D.A. Bragg Moves To Defend New York’s Red Flag Gun Law Against Court Challenges

August 14, 2023

Motions to Submit Amicus Briefs Filed in Support of New York Attorney General Letitia James’ Defense of ERPO Law 

Manhattan District Attorney Alvin L. Bragg, Jr., today announced the filing of motions to submit three amicus briefs in the Appellate Division in support of New York’s Extreme Risk Protection Order (ERPO) or “Red Flag” law, which allows law enforcement to petition a court to prohibit a person from legally purchasing and possessing firearms. The briefs – two in the Second Department and one in the Fourth Department – were filed amid ongoing litigation over the law, which is being defended by State Attorney General Letitia James. D.A. Bragg’s briefs were joined by Queens District Attorney Melinda Katz, Staten Island District Attorney Michael McMahon, and Westchester District Attorney Miriam E. Rocah. 

“New York’s red flag law is an essential tool for law enforcement to effectively address and prevent gun violence. My Office has recently utilized this statute in several cases where individuals with firearms were making serious threats to others, and we were thankfully able to prevent any harm from occurring. Gutting this law would significantly undermine public safety and I will continue to do everything possible to protect our state’s strong gun laws,” said District Attorney Bragg. 

Queens District Attorney Melinda Katz said, “Fighting the scourge of gun violence is a top priority of my office. We use every tool at our disposal to take dangerous weapons off the street, including aggressively prosecuting offenders, interrupting the supply chain by targeting ghost gun manufacturers and working with violence interrupters and youth development organizations to find comprehensive solutions to end this epidemic of violence. Securing an ERPO when appropriate is a critical part of this overall plan.” 

“After a mass shooting, far too often we learn that the perpetrator left a trail of evidence that clearly displayed they should never have been able to get their hands on a firearm. Preventing these tragedies before they occur is what drove the enactment of New York’s “Red Flag” Extreme Risk Protection Order (ERPO) statute, and since it was enacted, my office has regularly utilized the ERPO law as part of our office’s quest to reduce gun violence and protect the safety of our communities. I am proud to join my colleagues in support of this important law,” said Richmond County District Attorney Michael E. McMahon.

Westchester County District Attorney Miriam E. Rocah said, “I’m proud to join the District Attorneys of New York, Queens and Richmond counties in supporting the Attorney General’s efforts to protect critical common-sense legislation that prioritizes the safety of all New Yorkers.” 

The briefs state that “the problem that the ERPO statute addresses—an imminent risk of gun violence—is of the utmost exigency and importance,” and that the law “serves the public interest by enabling law enforcement to swiftly respond to common warning signs of mass shootings by temporarily preventing high-risk individuals from possessing guns during periods of great danger.” 

Furthermore, the amicus briefs note that “the ERPO statute serves as a critical complement to criminal prosecution,” because “the ERPO statute’s focus on present, imminent dangerousness—as well as on the unique dangers posed by guns—provides an important additional tool that allows district attorneys to intervene and stop gun violence before it happens.” 

Finally, New York’s ERPO law is “designed to protect the respondent’s rights, with safeguards that go beyond what is required by federal or state due process. Indeed, the due process protections afforded by article 63-A are analogous to the procedures that attach to many other governmental actions that involve the temporary or permanent deprivation of rights.” 

These amicus briefs were prepared by Assistant D.A. John T. Hughes, under the supervision of Chief of the Appeals Division Steven C. Wu.