Anonymous School District, Petitioner, v. Anonymous, a minor child, Respondent. (2026)

This matter stems from the filing of a Petition for a Temporary Extreme Risk Protection Order (herein "TERPO") under CPLR Article 63-A (commonly known as New York State's "Red Flag Law") against the Respondent by the Petitioning school district. Respondent is a thirteen (13) year-old. The names of the parties have been anonymized due to the age of the minor child pursuant to 22 NYCRR § 202.5(e)(1)(iii) and the New York Law Reports Style Manual § 12.4(a)(1-3).

On June 16, 2026, a Petition was filed seeking the issuance of the Temporary Order preventing the Respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun as well as seeking a "no knock" search warrant executable at any time of the day or night without notice of the officer's authority or purpose for an address associated with the Respondent's father and an address associated with the Respondent's mother, and the seizure of any firearms, rifles, or shotguns located therein pursuant to such warrant. In support of this Petition, the district filed an Affidavit of L., a teacher's aide, an Affidavit of the superintendent of the school district, and a printout of the Respondent's disciplinary referral record for the current academic year.

For the reasons set forth herein, the Court denied the TERPO application  ¹ and set the matter down for a hearing for a Final Extreme Risk Protection Order on June 23, 2026. Respondent and Respondent's parents were duly served June 17, 2026. Respondent and Respondent's parents appeared on the hearing date. After advising them of the potential outcomes as well as Respondent's right to counsel, Respondent, through his parents  ² , decided to go forward with the hearing. At the hearing, the Petitioner called as witnesses the school principal and the school superintendent. Respondent's mother and Respondent's father were called as witnesses for the Respondent. One exhibit  ³ was introduced on behalf of Petitioner. Following the close of proof and closing statements, the Court issued an oral denial of the Petition and now issues this written decision.

The Denial of the TERPO and Request for Search Warrant

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 sole basis in the Petition for the search warrant was that on June 16, 2026: "[w]hile [Respondent] and another student were in the hallway, he said to another student: 'I can't wait to shoot up the school.' When speaking with an administrator, [Respondent] initially denied making the comment but then admitted to making the comment."

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 firearms  ⁴ in the home . . . "⁵ 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."

CPLR § 6342(8), which provides for a court ordered search for firearms in these matters, expressly incorporates the provision of CPL § 690. The parameters of the criminal procedure law governing search warrants, and in particular, those dispensing with the usual "knock and announce" provisions are well-settled by the Courts (see, People v. Hanlon, 36 NY2d 549 [1975]; People v. Gordon, 2021 NY Slip Op 01093 [2021]; People v. Cotroneo, 199 AD2d 670 [3rd Dept. 1993]).

CPL § 690.50 provides, in part, that a police officer must, "give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof before entry and show him the warrant or a copy thereof upon request," unless, as relevant here, the search warrant "expressly authorizes entry without notice."

CPL §§ 690.35(4)(a)&(b) sets forth the legal standard for a search warrant application, including the standard for requesting all hours execution and without notice:

"A request that the search warrant be made executable at any time of the day or night, upon the ground that there is reasonable cause to believe that (i) it cannot be executed between the hours of 6:00 A.M. and 9:00 P.M., or (ii) the property sought will be removed or destroyed if not seized forthwith, or (iii) in the case of an application for a search warrant as defined in paragraph (b) of subdivision two of section 690.05, the person sought is likely to flee or commit another crime, or may endanger the safety of the executing police officers or another person if not seized forthwith or between the hours of 9:00 P.M. and 6:00 A.M."

"A request that the search warrant authorize the executing police officer to enter premises to be searched without giving notice of his authority and purpose, upon the ground that there is reasonable cause to believe that (i) the property sought may be easily and quickly destroyed or disposed of, or (ii) the giving of such notice may endanger the life or safety of the executing officer or another person, or (iii) in the case of an application for a search warrant as defined in paragraph (b) of subdivision two of section 690.05 for the purpose of searching for and arresting a person who is the subject of a warrant for a felony, the person sought is likely to commit another felony, or may endanger the life or safety of the executing officer or another person."

