Anonymous Sch. v Anonymous Student

[*1] Anonymous Sch. v Anonymous Student 2022 NY Slip Op 22292 Decided on July 21, 2022 Supreme Court, Saratoga County Kupferman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 21, 2022
Supreme Court, Saratoga County

Anonymous School, Petitioner,

against

Anonymous Student, Respondent.
(And a Related Proceeding)



Index No. EF20221330


Daniel S. L. Rubin, Esq.
Girvin & Ferlazzo, P.C.
20 Corporate Woods Blvd.
Albany, New York 12211
Attorney for Petitioner, Anonymous School

Tony Izzo, Esq.
Attorney for Petitioner, Anonymous Police Officer

Andrew Proler, Esq.
Saratoga County Attorney's Office
40 McMaster Street
Ballston Spa, New York
Attorney for Non-Party, Saratoga County Richard A. Kupferman, J.

Before the Court are two related petitions seeking an extreme risk protection order ("ERPO"), pursuant to CPLR Article 63-A, against Respondent, a student (14 years old) at a School. Petitioners contend that Respondent is likely to engage in conduct that would result in serious harm to himself and others. Petitioners each seek an ERPO to prohibit Respondent from purchasing or possessing a gun for one year.

Proceeding No. 1

The first petition (Index No. EF20221330) was filed by the School on June 14, 2022 ("Proceeding No. 1"). The petition includes supporting affidavits from the principal (Dr. S.) and [*2]a social worker (P.K.). The principal asserts that on June 14, 2022, Respondent stated to the class generally that "when [he] graduates, [he] is going to shoot up the school" and that "[he] is going to shoot [him]self in the head at graduation." In addition, on that same morning, Respondent (according to the principal's affidavit) took a red liquid drink mix out of his pocket and made a gun gesture with his hand at another student while in art class. Respondent (according to the affidavit) squeezed the liquid drink mix out of the container to cause the resemblance of blood splatter. The day prior, on June 13, 2022, Respondent also allegedly sprayed a red liquid drink mix inside the school bathroom, resulting in a blood spatter like effect on the walls.

The principal characterizes Respondent as having a long history of disciplinary issues and violence. He asserts that on June 1, 2022, Respondent hit another student with a clipboard and told another student to "kill yourself"; on June 6, 2022, Respondent allegedly vandalized the bathroom. Photographs attached to the principal's affidavit depict paper in a bathroom sink soaking in water, damage to a paper towel dispenser, and a paper towel roll soaking in the toilet. Additional photographs depict a red liquid (blood like) splatter in multiple locations at the School. An attached report further outlines Respondent's lengthy disciplinary record for the school year.

The principal further asserts that Respondent twice set fires intentionally inside residences, once in his grandmother's home and another time at his mother's; that he has issues related to and requires medication for ADHD, depression, mood and sleep; and that his household has domestic violence issues, excessive alcohol use, and a history of police involvement.

In the accompanying affidavit, the social worker asserts that she interviewed Respondent about the statements he allegedly made on June 14, 2022. She avers that Respondent "acknowledged to [her] that he made those statements further outlined in [the principal's] Affidavit." When the social worker asked why he wanted to shoot himself in the head after graduation, Respondent allegedly replied "to make everyone happy." Respondent allegedly showed no emotion and was eerily calm during the questioning. Respondent however was taken into custody by the police department before the social worker could finish discussing the incident with him.

The social worker characterized Respondent as being extremely passive aggressive and very impulsive. She further asserts that she learned about Respondent setting the two fires in residences from the Respondent's mother. She fears what would happen if Respondent gained possession of a firearm. She further avers that she believes that Respondent represents a danger to himself and others, is at significant risk of engaging in conduct that could harm himself or others, and that he should not be permitted to use or possess firearms or be in a household where he has access to them.

Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief. As a result, on June 14, 2022, the Court issued a temporary extreme risk protection order, ex parte (see CPLR 6342). The Court further scheduled a hearing for June 21, 2022 (see CPLR 6343) and directed service on Respondent and his parents (see CPLR 309[a]; 1201).

Proceeding No. 2

The following day, on June 15, 2022, the Court received a similar petition commenced by a city police officer against Respondent (Index No. 20221338), along with sworn statements obtained by the police from two teacher's assistants, an art teacher, and two police officers ("Proceeding No. 2").

One of the teacher's assistants (G.L.) stated to the police that she observed Respondent on June 14, 2022 around 8:20 a.m. in the art classroom with a "Mio fruit punch". Respondent was pointing it like a gun towards another student. Respondent then started squirting it towards the other student, stating something to the effect of it being blood. She took away the drink and threw it in the trash. Respondent then stated, "When I graduate I'm going to shoot up the school." Respondent then proceeded to state, "I'm going to shoot myself in the head at graduation." Respondent took out another Mio fruit punch and was taken out of the classroom by someone else. When she left the classroom, she observed red fruit punch all down the walls in the hallway.

