evaluation or opinion whatsoever as a basis for the issuance of a Temporary Extreme Risk Protection Order or a Final Extreme Risk Protection Order,” and he said, “Therein lies one constitutional impediment with New York’s Red Flag Law.”

Brown wrote in his decision issued on April 4 that “without the requirement of any input from a medical or mental health expert, the court is required to make a determination of whether the respondent ‘is likely to engage in conduct that would result in serious harm to himself, herself, or others.”

He also said in order to extend any curtailment of liberty beyond 48 hours, “a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion.”

Orange County District Attorney David Hoovler called the decision well thought out.

“Since August of 2022, we have handled, just in the DA’s office, 150 of them, 109 were granted. Forty-one of them were either denied or settled, so this is definitely a game-changer. I think Judge Brown’s decision is well reasoned and well thought out, and I think the statute needs to be procedurally fixed,” he told Mid-Hudson News.

The decision only applies to Justice Brown’s court in Orange County, but it can be a persuasive argument in Orange or other counties, said Hoovler.




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