In the instant matter, the Application was filed at 2:45PM on June 16, 2026 during normal business hours on a weekday. The Application included no factual allegations that had the Court issued the search warrant, it could not have been reasonably executed before 9:00PM. 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 PL § 265.45, 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  ⁶ (cf., People v. Israel, 161 AD2d 730 [2nd Dept. 1990][evidence could be readily destroyed and criminal suspects may be armed and pose a danger to police]).

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 (Herman v. State, 78 Misc 2d 1025 [Ct. Cl. 1974] ["[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"]).

Subsequent to the hearing, on July 7, 2026, the United States District Court, Eastern District of New York issued a summary judgment decision in the matter of Wysocki v. Nassau County., No. 23-CV-8790-SJB-AYS, 2026 LX 321946 [E.D.NY July 7, 2026]. Wysocki is a civil lawsuit against the County of Nassau brought by husband and wife pistol license holders, whose licenses and guns were seized  ⁷ after the husband reported his daughter's mental health issues to authorities.⁸ In Wysocki, the Court found, the "initial firearms seizure and license revocation was not based upon their risk to others (or their risk of misuse). Instead, it was based on the [gun owners' child's] mental-health emergency and [the child's] danger to herself, based on firearms owned by others. And Defendants' ongoing refusal to return the firearms or licenses appears to be entirely arbitrary or unlawful" (Id).

Thus, the Court's initial determination to deny the no-knock warrant in connection with the TERPO application was and remains a legally unsupported overreach by the School District. 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.⁹ 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 definition set forth in CPLR Article 63-A defines the term "possess" as: means to have physical possession or otherwise to exercise dominion or control over tangible property as defined in PL § 10.00[8]. (See CPLR § 6340[4]). Notably, the Petition, which was prepared on UCS Form UCS-6341, requires that a list be provided of a description of all firearms, rifles, and shotguns known or believed to be owned, possessed or accessible  ¹⁰ to the Respondent and the respective location of each firearm, rifle or shotgun. This section, although having the box checked, was blank as to description and location of any firearms.

Denial of the Final Extreme Risk Protection Order

The Court denied the issuance of the TERPO based upon the Court's determination that (1) no relief could be granted by the Court beyond restrictions already in place by operation of law; (2) the lack of evidentiary support for the petition under the applicable legal standard; and (3) the vulnerability of the Respondent.

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. In dealing with TERPO applications filed against minor children, the Court strongly credits and is guided by the principles set forth in the decision of the Hon. Julian D. Schreibman in New York State Police v. K.L., 248 NYS3d 881 [Ulster Co. Supreme Ct. 2025] and borrows portions of his analysis herein. In this decision, Judge Schreibman dissects the particularities of NYS CPLR Article 63-A and the struggles of the Courts in applying the statute to the flood of petitions that are now filed post Gov. Hochul's Executive Order #19, issued on May 18, 2022.¹¹

The process of seeking a FERPO generally begins when a petitioner applies for a TERPO. The Red Flag Law limits who can petition for a TERPO to certain categories of persons, including family members, teachers, health care providers and law enforcement. In practice, substantially all TERPO applications are made by law enforcement. A TERPO application can be brought ex parte but must be commenced in the County in which the respondent resides. (See CPLR § 6341).

A court "may" issue a TERPO "upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others," as those terms are defined in the Mental Hygiene Law ("MHL"). The court "shall" consider "any relevant factor," but must consider seven statutorily enumerated "acts of the respondent." (CPLR § 6342[2]). By law, a court must adjudicate a TERPO petition "on the same day" that it is filed. (CPLR § 6342[1]).

Whether the TERPO is granted or denied, the court must schedule an evidentiary hearing to determine whether to issue a FERPO.¹² While the factors to be considered are the same, the petitioner's burden of proof at the FERPO hearing is higher than at the TERPO stage. To obtain a FERPO, the petitioner must still establish that the respondent is likely to engage in conduct that would result in serious harm to the respondent or others, but the petitioner must prove this by clear and convincing evidence (CPLR § 6343[2]). At the hearing, the court may consider "any evidence" submitted by either side, along with the sworn petition itself, and a statutorily-authorized background report prepared by the relevant law enforcement agency.

