New York State Police, Petitioner, v. M.K., Respondent. (2026)

In this proceeding, the State Police are seeking an extreme risk protection order ("ERPO"), pursuant to CPLR Article 63-A, to prohibit a 14-year-old boy ("M.K.") from being able to legally possess a gun for a period of one year. The issue presented is whether the petitioner met its burden of proving, by clear and convincing evidence, that M.K. is likely to engage in conduct that would result in serious harm to himself, where the evidence showed that he contacted the mental health crisis hotline and stated to the operator that he was going to stab himself. For the reasons set forth below, the Court finds that this evidence was insufficient to satisfy the petitioner's burden and therefore denies the petition.

A hearing in this matter was scheduled pursuant to CPLR 6342(5) to determine whether an ERPO should be issued, after the Court (Hon. Michael J. Hartnett, AJSC) denied the petitioner's application for a temporary ERPO. At the hearing, the Court considered the petition, the supporting investigative report, and the testimony of two State Troopers (Troopers B. and R.). Neither M.K. nor M.K.'s parents appeared at the hearing or requested an adjournment.¹

The evidence presented by the petitioner demonstrated that M.K. contacted the mental health crisis hotline ("988") and stated to the operator that he was going to stab himself. Two Troopers visited M.K.'s residence in response to this threat after it was apparently reported to law enforcement. Trooper B. interviewed M.K., who admitted to calling the 988 hotline and making this statement to the operator. M.K. informed Trooper B. that, since speaking with the 988 hotline operator, he decided that he would not harm himself. M.K. explained that he had called the hotline because he had been very stressed out with starting school in the fall, and his father had been making him feel bad. Trooper B. confirmed that M.K. did not take any action to harm himself that day.

In addition, Trooper R. spoke with M.K's mother over the phone. She advised that M.K. had a history of mental health issues, and that he had been taking new medication that appeared to be making his thoughts worse. M.K.'s mother also advised there were no firearms in the residence. There was no discussion about prior instances of harm.

Based on the investigation, Trooper B. determined that M.K. required further evaluation and assistance. She secured and transported M.K. to Saratoga Hospital where he was turned over to the Mental Health Unit Staff without incident.

CPLR Article 63-A (also known as the "red flag" law) sets forth the basic procedure for law enforcement agencies to request a court order to temporarily keep guns away from people who are likely to use them to hurt themselves or others. Such an order prohibits a respondent from purchasing or possessing a firearm, rifle, or shotgun for up to one year.² The statute is intended to help prevent and reduce the number of mass shootings, suicides, and other acts of gun violence.

To obtain a final ERPO, a petitioner must establish that a respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others (see CPLR 6343[2]). There must be either, "1. substantial risk of physical harm to themself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that they are dangerous to themself, or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a][1]-[2]; see CPLR 6343[2]).

"The court may consider the petition and any evidence submitted by the petitioner, any evidence submitted by the respondent, any testimony presented, and the report of the relevant law enforcement agency submitted [for the proceeding]" (CPLR 6343[2]). In addition, the Court must consider various factors or so-called red flags, taking into consideration the date when the event(s) occurred and the age of the person at the time (see id.; CPLR 6342[2]). Such red flags include, but are not limited to, the following acts of the respondent:

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

(b) a violation or alleged violation of an order of protection;

(c) any pending charge or conviction for an offense involving the use of a weapon;

(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

(e) any history of a violation of an extreme risk protection order;

(f) evidence of recent or ongoing abuse of controlled substances or alcohol;

(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor; or

(h) evidence of recent acts of aggravated cruelty to animals " (CPLR 6342[2]).

A petitioner seeking a final order (ERPO) has the burden of proving his or her case by clear and convincing evidence (see CPLR 6343 [2]). To satisfy this standard, the evidence must make it "highly probable that what [he or she] claims is what actually happened" (PJI 1:64; see Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept 2017]). This requires "evidence that is neither equivocal nor open to opposing presumptions, and it forbids relief whenever the evidence is loose, equivocal or contradictory" (Matter of Monto v Zeigler, 183 AD3d 1294, 1295 [4th Dept 2020] [internal quotation marks and citations omitted]).

Here, even when viewed in the light most favorable to the petitioner, the proof falls short of establishing, by clear and convincing evidence, that an ERPO should be issued. Rather, the evidence merely demonstrates that M.K. made a single threat of self-harm which he later abandoned before taking any action to harm himself. No other proof was presented to support a finding, by clear and convincing evidence, that M.K. had recently engaged in any other dangerous or risky behavior.

