BUFFALO, N.Y. — They're called Emergency Risk Protection Orders by the state court system and the spotlight has been focused on them with the Buffalo mass shooter cases and other mass shootings.
It is a version of the so-called Red Flag Law. But in this formal civil case court proceeding, state police investigators say they are not getting any legal representation. And they are concerned that could affect the process as a State Supreme Judge is being asked to decide if weapons should be removed from a person deemed dangerous by law enforcement.
Governor Kathy Hochul called for state police to process all such cases which come to them from petitioners like schools, police agencies, or prosecutors.
But now we are hearing from the New York State Police Investigators Association that their workload to handle such cases with all the paperwork and hours involved is overwhelming their ability to do so properly. Senior Investigator Timothy Dymond tells 2 On Your Side, "This far in 2022 - we've done four times as many as we did in the same time frame of 2021. So we have quadrupled the work."
Dymond says the workload for such cases can take days with paperwork, evidence and testimony collection, and actual court time. That is in addition to usual criminal investigations on crimes ranging from murder to robbery.
And when they do get to court, the outcome to remove those weapons can go the other way according to Dymond who heads up the union for state police investigators.
"We are seeing during these ERPO hearings the guns going back to the respondent after the hearing. And the judge sided with the respondent - not with the state. And I think a lot of that is to us representing the state. Like I said we have our very talented investigators and police officers. But it's a different job, a different skill set between being an investigator and an attorney."
Dymond emphasizes that "During this hearing, our members are representing the state's interest. While the respondent often times has a skilled defense attorney. Our people are fantastic -some of the best police officers in the country. But we're not attorneys. We're investigators, police officers, and troopers. So it's really not a fair playing field to have someone that's not an attorney going toe to toe with an attorney."
He adds, "Obviously we would appreciate the AG's office sending an attorney to represent our members on this. We just need someone to step up and represent the state's interest."
Dymond says a state judge did get involved.
"He wrote a formal letter written to the AG's office, to the Governor, and to the state police saying these investigators are appearing in court and they're not prepared to make these legal arguments that an attorney would be prepared to make. And the AG's office responded in writing - saying that they would not be representing us in these cases."
Governor Hochul did respond last week when asked about this. She told reporters she was not aware of the problem. But stressed that, "We’ve only had the executive order in place that directed State Police to affirmatively find cases and identify cases where the red flag law would come into play. Ninety percent of the temporary red flag law, the extreme protection orders, brought by State Police in that timeframe have been granted. So, ninety percent have been grated of the temporary orders of protection, so, but also, we’re making sure there is training. I wanted this to go into effect immediately, but there’s training that’s following. I just identified that there’s going to be an outreach to everyone in schools, a training program, our State Police are involved in this, as well as working out the issues related to representation in the courts. So, in one month, ninety percent of the temporary orders were granted. That’s a good record and we’re going to continue though, enhancing this, getting the education materials out there, and formalized training. That is just beginning."
A spokeswoman for State Attorney General Letitia James only said in response that, "We are working with the governor’s office on addressing this to ensure red flag laws are executed and firearms kept away from dangerous individuals."
Dymond told us later, "There is no amount of training you can provide to a state police investigator that is going to take the place of three years of law school and the years of experience that an attorney representing New York State would have. While we appreciate that the State has provided attorneys in a few cases since we brought this issue to light, we have members testifying in hearings across the state today and this week with no representation. We are gravely concerned for public safety that New York State continues to shirk its responsibility to the taxpayers. If you pass a law, you need to have a budget and a plan to support it after the press conference.”
He added, "It's nerve-wracking. Because God forbid they go out and they do something tragic. We didn't do everything we could to prevent that from happening."
We also checked in with Erie County District Attorney's Office. A spokeswoman issued this statement from District Attorney John Flynn.
"The Erie County DA’s Office will continue to be a resource for any police agency, family member, or school administrator seeking to file an Emergency Risk Protection Order. I remain committed to preventing violent crime and this civil proceeding allows a judge to temporarily remove an at-risk individual’s access to guns. When Red Flag Law legislation was enacted in August 2019, I sent a letter to notify every law enforcement agency and public school district in Erie County and to offer our assistance. I designated a senior prosecutor to provide legal counsel on Red Flag Law and to assist with filing temporary ERPO petitions to the Court. I encourage anyone who has direct knowledge that an individual poses a potential threat to themselves or others to contact my office for help,”
The DA's spokeswoman says so far they have not been asked to assist the State Police in such cases. They can assist but not technically serve as counsel because it is a civil court case. The DA's office can serve as a petitioner to request such an order in a case.