The Impossibility of CPLR Article 63-A Being Applied to Most Minor Children

As noted in Judge Schreibman's decision, and as applicable herein, the Red Flag Law is one of many legal tools used by the State of New York to reduce gun violence, each with its own scope and application. The Red Flag Law does not address any weapons or injurious objects other than firearms, nor is it the vehicle through which affirmative mental health or other services can be delivered to a person in crisis. 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 (see, New York State Police v. K.L., Id. at 886) (emphasis added).

As in New York State Police v. K.L., in the instant matter, it 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. (See Penal Law ["PL"] § 265.05). "A person who violates the provisions of this section shall be adjudged a juvenile delinquent." (Id.). 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.¹³

The Vulnerability of the Respondent

A key point raised by Judge Schreibman and adopted by this Court is that since the issuance of the Governor's Executive Order there has been a sharp increase in the filing of TERPO applications,¹⁴ with a significant portion of these directed at at-risk persons, including troubled children, senior citizens, persons with serious chronic illnesses, and individuals processing trauma through acts of non-suicidal self-harm. As with Judge Schreibman's home county of Ulster, it has also been this Court's experience that, in the majority of cases in Saratoga County, a respondent does not possess any firearm, and has no intention of doing so. As a result when the TERPO or FERPO is granted, no firearms owned by the respondent are seized and neither the respondent nor the public are made any safer. Instead, the aggressive pursuit of TERPOs in all scenarios where a person may be engaging in conduct that falls under MHL §§ 9.39(a)(1) or (2) simply raises the prospect of further traumatizing respondents who are already an at-risk population and is not providing this portion of the population with the mental health treatment that they likely desperately need.

As with the minor child in New York State Police v. K.L., here the 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  ¹⁵ 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." (see, MHL § 9.41[a]) (emphasis added). At the FERPO hearing, other than testimony of the principal that Respondent left school that day with "our SRO 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. No records from the County were introduced into evidence at the final hearing to support any basis for a MHL § 9.41 transport. The legal basis for the Respondent's transport to the hospital is entirely unknown and unsupported in the record.

Interestingly, the Sheriff's Office deputies, despite being active in the school as resource officers, present on the scene the day in question, having spoken with Respondent's mother and school officials, then having transported Respondent to the hospital, did not apply for a TERPO, did not file criminal charges against the Respondent, and were not called as witnesses by Petitioner.

CPLR § 6341 mandates, in part, that a police officer "shall" file a TERPO application upon "receipt of credible information that an individual is likely to engage in conduct that would result in serious harm to themselves or others . . . unless such petitioner determines that there is no probable cause for such filing." For all other classes of petitioners listed in the statute -- including school districts -- the language is permissive, in that they "may" file a TERPO (Id.). As such, a logical conclusion can be reached that the Sheriff's Office School Resource Officers either did not believe Respondent to be a threat to others or they determined there was no probable cause basis for such a filing. Additionally, it does not appear from the record that the school ever requested the Sheriff's Office to undertake any such action, but instead filed for the TERPO on their own the same day.

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 admitted to evidence at the hearing as Petitioner's Exhibit 1, including the subject incident.¹⁶ 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.

"While a Court must make findings that support its decision, the question that the statute puts to a Court is not to describe a respondent's past conduct but to make an evidence-based prediction about the respondent's future conduct . . . . While medical evidence is not statutorily mandated, as a practical matter where an [TERPO petition] is based on a respondent's mental health, a petitioner will be hard-pressed to demonstrate what a respondent's likely future conduct will be without some form of medical evidence" (See, New York State Police v. K.L. at 895 and 896).