The other teacher's assistant (B.T.) asserts in his sworn statement to the police that he heard Respondent say in the art classroom that "After I graduate I will shoot up the school and that is not a threat." The teacher's assistant asserts that he also observed red fruit punch on the walls. The teacher's assistant later walked Respondent to a place known as the skills room to address his behavior. He avers that there was a splatter on the walls in the skills room and Respondent stated, "That looks like blood."

In another statement, the art teacher (J.V.) informed the police that while working as an art teacher he heard Respondent make some type of comment about a gun. He heard an additional comment about a shooting. He further observed Respondent with a Mio container in his hoodie and one in his hand. Respondent was sent to the skills room. The art teacher observed red fluid on Respondent's desk and saw an employee cleaning red fluid off the walls in the hallway outside the art classroom after Respondent left the art classroom.

The two officers (Officers K.V. and L.M.) reported that they were dispatched to the School and that they interviewed School employees about the incident on June 14, 2022. They brought Respondent back to headquarters to complete a delinquency referral to charge him with Penal Law § 490.20(1), making a terroristic threat. Respondent was eventually turned over to his grandmother, who reportedly has shared custody of Respondent.

Based on the second petition and its supporting papers, on June 15, 2022, the Court issued a second temporary extreme risk protection order. The Court further scheduled a hearing for June 21, 2022, the same day and time as the hearing scheduled for Proceeding No. 1. The Court directed personal service on Respondent, his parents, his grandmother, and his uncle.

The Hearing

At the hearing, Petitioners appeared through their respective counsel in person. In addition, Andy Proler, Esq., appeared in person on behalf of the Saratoga County Attorney's Office. Respondent appeared virtually with his parents and grandmother by telephone by way of Microsoft Teams (see CPLR 1201). The Court provided Respondent and his family with an opportunity to adjourn the proceedings, however, they elected to proceed with the hearing. The Court then proceeded to conduct a joint trial and hear the evidence as if the cases had been [*3]joined for trial, without any objection from any of the parties.[FN1]

Summary of the Testimony

The School presented its evidence first. It called three witnesses, namely, the principal, a teacher's assistant (G.L.), and the social worker, who each testified in person. The teacher's assistant testified that on June 14, 2022, she heard Respondent say that after he graduates he will shoot up the school and that he will shoot himself in the head at graduation. On that day, she also observed Respondent with a Mio fruit punch. She observed him put his hands and fingers around the drink, hold it like a gun, and then aim it at another student. The color of the liquid from the drink was red. She heard Respondent make a comment about it resembling blood. She further testified that Respondent was generally quiet in class. On cross examination by Respondent's mother, the witness admitted that she was not aware if Respondent was upset at the time he made the statements.

The social worker testified that she met with Respondent after he was sent to her for making the statements and spraying the red liquid. At first, Respondent did not want to talk. Respondent then told her that he did not want to go to school that day. She testified that Respondent denied saying that he wanted to shoot others but that he admitted that he said that he wanted to hurt himself. When she asked him "why," Respondent replied, "to make everyone happy."

The social worker testified that she learned of two incidents in which Respondent allegedly set fires in residences located off school property. One of the two incidents allegedly occurred within three months prior to the hearing. She testified that Respondent acknowledged that he had set fire to his blanket in his bedroom. She also testified that Respondent's father reportedly has problems related to alcohol. She believes Respondent is a safety risk. She characterized Respondent as a quiet, angry boy who hates school, does not care about a lot of things, and is impulsive. He also has attention deficient disorder, depression, and oppositional defiant disorder.

When the Court asked the social worker why she did not refer Respondent for a mental health evaluation, she testified that he did not own a gun and that he denied saying that he wanted to shoot others. She further testified that Respondent indicated that he did not have plans to hurt himself or others in the near future, and that he was referring to his high school graduation. On cross examination by Respondent's mother, the social worker agreed that the fires were not set at School.

As its third and final witness, the School called the principal to the stand. He testified about the School's behavior management system and Respondent's disciplinary history. Among other things, he testified about Respondent vandalizing the school bathroom and spaying red [*4]liquid on the walls and a toilet in the bathroom. He further testified that on June 14, 2022, Respondent again sprayed the red liquid at his desk and in the hallway.

The Court received into evidence the same photos attached to the principal's affidavit, which depict the vandalism and red liquid splatter. The school principal testified that he believes that Respondent poses a significant risk of harm to the School and that Respondent internally holds things in and lets his emotions build up.

