For the reasons set forth herein, the Court denied the TERPO application and set the matter down for a hearing for a Final Extreme Risk Protection Order on June 23, 2026….
At the outset, in issuing the denial of the Temporary Order, the Court found the request for a no-knock search warrant lacked evidentiary support in the Petition to grant the relief. The TERPO Application in this matter requested a search warrant for the homes of both Respondent’s mother and father, and to seize any firearms found therein. The application specifically requested the Court to authorize execution of the search “at any time of the day or night” and “without notice of the officer’s authority or purpose”—colloquially known as a “no-knock warrant.” The standard for the issuance of a search warrant pursuant to CPLR Article 63-A is governed by the Criminal Procedure Law.
The supporting affidavit of the superintendent appears to support the request for the search warrant by stating that: “[s]tudent’s father is known in the community as a licensed firearm dealer thereby indicating that student has access to firearmsin the home …” The affidavit further states that “[b]ased on my 26 plus years as an educator, the comment Student made to a peer, and the access Student has to and familiarity with firearms, I believe that Student represents a danger to himself and others and that he should not be permitted to use or possess firearms, or be in a household where he has access to them.” …
The Respondent, and his parents, are not convicted felons and Respondent was not charged with a felony crime, let alone any crime, despite the allegations contained in the Application.
The Court likewise finds no evidence that the alleged lawfully owned and secured firearms possessed by the Respondent’s father were actually accessible by Respondent. Rather, the Application states in a conclusory manner bereft of facts that Respondent has access to firearms because his father holds a Federal Firearms License (FFL) and runs a firearms business from his home. The Court notes that … the New York State “Safe Storage Act” … as well as regulations governing FFL dealers require secure storage of any firearms and ammunition that would be present at Respondent’s father’s home. {Notably, at the hearing Respondent’s father’s uncontroverted testimony was that Respondent has no access to firearms and that Respondent’s father had voluntarily allowed Saratoga County Sheriff’s Deputies to verify that all firearms were appropriately secured.}
That Constitutional rights are of paramount importance is a bedrock of our legal system, which flows to the search and seizure of an individual’s property …. “[No-knock warrants are] a very drastic procedure. In view of the harshness of the statute, it should be the obligation of our police officials to make a thorough and precise investigation when securing the facts and evidence upon which supporting affidavits are based; to do less is not only a violation of our civil liberties, but is also a fraud upon the court” ….
Other than the truthful allegations confirmed at the hearing that the Respondent’s father is a federally licensed firearms dealer, there was no support offered in the Petition or at the hearing to justify seizure of business (or personal) property of a non-party to this proceeding. There was no support or justification for the speculative and conclusory statements contained in the Petition that the Respondent possessed or was indeed familiar with firearms….
The Court now denies the issuance of a Final Extreme Risk Protection Order (“FERPO”) following the June 23, 2026 hearing. There are several reasons for this denial. Firstly, the Respondent is thirteen (13) years old….
The power of a court adjudicating a Red Flag Law petition is limited to separating the respondent from firearms by issuing an TERPO or FERPO. Critically in this case, and with most cases involving minors, even that power is limited because the Red Flag Law does not prohibit the presence of firearms in the home of the respondent if those guns lawfully belong to another person…. [I]t is illegal in the State of New York for a 13-year-old child to handle a firearm, much less to possess or own one. Indeed, the State makes it illegal for anyone under the age of 16 to possess a gun of any kind…. In short, before any TERPO petition was brought, the Respondent was legally barred from possessing any gun as a matter of law and the Court could grant no other relief greater than that which was already imposed.
The law does exempt from the under-16 prohibition the possession of a shotgun or rifle by the holder of a duly-issued hunting license. The youngest a person may be issued a hunting license is age 12, thus the Respondent is eligible. The Court inquired on the record as to whether or not the Respondent had a state issued hunting license; the response was “no.” Thus, the foregoing provisions establish that there is a blanket prohibition on the Respondent from owning, purchasing or possessing firearms of any kind. In light of that comprehensive legal bar already in place under statutory law, the Court agrees with Justice Schreibman and hereby finds that, it is plainly “unwarranted under existing law” to seek an ERPO against a child under eleven (11) years of age or any child under sixteen (16) years of age who has not been issued a state issued hunting license….
[T]he Respondent was taken into custody by the Saratoga County Sheriff for a mandatory psychiatric evaluation, he was transported, alone, in the back of a patrol vehicle to the hospital for the evaluation—in this case, without the knowledge or consent of his parents. The Respondent was then sued and brought to court to appear in front of a judge for a proceeding to determine whether he should not possess guns that he already could not legally possess. For a thirteen-year-old child, such an event would likely be terrifying and traumatizing. The Court questions how the bringing of a TERPO against any minor under sixteen (16) years old can be justified where there is no resolution that can be achieved under the current statute to advance the interests of the public or the potentially troubled minor child.