Evidence about a respondent's mental health may be introduced through means other than medical records or expert testimony. A respondent may themselves provide testimony or a respondent's family members may well be able to elucidate the mental well-being of a respondent. The Petitioner did not pursue any such testimony  ¹⁷ at the hearing of this matter other than counsel's statement that "[the district] did intend to come today with additional medical information that it did not have." It would also appear from the record that the school asked for copies of the MHL evaluation, but Respondent's parents did not provide that to the school.¹⁸

As stated and cited by Justice Bryant in (New York State Police v. R.J.B., 87 Misc 3d 404, 408 [Ulster Co. 2025]), this Court's function to act as parens patriae to minor children

"remains available.... Nor can this traditional function be abrogated by statute, since it is founded in the equity powers of the court, as derived from the chancery... In exercising their traditional equity powers, courts have been guided by the principle that the paramount, if not the sole, determining factor is the best interests of the child . . . the more difficult determination as to what is in the child's best interests must be resolved. That highly sensitive and, at times, most difficult determination must be made on the basis of no criteria other than the furtherance of the child's welfare and best interests" (New York State Police v. R.J.B. citing M. v. Nassau County D.S.S., 58 AD2d 111, [2nd Dep't., 1977]).

As in New York State Police v. K.L., the 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 in CPLR Article 63-A 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 (see CPLR § 6346 [1] [a]-[e]; Matter of Veronica P. v Radcliff A., 24 NY3d 668 at 671-672 [2015]). Beyond legal consequences, an ERPO could additionally pose reputational consequences similar to those identified by the Court of Appeals in Matter of Veronica P. v Radcliffe A. (see Matter of Veronica P. v Radcliff A., 24 NY3d at 672-673)." (See also, Matter of Orangetown Police Dept. v. Cashell, 238 AD3d 1152 [2d Dep'. 2025] and Matter of Preller v. Collesano, 2026 NY App. Div. LEXIS 3964, 2026 NY Slip Op 03809, 2026 WL 1741390).

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 peron'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.

Failure to Meet the Statutory Evidentiary Standard

Secondly, the affidavits and exhibits filed in support of the Petition were inconsistent. L's affidavit stated that " . . . I was in a classroom working with two students when I overheard [Respondent's] voice state to another student: 'I can't wait to shoot up the school.' " (emphasis added). The superintendent's affidavit stated that "[a] Teaching Assistant was walking by Student and the peer and overheard the comment." (emphasis added). The Student Referral submitted as an exhibit which was submitted by the school principal states that: "[w]hile [Respondent] an d (sic) another student wer (sic) in the hallway, he said to the other student 'I can't wait to shoot up the school.' A staff member overheard this comment and stepped into the hallway which then prompted [Respondent] to try and blame another 3rd student for making the comment to which he said '[3rd students (sic) name], why would you say that you're going to shoot the school' [Respondent] initially denied saying anything and tried to say that the other student that was with him made all the comments. [Respondent] later admitted to making these comments" (emphasis added).

Petitioner's Failure to Meet the Burden of Proof

Third, the school district failed to meet its burden under the legal standard applicable to a FERPO finding. "[T]he court must be able to make findings, under a clear and convincing standard" (see Kelly v. E.R., 84 Misc 3d 555, 561 [Ulster Co. Sup. Ct. 2024]). "Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened" (see Matter of Gail R. [Barron], 67 AD3d 808, 811 [2d Dept 2009]). The Court of Appeals has recently held that clear and convincing evidence is "the most demanding burden in the civil legal system" (Matter of K.Y.Z. v. Good Shepherd Services, 44 NY3d 657 [2025]). Clear and convincing evidence "is neither equivocal nor open to opposing presumptions" (In re Duane II, 151 AD3d 1129, 1131 [3rd Dept. 2017]). Indeed, the standard "forbids relief whenever the evidence is loose, equivocal or contradictory" (Matter of K.Y.Z., Id. at 677 quoting Matter of Westchester Med. Ctr. (O'Connor), 72 NY2d 517, 529 [1988]). Proof in an ERPO proceeding which is based solely on hearsay does not meet the clear and convincing standard (see, Preller v. Collesano, 2026 NY App. Div. LEXIS 3964, 2026 NY Slip Op 03809, 2026 WL 1741390). In particular, while reliable hearsay may be used to support a finding under this standard, where such out of court statements "are equivocal or inconsistent, and not substantiated by other proof, they do not rise to the level of clear and convincing evidence" (People v. Dominie, 42 AD3d 589, 591 [3rd Dept. 2007]; see also People v. Stewart, 61 AD3d 1059, 1060 [3rd Dept. 2009][child's equivocal hearsay statement was not clear and convincing evidence]).