Respondent's grandmother cross-examined the principal. He clarified that the blood splatter incidents occurred on two different days rather than the same day. He further admitted that Respondent did not make the statements directly to him.

After the School rested its case, the city police officer's attorney elected not to proceed with any witnesses given the testimony of the School's witnesses. Respondent's grandmother then testified virtually, by telephone by way of Microsoft Teams, in opposition to the petitions. She testified that Respondent lacks access to a gun and that she would not let him have access to a gun. She testified that Respondent was not a danger and that his prior medication made him angry, but now he has changed his medication and is more relaxed. She also testified that she does not believe that Respondent wants to hurt himself. Respondent and his family did not call any other witnesses or present any other evidence in opposition to the petitions.

Analysis

CPLR Article 63-A was enacted in 2019. The statute (also known as the "red flag" law) sets forth the basic procedure for school administrators and police officers (among others) to request a court order to temporarily keep guns away from people who are likely to use them to hurt themselves or others. The statute is intended to help prevent and reduce the number of mass shootings, suicides, and other acts of gun violence.

Application of the Red Flag Law to Minors Generally

As discussed below, the statute contains enough guidance for the Court to determine whether an ERPO should be issued in a case involving a minor respondent such as this one. However, the red flag law appears to have been drafted with adult respondents in mind rather than tailored to address the special circumstances for troublesome minors.

The need for more specific guidance on this issue from the Legislature is highlighted by the blanket statutory directive that police officers and district attorneys must file an ERPO application when probable cause exists that an individual is likely to engage in conduct that would result in serious harm (CPLR 6341). This mandate requires the initiation and prosecution of cases regardless of the respondent's age. Such a directive fails to consider that the individual may already be prohibited under the law from purchasing or possessing a gun based on his or her age.

Indeed, even before the red flag law was enacted, prohibitions already existed on the purchase and possession of guns by a minor under 16 years old (see Penal Law § 265.05 [prohibiting minors under 16 years old from possessing a gun]; Penal Law 265.10[5] [prohibiting others from selling or giving guns to anyone under 16 years old]; see also Matter of Thomas R.R., 64 NY2d 1062, 1063-1064 [1985]). These provisions remain in effect and a court order is therefore unnecessary to prohibit a minor under 16 years old from legally possessing or purchasing a gun.

Further, there are exceptions that permit a minor under 16 years old to legally possess a gun. However, they are narrow. Penal Law § 265.05, for example, requires a minor to have a hunting license or permit and follow the Environmental Conservation Law, which currently limits hunting to minors 12 years and older and requires adult supervision (see Penal Law § 265.05; ECL 11-0701 [1]; 11-0929; 11-0931; see also Penal Law §265.20[a][7] [shooting range exemption]).

The existing law also already imposes the same gun storage requirements on people living with minors under 16 years old as the storage requirements for people living with a person who is the subject of an ERPO (see Penal Law § 265.45 [safe gun storage requirements]; see also CPLR 6343 [5][b] [requiring the Court to direct the return of guns to their lawful owner (including those residing with a person subject to an ERPO) where there is no legal impediment to the person's possession of such]). In addition, given the limited duration of an ERPO (one year, discussed below), a court order issued under the current red flag law may very well expire by the time a minor reaches the legal age to possess a gun.

Despite these significant restrictions on a minor's access to guns, the red flag law does not reference any of the restrictions already in place. Nor does the red flag law attempt to expand on the existing restrictions under the law to tailor a more simplified procedure for minors under 16 years old. Until such time as the Legislature addresses this issue, the courts will continue to have to conduct a full hearing and expend judicial resources in red flag cases involving minors who are already legally prohibited from having guns.

Setting aside the usefulness of the proceeding for minors under 16 years old, a more troublesome issue concerns the red flag law's effectiveness in limiting a dangerous minor's access to guns during the initial stage of the proceedings. As explained above, such minors are not legally permitted to possess a gun in the first place. While the law should obviously seek to remove any illegal guns possessed by a dangerous minor, it should also aim to limit a dangerous minor's access to guns. Notwithstanding, the statute for the search/inquiry stage appears to focus solely on preventing the minor's "possession" of guns rather than his or her "access" to guns (see CPLR 6342[8] [authorizing the court to "direct a police officer to search for firearms, rifles and shotguns in the respondent's possession ." (emphasis added)]; CPLR 6342[4][e] [requiring a temporary ERPO (or TERPO) to include "a form to be completed and executed by the respondent which elicits a list of all firearms, rifles and shotguns possessed by the respondent and the particular location of each firearm, rifle or shotgun listed" (emphasis added)]).[FN2]

Notably absent from this part of the red flag law is express authorization for a court to direct a search/inquiry regarding the minor's access to guns and in particular the possession of guns by the minor's parents, legal guardian, and others living with the minor. Nor does the statute expressly authorize a court to direct law enforcement to conduct a search/inquiry into whether any guns possessed by others living with the minor respondent are lawfully secured, as required by law. The red flag law also does not expressly require a respondent minor to list all known weapons owned by those with whom he or she resides so that law enforcement may confirm that they are being stored properly around the respondent minor.

