Right to counsel - Extreme risk protection orders

04/20/2023, Litigation, Other subject area

In a recent line of cases, some courts have suggested that respondents in temporary and plenary extreme risk protection order (“TERPO” and “ERPO,” respectively) matters may be entitled to certain due process protections including the right to counsel. See G.W. v. C.N., 181 N.Y.S. 3d 432 (N.Y. Sup. Ct. 2022); see also J.P. v. W.M., 2023 N.Y. Slip Op. 23125 (N.Y. Sup. Ct.).

In G.W. v. C.N., the Monroe County Supreme Court addressed the question of “whether [the extreme risk protection order statute] sufficiently protects a New York citizen's due process rights when, as here, the state denies a fundamental right, to wit: by infringing on that citizen's right … under the Second Amendment of the United States Constitution.” 181 N.Y.S. 3d at 435.  The G.W. court held that “the statute does not sufficiently protect a citizen’s rights and is therefore unconstitutional.” Id.  Despite claiming that it was analyzing the statute under the due process clause (it did not specify whether it was interpreting the U.S. or New York Constitution), the court made no mention of Lassiter v. Dep't of Social Services, 101 S.Ct. 2153 (1981) nor Turner v. Rogers, 131 S.Ct. 2507 (2011), seeming instead to engage in a cursory equal protection clause analysis.


The G.W. court relied on the U.S. Supreme Court’s decision in McDonald v. City of Chicago, Ill. in emphasizing that “the Second Amendment is not a 'second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,'" 181 N.Y.S.3d at 435 (quoting McDonald, 130 S.Ct. 3020, 3044 [2020]), and asked rhetorically, "Why should the law not treat similarly situated people the same, with the same Constitutional guarantees and protections, if both are deemed to present as having a 'likelihood to result in serious harm.'" Id. at 436; see also R.M. v. C.M., 2023 N.Y. Slip Op. 23088 at *1-2 (N.Y. Sup. Ct.) (Orange Cty. decision relying on G.W. to reach the same conclusion).  The court took issue with the fact that involuntary medical treatment and civil commitment respondents have due process protections—including the right to counsel—that are not afforded to ERPO respondents, despite both using the similar standard of "likelihood to result in serious harm." G.W., 181 N.Y.S. 3d at 439-40 (citing Rivers v. Katz, 495 N.E.2d 337 [N.Y. 1986] and Mental Hyg. § 9.31.).


Next, in J.P. v. W.M., the Supreme Court of Franklin County moved sua sponte to appoint counsel for an ERPO respondent, finding appointment necessary under due process:


At best, the failure to allow for counsel under Article 63-A ERPO was the result of short-sightedness on the part of the legislature.  At worst, it was an attempt to deny indigent respondents the same due process protection under the ERPO law that has been afforded to respondents in other civil proceedings when their liberty is in jeopardy.


2023 N.Y. Slip Op. 23125 at *2 (N.Y. Sup. Ct.).  The J.P. court held: 


[T]his Court feels compelled by its sworn oath to uphold the state and federal constitutions, as well as its ethical obligation to safeguard the rights of individuals appearing before it, to assign counsel upon the request of this or any indigent respondent where it is apparent on the face of the ERPO application that the allegation involves a criminal investigation, potential criminal liability, and a possible loss of liberty... The Court finds every respondent is entitled to representation under circumstances such as these, and if that person cannot afford an attorney, one should be provided. 


2023 N.Y. Slip Op. 23125 at *3.  Like the G.W. court, the J.P. court made no mention of Lassiter nor Turner v. Rogers in its analysis.  It only mentioned Mathews v. Eldridge in passing for the proposition that “due process is flexible,” reasoning, “Our state and federal constitutions demand more protection than is set forth in the ERPO statute, especially where, as here, the party dynamics involve legal expertise on the one side … and a lay person respondent not trained in the law whatsoever on the other side.”  The J.P. court also analogized to the Family Court Act, which “states in part, ‘Persons involved in certain family court proceedings may face the infringement of fundamental interests and rights, including ... the possibility of criminal charges, and therefore have a constitutional right to counsel in such proceedings.’" J.P., 2023 N.Y. Slip Op. 23125 at *1 (emphasis in original) (citing N.Y. Fam. Ct. Act § 261).  However, the J.P. court never fleshed out its statement about the respondent's liberty being "in jeopardy", a statement that is seemingly at odds with the fact that the only immediate consequence of an ERPO proceeding is the loss of the weapon at issue. Its opinion seemed to suggest it was concerned either about an indirect liberty interest (i.e., that liberty could be at issue down the road if the respondent violates the ERPO) or that something from the ERPO hearing might be used against the respondent in their criminal proceeding. 


However, in J.B. v. K.S.G., decided just one day after J.P., the Cortland County Supreme Court reached the opposite conclusion of J.P., finding “ample procedural safeguards” to satisfy due process, including the “right to be represented by counsel.” 2023 N.Y. Slip Op. 23099 at *5 (N.Y. Sup. Ct.).  It cited to Mathews v. Eldridge only for the proposition that “The core of due process is an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’” Id. at *4-5 (internal citations omitted).  The J.B. court erroneously justified the lack of a right to counsel in ERPO proceedings on the grounds that "there is no constitutional right to counsel in civil proceedings.” Id. at *5 (emphasis added).  In maintaining categorically that there is no constitutional right to counsel in civil cases, the court relied on Matter of State of New York v. Raul L., 988 N.Y.S.2d 190, 198 (2014), a case analyzing only the Sixth Amendment, as opposed to due process, and failed to acknowledge cases from New York's history recognizing a right to counsel in certain types of civil cases, most notably In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972) (finding right to counsel in termination of parental rights cases).


Similarly, another case from April 2023 decided against the right to counsel in ERPO matters.  In Haverstraw Town Police v. C.G., a case from Ulster County, the court conceded that although "[a]n ERPO respondent attending a hearing, without counsel, could make admissions that might later be used against him or her[,]" and "Respondent identifies genuine concerns and reasons why appointed counsel should be available to ERPO respondents, neither the U.S. nor the New York Constitutions require the provision of counsel in proceedings such as these." 190 N.Y.S.3d 588 (N.Y. App. Ct. 2023).  

The court cited only to Turner v. Rogers in its analysis, reasoning that "the right to counsel in civil proceedings is tied to the risk of incarceration" and "[e]ven when incarceration is possible, the right to counsel may not attach." Id. at 600 (citing Turner v. Rogers, 564 U.S. 431, 441-42 [2011]).  The Haverstraw court went on to say: 

Here, there is no risk at all of incarceration. The only consequence of an ERPO is the denial of access to guns for a period of time. None of the usual liberty restrictions associated with orders of protection — limiting where a person can go or with whom they can associate — are present. The suggestion that there could be future criminal proceedings is purely speculative and, in any event, a respondent would have access to counsel in that proceeding.

A ruling that counsel are constitutionally required for ERPO respondents would be a significant expansion of Sixth Amendment law. Such an expansion is best left for higher courts or, if it deems appropriate as a matter of public policy to provide for such representation, to the Legislature.


Appointment of Counsel: categorical Qualified: yes