In the initial Order denying the TERPO, the Court required that: "[t]he Petitioner shall appear on the return date for the final hearing with counsel and witnesses with firsthand knowledge of the allegations prepared to testify." No first-party witness to the initial statement was produced, despite the submission of a supporting Affidavit from one L., a teacher's aide, who allegedly overheard the initial statement. It is notable from her Affidavit that L. merely overheard the comment from the hallway while she was in another room. Her Affidavit standing by itself does not meet the clear and convincing standard and she was not called as a witness in the final proceeding where perhaps her testimony might have been able to set forth onto the record as to exactly what occurred, what she heard, from whom, and where exactly she was on June 16, 2026. Absent her testimony, this remains unclear, and the Affidavit is no more than hearsay.

The principal testified at the final hearing that it was reported to him via the telephone that on June 16, 2026, Respondent stated "I can't wait to shoot up the school". The principal testified that fearing the worst, he ran down the hallway towards the location of the telephone call and saw Respondent with another student, the students were then separated and questioned. The principal testified that on the first round of questioning the Respondent denied making the statement and related that another student did. Another round of questioning followed, and Respondent continued to deny making the statement and again attributed it to another student. The principal testified that eventually Respondent said "Yeah, that was pretty stupid I'm sorry I said that" and then later stated that he admitted to saying "I can't wait to shoot up the school". During cross-examination the principal was asked the following question:

Q: Earlier in your statement, first you said that [Respondent] yelled that he was going to shoot up the school and then you said that he was overheard saying that. Was it yelling or was it a comment that was overheard?

A: My understanding, as reported to me through somebody interviewing  ¹⁹ , it was much more than a comment to a classmate. It was heard from three different classrooms within the proximity so I would constitute the word yelled more than comment. (emphasis added).

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.²⁰ 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" (People v. Dominie, 42 AD3d 589, 591, 838 N.Y.S.2d 730 [3rd Dept. 2007]; see also People v. Stewart, 61 AD3d 1059, 1060, 876 N.Y.S.2d 208 [3rd Dept. 2009]). As such, the school district failed to meet its burden and the Petition must be denied and dismissed.

Conclusion

In reaching the determination to deny the FERPO, it is important to note the legal calculus the Court must undertake in deciding this matter does not in any way undermine the severity of the underlying facts. The witnesses for the Petitioner and Respondent were all credible. It is unsurprising that the testimony of the Petitioner's witnesses was both credible, and at the same time, was not entirely consistent or reliable. Clearly, on June 16, 2026 some student at the school made a statement to the effect of "I can't wait to shoot up the school." Whether this was prompted by an off-hand comment in reference to a video game, a prank, or yelled with malicious intent, the testimony was clear that it set off a traumatic morning of panic, terror and confusion from the testifying witnesses and surely must have had the same effect on students and staff at the school. Just as one faces liability for yelling "fire" in a movie theater or "bomb" in an airport, every child should know that a comment related to a school shooting will result in immediate action and harsh consequences.

Respondent currently has imposed upon him a five-day suspension at the start of the next academic year and is facing a Superintendent's Hearing  ²¹ where further punishment may be imposed based upon the Respondent's disciplinary history, the threat to the school and his alleged statement. Hopefully, Respondent will have some long thoughts on all of his disciplinary history and his involvement in this incident and change the direction of his academic performance.

