New York Court Sides With Man Who Lost Guns Under ‘Red Flag’ Law

One of the many problems with Extreme Risk Protection Orders is that judges may decide it’s better to be safe than sorry when deciding whether to grant a petition. Who wants to be the judge that allowed someone to keep their guns, only to see them go on to commit a serious violent crime a short time later, right? 

Of course, it’s hard to point to any explicit evidence that proves judges are rubber-stamping ERPO petitions, but a look at the number of petitions filed and the number of individuals subject to either a Temporary Extreme Risk Protection Order or a final ERPO order shows the numbers are extremely close to one another. 

You can see that the number of petitions filed and granted exploded in 2022, when Gov. Kathy Hochul directed the New York State Police to file ERPO petitions whenever possible. So many petitions were granted that the NYSP actually ran out of room to store all of the guns troopers were collecting.

The state police have addressed their storage problem, but the number of ERPOs issued continues to grow. One of the 451 applications filed in January 2025 involved a Department of Motor Vehicles worker who was “red flagged” after allegedly displaying a rifle and pistol during a virtual meeting with staffers who were questioning him about his travel expense reports. 

That employee, who lives (or at least at the time, lived) in Connecticut, appealed the order, which was set to expire in January of this year. Nearly ten months after the order’s expiration date, the Appellate Division of state Supreme Court has determined that the state police failed to establish that the man, known in court filings as Brian LL, “was likely to engage in conduct that would result in serious harm to others.” 

The ruling says that while seeking the order, troopers argued that the presence of the guns on camera constituted an “indirect threat of implied workplace violence.”  

The ruling notes that an agency director on the call felt the placement of the guns was “very intentional” but that no one on the videoconference made mention of it at the time. The decision also noted the man’s comment about things “not going to go well” could have been a reference to the worker’s “stated plan to sue DMV for defamation or discrimination.”

Referring to the hearing in which the ERPO was granted, the decision says the man claimed the firearms were part of the room’s decor and that “he intended to clean and sell them.” When confronted with a social media post showing a bullet-riddled target captioned “feeling crazy,” the man said that was his way of telling his followers he had been to the shooting range for target practice.

The decision also referred to a State Police investigator’s report which found that the man’s legally owned weapons “were never brandished, mentioned or ‘otherwise used in any threatening manner’ but instead were purportedly placed to intimidate the videoconference participants.”

Police in Connecticut also conducted a welfare check on the man, and declined to file for an ERPO of their own, but that didn’t matter to the Supreme Court judge who gave the thumbs up to the New York State Police’s petition. 

On the one hand, it’s good to know that an appellate court will at least occasionally reverse one of these Extreme Risk Protection Orders. On the other hand, it’s not exactly a quick and easy process. It’s unclear whether the ERPO was renewed, but if not then Brian LL’s “relief” came months after the order expired and his guns were supposed to be returned to him. Even if the ERPO had been renewed for another year, it would have been set to expire in January 2027, so it would have been terminated just a few months early. 

That’s the other danger with a “better safe than sorry” attitude. When a judge gets it wrong, the consequences fall almost entirely on the person subject to the order. The judge who grants a questionable ERPO faces little downside. The gun owner, meanwhile, can spend months without his firearms, hire an attorney, pursue an appeal, and eventually be told that the government never had enough evidence to deprive him of his rights in the first place.

Brian LL ultimately got the ruling he was looking for, but did he get the relief he needed? If New York is going to use ERPOs thousands of times a year, there needs to be meaningful scrutiny on the front end, not simply the possibility that an appellate court will eventually correct a bad decision long after the damage has been done. 

“Better safe than sorry” might sound like a reasonable approach when you’re talking about potentially dangerous people and firearms, but when a constitutional right is at stake, “sorry” isn’t much of a remedy when those rights have been violated.

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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