Here, it would appear that the Saratoga County Sheriff’s Office believed that Respondent might suffer from a mental illness. This must be, because they took Respondent into custody for an involuntary mental health evaluation and they have no lawful authority to do so unless they conclude that the subject “appears to be mentally ill and is conducting themself in a manner which is likely to result in serious harm to the person or others.”
At the FERPO hearing, other than testimony of the principal that Respondent left school that day with “our SRO [School Resource Officer] due to concerns over mental health stability with homicidal ideation,” Petitioner did not present a scintilla of medical evidence regarding Respondent’s mental health, either from medical professionals or from family or community members familiar with Respondent….
As the Court made clear on the record, the Respondent in this case has an extensive disciplinary history this academic year. There were twenty-seven (27) total disciplinary referrals …. As was testified to on cross-examination, none of these referrals (other than the subject referral) discusses a physical threat to another person or facility and could not be so construed by the Court upon review.
The referrals range from tardiness to class and copying homework to making wildly inappropriate comments and taunting other students and faculty. Taken on their face, these disciplinary referrals would make the Respondent appear to be a child who constantly and fundamentally has issues with authority and disrespects peers and teachers. As disheartening as it is to read some of the material therein, nothing in these referrals provides evidentiary support to the instant application, but it does underscore the fact that Respondent is a vulnerable child who needs continued guidance, discipline, and structure from his parents and community institutions such as his school.
{It would appear from the testimony that Respondent’s parents had not received notification of any of the prior disciplinary referrals this year. It also appears that the failure to receive these, as well as Respondent’s behavior in school, were discussed amongst the principal and the Respondent’s parents the prior year while other disciplinary referrals were discussed that year. The details of this are not clear from the testimony, but it seems that the current year referrals may not have been received by the parents due to Respondent having not received a suspension from school this academic year.
Both the mother and the principal testified that they have a good relationship and that the school has been supportive of Respondent in navigating behavioral challenges. The Court questions whether this application jeopardizes, to the detriment of the Respondent, that therapeutic and supportive relationship.} …
[T]he Court cannot forsee what impact, if any, the issuance of a FERPO would have upon Respondent. Equally, the Court cannot predict how the Respondent may evolve from a relatively young child into an adult and along the way hopefully begin to make better life decisions and become a productive and beneficial member of society. The Court finds that the best interests of the Respondent (and arguably society) are promoted by giving him every opportunity to begin adulthood without a strike against him. Notably, the current statutory sealing provision … has five express exemptions that would follow the Respondent for his life if a FERPO were to be issued.
The Appellate Courts have recognized that while a FERPO is sealed upon its expiration, its potential legal consequences endure: “as the ERPO nonetheless remains accessible to New York courts, New York police forces and departments, agencies responsible for issuing gun licenses, and any prospective employer of a police officer or peace officer, with respect to an application for such employment. Beyond legal consequences, an ERPO could additionally pose reputational consequences ….”
Every responsible adult involved in such decision making has an obligation to at least think about the potential consequences to the minor child of the outcome of a FERPO. If nothing else, had the FERPO issued, Respondent would always know that the educational system and the court branded Respondent as a danger in our society, namely a potential “school shooter.” A stigma such as that, coupled with the permanency of a FERPO on a [person’s] background, surely carries a lifetime of consequences that are still unknown. As it stands Respondent already must carry this stigma at school amongst his peers and will carry the stigma for at least the remainder of his educational experience….
The Respondent’s mother testified that the responding School Resource Officers of the Saratoga County Sheriff’s Office told her a “completely different story than the story I’m hearing today.” She testified in sum and substance that the investigation of the Sheriff revealed that the discussion amongst the children at issue in the incident surrounded a video game (Roblox) where there is a simulated school shooting game imbedded in the playing module. She thought that the investigation was cleared, that her son would be punished for talking about the school shooting portion of the video game and the matter would be resolved….
Taking the pleadings and record as a whole, the Court finds that the school district has not met its burden to prove by clear and convincing evidence that Respondent is subject to a FERPO. The only testimony which was not equivocal or inconsistent with other submissions and testimony in the case was the alleged statement by the Respondent to the principal following at least three rounds of questioning. The Court finds that this statement, while having been made by the Respondent to the principal, after the occurrence of the event, is tantamount to hearsay when evaluated in the context of the denials made in the prior interviews with the Respondent. Importantly, no first-hand witnesses were called to testify regarding the context in which the alleged statement was made.
There are two equally credible reasons for a thirteen (13) year old with an extensive disciplinary history to make such a confession to such a serious statement, (1) the child confesses because it is true; or (2) lies because it is convenient or satisfies the interrogation, and perhaps protects another child who said it. As such, absent testimony from the Respondent, the Court must consider this an out of court statement that is equivocal and inconsistent, and as it is not substantiated by other proof, it does not rise to the level of clear and convincing evidence ….