THEREFORE, upon all the pleadings and proceedings heretofore had herein, and due deliberation having been had;

NOW, it is

ORDERED, that Petitioner has not proven by clear and convincing evidence that the Respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a); and it is further

ORDERED, that the Petition is dismissed in its entirety; and it is further

ORDERED, that the Petitioner shall serve a copy of this Order and the accompanying UCS-6346/S and UCS-6343/D upon the Respondent before August 7, 2026.

Dated: July 24, 2026

At Ballston Spa, New York

HON. JONATHAN G. SCHOPF, A.J.S.C.

FOOTNOTES

1.   The official UCS form for TERPOs is captioned as an "Application." These matters are special proceedings, and as such, "Application" and "Petition" are used interchangeably.

2.   In TERPO proceedings involving minors, where for example a child is reliant upon his parent (who is a party witness or petitioner) for transport to court and the parent fails to do so or the parent's interests are otherwise in conflict with the child's, a Guardian ad Litem should be appointed. See, New York State Police v. R.J.B., 87 Misc 3d 404 (Ulster Co. 2025). However, in this matter, both parents were present in court and appeared to be aligned in interest with the Respondent, so no GAL was appointed. Indeed, Respondent's parents were respectful, well-spoken and were genuinely protective and concerned for their child.

3.   The Respondent's disciplinary history for the current academic year.

4.   The term "firearm" while being commonly recognizable in normal speech has different defined meanings under NYS Penal Law and federal law. As this Decision refers to both state and federal law, for purposes of this Decision, it should be assumed that when there is a reference to the term "firearm" that the definition encompasses all types of rifles, pistols, revolvers, handguns, and shotguns of whatever style and function.

5.   There is no allegation asserted that the mother has rifles, shotguns or firearms in her separate home.

6.   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.

7.   The Wysockis were able to transfer their firearms to third parties prior to their actual seizure by the county, but their pistol licenses remained suspended.

8.   In Wysocki, prior to the suspension and seizure, the police had confirmed that all firearms were properly stored and secured and that their child did not have access to them same.

9.   Nor is such relief available under CPLR Article 63-A.

10.   This language in the form is puzzling to the Court and the legislative intent is murky. The terms "access" or "accessible" do not appear as defined terms in the statute and would seem to be in direct conflict with the defined term of "possess". An object can be accessible and yet at the same time not possessed, as the term is defined. CPLR Art. 63-A is not intended to deprive non-parties of their property (see, CPLR § 6344[2]). Yet the enabling statute for the authority of the Chief Administrator of the Courts to promulgate these forms states in pertinent part: "[t]he chief administrator of the courts shall adopt forms that may be used for purposes of such applications and the court's consideration of such applications. Such application form shall include inquiry as to whether the petitioner knows, or has reason to believe, that the respondent owns, possesses or has access to a firearm, rifle or shotgun and if so, a request that the petitioner list or describe such firearms, rifles and shotguns, and the respective locations thereof, with as much specificity as possible" (see CPLR § 6341) (emphasis added). Clearly, sound public policy would dictate that minor children should not have unfettered access to weapons or dangerous objects. Notwithstanding laws that govern such conduct, parents also have a moral obligation to secure such items in their home, whether they be poisonous cleaning chemicals or firearms. With firearms, and in particular those persons who are licensed to sell firearms, statutory laws apply and thus the Court issued the following language in its denial order: "Respondent's father shall ensure that his obligations as a Federally Licensed Firearms Dealer are followed and that any rifles, shotguns, or firearms are properly secured within the business area of the [gun store] so as to prevent access by unauthorized persons. Respondent's mother and father shall follow the provisions of the NYS "Safe Storage Act" (Penal Law § 265.45) in regard to any firearms, rifles, or shotguns in their respective homes that are personally owned. The Court notes that these storage requirements are requirements already imposed by law and/or rules and regulations of the Bureau of Alcohol, Tobacco and Firearms and the State of New York and should already be in place. These requirements are sufficient to prevent access to rifles, shotguns, or firearms by the Respondent (or others)."

