New York State Police Investigators Association Calls on the Attorney General to Provide Legal Counsel for Red Flag Hearings

For Immediate Release:

New York State Police Investigators Association Calls on the Attorney General to Provide Legal Counsel for Red Flag Hearings

Albany NY — The New York State Police Investigators Association (NYSPIA) are calling on New York State Attorney General Letitia James to address a critical gap in the legal system that puts New Yorkers at risk. In response to recent changes to the Red Flag Laws, also known as the extreme risk protection order (ERPO) law, weapons are being returned to owners who have been flagged as dangerous because New York State is not providing attorneys at the hearings.

New York State Police Investigators are required to follow up on all ERPO calls and remove weapons from reported homes. Within three days, there is a hearing before a supreme court judge to determine whether the weapons can safely be returned. The respondent often has legal counsel however, New York State is not required to provide legal counsel to represent the State’s interest, but the Investigator is required to testify. Due to lack of legal counsel, in many cases the judge returns the weapons to the owner. NYSPIA firmly believes this is a critical flaw in the system.

Recently, Acting Supreme Court Judge for Orange County, Craig Stephen Brown wrote to the New York State Attorney General’s office alerting them to this issue. In his letter, Justice Brown noted, “These law enforcement officials have been appearing without counsel…it does not appear their training includes the legal nuances necessary for them to proceed in such a manner in these legal proceedings (rules of evidence, conducting direct and cross-examinations, etc.).”

The Attorney General’s Office responded to Judge Brown that “the OAG has determined that our office will not represent the NYSP in these proceedings.”

“We are disappointed with the response from the Attorney General’s office to Judge Brown’s comments,” said Tim Dymond, President of NYSPIA. “This is a troubling issue that New York State Investigators and Senior Investigators, and frankly all police across NY are dealing with right now. We fully understand and support the red flag laws. If someone has a gun and may harm themselves or others we want to know so we can stop them. However, our members are police officers, not attorneys and sending them into a Supreme court hearing against skilled defense attorneys to represent the State’s interests is unreasonable. We can’t even go to a traffic ticket hearing without an attorney representing the State, why would the State send us in there for something as serious as a gun removal without providing counsel?”

There has been a significant increase in ERPO filings since the mass shooting in Buffalo in May. According to NYSP records, in 2021, there were 36 ERPO cases between 1/1/21 – 6/22/21. So far this year, there have been 146 ERPO cases from 1/1/22 — today. In May and June of 2022, there have been 85 ERPO cases reported. With recent changes to New York’s red flag laws taking effect and heightened awareness of the law, those numbers are expected to increase. These increases come at a particularly bad time for NYSP Investigators who have seen their numbers dwindle due to retirement, transfers and a backlog in promotions. Currently, there are fewer than 1100 NYSP Investigators and Senior Investigators across New York State, when ideally there would be between 1200 — 1300. As recently as 2020, there were over 1200 Investigators and Senior Investigators, and in 2007 there were 1300.

“Every ERPO case takes our investigators between 1 — 3 days of work filing paperwork, conducting interviews, logging evidence, and preparing for and attending hearings,” said Dymond. “With our numbers already low, this is putting an incredible strain on our force, and taking time away from the other necessary duties. Further it is demoralizing to our members that they are out there trying to stop potentially dangerous people and no one providing the legal counsel to back us up.”