Again, where an ERPO is sought to prevent self-harm, the plain language of the statute limits its application to only those cases where a respondent, through his or her conduct, creates a "substantial risk of physical harm to themself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that they are dangerous to themselves" (Mental Hygiene Law § 9.39 [a][1] [emphasis added]; see CPLR 6343[2]). In addition, while the statute further requires consideration of "any relevant factor," including "a threat" of violence directed toward oneself, the statute does not require a Court to issue an ERPO based solely on one threat of self-harm. To the contrary, the plain language of the statute appears to expressly forbid the issuance of an ERPO in such circumstances (one threat) unless there is other evidence that the respondent is dangerous to himself (Mental Hygiene Law § 9.39 [a][1]; see CPLR 6343[2]). Again, in this case, no such "other evidence" was presented and, as such, the petitioner has failed to establish a prima facie case to support the issuance of an ERPO.³

Further, even assuming for the sake of argument that the petitioner's proof established a prima facie case, the Court would still find that the evidence is not persuasive enough to issue an ERPO. While the Court agrees with the State Police that the making of a single threat of self-harm presents a potential risk of danger, the conduct in this case did not create "a substantial risk" of danger. M.K. made the threat of self-harm while seeking out help to avoid the danger from occurring. He further abandoned his plan prior to taking any action to harm himself. M.K. also cooperated with law enforcement and visited the hospital for further evaluation. There is also no evidence that M.K. has ever made any other threats of self-harm, that he ever attempted suicide, or that he ever engaged in any "other conduct" demonstrating that he is dangerous to himself. There is also no evidence that M.K. has engaged in any violence or performed any of the conduct specified in CPLR 6342(2) aside from making this one threat.

This case stands in stark contrast to those cases in which the circumstances justified the issuance of an ERPO. In Anonymous Sch. v. Anonymous Student, 76 Misc 3d 1070 (Sup Ct, Saratoga County 2022), for example, the respondent (a 14-year-old student) made statements in a school setting that he wanted to shoot up the school and harm himself. He had engaged in recent violent acts, including starting fires, hitting another student, telling another student to kill himself, and vandalizing the bathroom. On the day he mentioned his plans for a shooting, respondent was further observed holding a red liquid drink like a gun, pointing it like a gun towards another student, and squirting it around his desk. He also reportedly squirted the red liquid in other areas of the school on that same day, as well as on the previous day, in a manner that simulated blood splatter from a gunshot wound, causing the principal to reasonably fear for the safety of the school.

Similarly, this Court granted the petition for an ERPO in Duguid v Kathan, 2022 NYLJ LEXIS 1312 (Sup Ct, Saratoga County 2022). There, the proof established that the respondent (an adult) had been violent and mentally unstable for quite some time. In a fit of rage, he had recently threatened to bash his family member's head in with a baseball bat. He aggressively advanced towards the victim with the metal bat, swung it at her, and hit the deck railing with it. In the victim's words, the respondent was "out of control" and caused her to be "in fear of [her] life and safety." Afterwards, the respondent acknowledged that he needed mental help and told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself." In addition, the respondent had two current orders of protection against him, with pending charges for other recent crimes. He had been involved in multiple instances over the years involving verbal arguments that easily escalated into physical violence. He had thrown items at people, hit them, threatened them, punched objects, and destroyed property. In one instance, he went so far as to threaten to kill everyone with a knife when they fell asleep. He had also commented that if he had a firearm, he would kill himself.

The petitioners in these other cases established sufficient grounds for the issuance of an ERPO — those respondents were unstable, irrational, and had engaged in dangerous conduct. Here, in contrast, there is no evidence that M.K. could not control himself. There is also no proof that M.K. engaged in any dangerous conduct. Rather, he merely expressed his thoughts to a crisis hotline. This does not justify issuing (or even filing) an ERPO against him. Again, an ERPO is not justified every time a minor contacts the crisis hotline for help.

Years ago, this Court expressed concerns regarding the use of ERPO proceedings against minors, especially as other statutes already impose significant restrictions on the legal ownership and possession of guns by minors (see Anonymous Sch., 76 Misc 3d at 1070). Despite these concerns, the statute continues to remain inadequate in many respects and continues to promote unnecessary filings such as the petition in this case (see Anonymous Sch. Dist. v. Anonymous, 2026 NY Misc LEXIS 10087, 2026 NY Slip Op 51155[U] [Sup Ct, Saratoga County 2026] [discussing the inadequacies of the statute and the potential impact on the mental health of minors from unnecessary ERPO filings]).

Accordingly, the petition is DENIED.

This shall constitute the Decision & Order of the Court. The Court is hereby arranging for filing and entry by the County Clerk. The Court further directs the petitioner to mail a copy of this Decision & Order to the respondent.

Dated: October 9, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

So-Ordered.

FOOTNOTES

1.   The Court did not hold M.K. (a minor) in default, as his representative did not appear in this proceeding and the Court did not appoint a guardian ad litem (see CPLR 1203). Rather, the Court proceeded to hear the petitioner's evidence, while intending to conduct further proceedings to allow M.K. the right to oppose the petition (through his parents or a GAL) if the petitioner's evidence was persuasive enough to justify the issuance of an ERPO.

2.   This one-year period may be extended for an additional period upon application (see CPLR 6345).

3.   The Court has considered the petitioner's evidence that M.K.'s mother reportedly told Trooper R. that M.K. had a history of mental health issues and that he had been taking new medication that appeared to be making his thoughts worse. However, these statements alone are too vague and generalized to constitute clear and convincing evidence required to issue an ERPO. Again, there is no evidence that M.K.'s mental health or new medication has caused him to engage in any other dangerous behavior aside from this one threat.

Richard A. Kupferman, J.