Apart from the search/inquiry permitted, the law seems to expressly permit parents and [*5]guardians living with a minor to retain their weapons regardless of the adjudicated dangerousness of the minor, provided that they are safely stored (see Penal Law § 265.45; see also CPLR 6343 [5][b]). This would imply that law enforcement may not seize guns based solely on the dangerousness of the minor, provided that such are stored safely in accordance with the law. Nevertheless, the statute is silent and lacks clarity on this issue.

Application of the Red Flag Law to Respondent Specifically

Despite its lack of specifically tailored provisions applicable to minors, however, the statute contains enough guidance to determine this case. To obtain a final ERPO, the petitioner has "the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others" (CPLR 6343[2]). There must be either, "1. substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], 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; or(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor" (CPLR 6342[2]).

Further, if the petitioner satisfies his or her burden, the Court may issue a final ERPO to prohibit the respondent from purchasing, possessing, or attempting to purchase or possess a firearm, rifle, or shotgun for a period of up to one year, which may be extended for an additional period of time upon application (see CPLR 6345).[FN3]

Here, several red flags exist that are extremely alarming. The teacher's assistant, for [*6]example, testified that she overheard Respondent say that he wanted to shoot up the school and that he wanted to shoot himself at graduation. Further, while Respondent denied that he said that he wanted to shoot up the school, Respondent has not denied that he said that he wanted to kill himself using a gun. In fact, the social worker testified that Respondent admitted this to her.

Equally alarming is Respondent's disturbing belief that killing himself would make everyone happy. This demonstrates that he has an extremely distorted perspective on reality. When combined with the additional testimony that Respondent suffers from depression and other mood disorders, the Court is extremely fearful of what may occur if Respondent were permitted access to a weapon.

In addition, the testimony also reveals that Respondent has engaged in violent acts recently in the past, including destroying school property and harassing other students. He reportedly started two fires inside, one about three months prior to the hearing. Within just one to two weeks prior to saying that he wanted to kill himself, Respondent reportedly hit another student, told another student to kill himself, and vandalized the bathroom. On the day he mentioned his plans for a shooting, Respondent was 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.

While the Court truly wants to believe Respondent's grandmother that Respondent is a good kid, the Court cannot ignore Respondent's recent obsession with death, killing, and blood, which is extremely disturbing. His conduct has not only been reckless, but potentially criminal as well (see Penal Law § 490.20 [making a terroristic threat]; see also Penal Law § 240.78 [making a threat of mass harm, effective June 6, 2022]). His conduct sadly demonstrates that he has formulated an intention to bring a gun onto School property and that he has created a disturbing fantasy about splattering blood onto the walls of his School. Such conduct, while hopefully just a temporary stage in his life, demonstrates extremely poor judgment and a lack of maturity.

Accordingly, the Court finds that clear and convincing evidence exists that Respondent is likely to engage in conduct that would result in serious harm to himself and others. The Court therefore grants the petitions.

Dated: July 21, 2022

____________________________________
at Ballston Spa, New York
HON. RICHARD A. KUPFERMAN
Acting Supreme Court Justice Footnotes

Footnote 1:Although the parties did not make a formal motion under CPLR 602, the parties nevertheless all appeared at the same day/time for a hearing and presented their proof as if the cases had been consolidated for purposes of trial. The Court therefore considers Proceeding Nos. 1 and 2 as having been consolidated for trial (see Matter of Rostkowski v Baginski, 96 AD3d 1066, 1066-1067 [2d Dept 2012]; Prutsman v Manchester, 79 AD2d 1078, 1078 [3d Dept 1981]; see also Matter of Amy M., 234 AD2d 854 [3d Dept 1996]).

Footnote 2:"Possess" is defined as "to have physical possession or otherwise to exercise dominion or control over tangible property" (Penal Law 10.00[8]; see CPLR 6340[4]).

Footnote 3:Notwithstanding, no finding or determination made during these proceedings "shall be interpreted as binding, or having collateral estoppel or similar effect, in any other action or proceeding, or with respect to any other determination or finding, in any court, forum or administrative proceeding" (CPLR § 6347).