11.   Saratoga County is no stranger to TERPO filings and on a per capita basis, has the largest number of TERPO submissions in upstate New York in its peer group at 1 per 1,051 residents. As of the date of this Decision, more than 109 filings were made this year, putting the filing rate on par with last year's YTD comparison of 110 filings. 2025 saw 224 filings making it the third highest by filings of any upstate county. Dutchess County had 273, and Orange County had 251. As of the 2020 census, Dutchess has a population of 295,911, Orange has a population of 401,312 and Saratoga 235,509. Designated judges in Saratoga County handle final ERPO hearings twice a week, every week and are on call 24/7 for TERPO filings. By comparison, Saratoga's next-door neighbors in 2025 had dramatically lower numbers: Albany County (81 filings) (1 for every 3,887 residents), Schenectady County (73 filings) (1 for every 2,165), and Rensselaer (70 filings) (1 for every 2,301). As an extreme example, Erie County had the exact same filing numbers for 2025 as Saratoga County, but a population of 954,236, leaving 1 TERPO filed for every 4,260 citizens thus putting Saratoga County almost four times higher than Erie County. The undersigned attributes this to the 2022 Executive Order of Gov. Hochul titled "Directing the State Police to File Extreme Risk Protection Orders" which mandates the NYS Police to file TERPOS when there is probable cause to believe that a respondent is likely to engage in conduct that falls under MHL §§ 9.39(a)(1) or (2). Other than the Cities of Saratoga Springs and Mechanicville and a few small municipal police departments, Saratoga County has virtually no municipal police departments and relies on the State Police and County Sheriff for the majority of its law enforcement coverage, thus the statistics reveal a higher rate of filing in Saratoga. The bulk of Saratoga County filings are from the NYS Police, however the Sheriff's Department files its share of Applications, for reasons explored herein, the Court is perplexed that this application came from the school district and not the Sheriff's Office.

12.   The Court notes this unusual statutory scheme requires a final hearing even after a petitioner fails to meet the initial probable cause standard of proof. Other petitions for temporary relief that survive an initial denial, only continue forward due to having an independent underlying cause of action (denial of an order of protection on a family offense petition; denial of a preliminary injunction in a civil lawsuit; denial of temporary emergency relief in an Article 81 guardianship) — whereas a TERPO application has no independent cause of action, yet a final hearing is still required.

13.   The Court need not determine on the facts here whether the "hunting license" argument frequently asserted by the New York State Attorney General's Office in TERPO proceedings and discussed in Justice Schreibman's decision for a Respondent who is a minor but actually is in possession of such a license passes judicial muster and declines to so rule today.

14.   Justice Schreibman attributes this to the fact that "the Executive Order was directed to the NYSP — the statewide law enforcement agency over which the Governor has direct authority — the increase in ERPO applications has not been uniform statewide but rather has been focused on rural communities where NYSP provides a greater degree of law enforcement support. Although the law was also subsequently amended to encompass all police agencies, this Court has not observed any significant increase in applications, at least in this County, from agencies other than NYSP". This Court agrees with this assessment, see footnote 10, supra.

15.   It is unknown if the Respondent was restrained in handcuffs or a similar restraint.

16.   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.

17.   Petitioner's counsel asked one question of Respondent's mother, none of Respondent's father and did not call the Respondent as a witness nor any Saratoga County Sheriff's deputies with knowledge of the day's events.

18.   Nor were Respondent's parents obligated to provide the same.

19.   Such secondhand account exemplifies the issue of unreliable hearsay, as discussed, supra.

20.   Even though the testimony of the mother was riddled with hearsay and need not be examined at depth, the fact that it appears this is an actual on-line game that is part of a large-scale software developer is disturbing and calls into question the parents' awareness of the content of their child's online activities.

21.   Counsel for the district stated in her closing argument that a TERPO filing is "the only platform the district has to pursue to ensure that it maintains safety to all of its faculty members, students and otherwise." Clearly, the district also has other internal disciplinary remedies available. The Court once again notes that despite the fact that school resource officers were present and transported the Respondent to the MHU, no TERPO was pursued by the Saratoga County Sheriff's Office and no criminal charges were filed.

Jonathan G. Schopf, J.