What I Learned in Judge School

[Catskillkid]

As many of you know I was recently elected Town Justice for my Town. I'll be taking office on January 1, 2020 and one of the requirements before I take office is that I had to complete the "Taking the Bench" course (commonly known as "Judge School") prior to assuming office. Basically it was a crash course on law and the most common things you'll probably experience/encounter as a Town or Village Justice. It was a lot of stuff and rather overwhelming at times if you ask me, but I still passed with flying colors.

One of the things we discussed that I thought would be of interest to folks on this forum are the powers that judges (at least the powers of local judges) have in the removal of firearms.

Keep in mind, what I am about to relate are not Extreme Risk Protection Orders (commonly known as "Red Flag Orders/Laws"). We have those in NYS but, at least as it was explained to me, only Superior Court judges can issue those, which was surprising to me since when they passed all the news and politicans made it seem like someone at my position could issue a "Red Flag Order."

I can order the removal of firearms during the course of a regular Order of Protection. I must order them to be removed when:

• When a Temporary Order of Protection is issued under CPL Section 530.12(1) or CPL Section 530.13(1) AND the Court has "good cause to believe" that the defendant has a prior conviction for a violent felony offense; OR
• The defendant has previously disobeyed a prior Order of Protection and such as involved:

1. Infliction of physical injury
2. The use or threatened use of a deadly or dangerous instrument
3. Engaged in behavior constituting any violent felony; OR
4. Been previously convicted of Stalking in the 1st, 2nd, 3rd, or 4th degree

I can only suspend (suspension is "temporary" but that's a bit of a false term...more on that later) a firearms license. Revocation can only occur after a conviction. Suspension remains in effect for the duration of the Order of Protection (unless modified by the court).

Under CPL Section 530.14(1)(b) if the court finds a substantial risk that the defendant has threatened to use a firearm against a person protected by an Order of Protection, the court MUST (as in mandatory)

1. Suspend a firearms license
2. Direct ineligibility to receive a firearms lisense
3. Require the immediate surrender of firearms

"Substantial Risk" is determined by taking in the totality of the circumstances such as arrest records, criminal history, domestic incident report, and accusatory instruments.

I was told point blank that it is very much in our discretion to order the removal of firearms if we believe that the defendant would use them to harm a person protected by an order of protection.

Oh, and the best part is that while local judges like myself can order suspension of firearms licenses and order the removal of said firearms only Superior Court judges have the authority to issue a Return Order of Firearms for the defendant (CPL Section 530.14(5)(b).

That's the Cliff Notes version and I plan on trying to investigate this more to see what my true authority is in the matter. Folks involved in Law Enforcement please correct me if something is inaccurate but this is the information that was supplied to me by folks at the Office of Justice Court Support.

 

[Defilade]

Or you can dam well abide by your oath and ignore all that Unconstitutional B.S.

 

[spat]

As many of you know I was recently elected Town Justice for my Town. I'll be taking office on January 1, 2020 and one of the requirements before I take office is that I had to complete the "Taking the Bench" course (commonly known as "Judge School") prior to assuming office. Basically it was a crash course on law and the most common things you'll probably experience/encounter as a Town or Village Justice. It was a lot of stuff and rather overwhelming at times if you ask me, but I still passed with flying colors.

One of the things we discussed that I thought would be of interest to folks on this forum are the powers that judges (at least the powers of local judges) have in the removal of firearms.

Keep in mind, what I am about to relate are not Extreme Risk Protection Orders (commonly known as "Red Flag Orders/Laws"). We have those in NYS but, at least as it was explained to me, only Superior Court judges can issue those, which was surprising to me since when they passed all the news and politicans made it seem like someone at my position could issue a "Red Flag Order."

I can order the removal of firearms during the course of a regular Order of Protection. I must order them to be removed when:

• When a Temporary Order of Protection is issued under CPL Section 530.12(1) or CPL Section 530.13(1) AND the Court has "good cause to believe" that the defendant has a prior conviction for a violent felony offense; OR
• The defendant has previously disobeyed a prior Order of Protection and such as involved:

1. Infliction of physical injury
2. The use or threatened use of a deadly or dangerous instrument
3. Engaged in behavior constituting any violent felony; OR
4. Been previously convicted of Stalking in the 1st, 2nd, 3rd, or 4th degree

I can only suspend (suspension is "temporary" but that's a bit of a false term...more on that later) a firearms license. Revocation can only occur after a conviction. Suspension remains in effect for the duration of the Order of Protection (unless modified by the court).

Under CPL Section 530.14(1)(b) if the court finds a substantial risk that the defendant has threatened to use a firearm against a person protected by an Order of Protection, the court MUST (as in mandatory)

1. Suspend a firearms license
2. Direct ineligibility to receive a firearms lisense
3. Require the immediate surrender of firearms

"Substantial Risk" is determined by taking in the totality of the circumstances such as arrest records, criminal history, domestic incident report, and accusatory instruments.

I was told point blank that it is very much in our discretion to order the removal of firearms if we believe that the defendant would use them to harm a person protected by an order of protection.

Oh, and the best part is that while local judges like myself can order suspension of firearms licenses and order the removal of said firearms only Superior Court judges have the authority to issue a Return Order of Firearms for the defendant (CPL Section 530.14(5)(b).

That's the Cliff Notes version and I plan on trying to investigate this more to see what my true authority is in the matter. Folks involved in Law Enforcement please correct me if something is inaccurate but this is the information that was supplied to me by folks at the Office of Justice Court Support.

What are the consequences if you fail to do one of the "musts" ?

Saying you "must" do something, but then saying nothing happens if you don't do it, kinda invalidates the "must".

 

[E the massive]

What are the consequences if you fail to do one of the "musts" ?

Saying you "must" do something, but then saying nothing happens if you don't do it, kinda invalidates the "must".

They revoke his key to the Judges Lounge and massage bar.

 

[SomeSoldier]

Law is usually written in a way that say you can do this but not written as you have to. It's why cops have discretion for pretty much everything.

Kinda odd to hear a judge must do something.

 

[Catskillkid]

What are the consequences if you fail to do one of the "musts" ?

Saying you "must" do something, but then saying nothing happens if you don't do it, kinda invalidates the "must".

Good question. I didn't ask and they didn't say consequences for this particular action. Long story short, any judge's decision can be appealed (that's what Courts of Appeals are for).

On the last day of school they had a whole session on Judicial Ethics and there are boards out there than can discipline judges who do inappropriate things (use their position for financial gain for example) or continually and willfully violate the law. Consequences range from censure (slap on the wrist and don't do this again) to being removed from the bench.

I imagine that in this case if there was a clear substantial risk (husband points his gun at this wife and threatens to kill her for example) and I don't remove the firearms AND he does in fact wind up shooting her then I could likely get in trouble for that.

 

[Catskillkid]

They revoke his key to the Judges Lounge and massage bar.

It's Judge's Chambers. And there's no massage bar. Trust me I checked. My chambers are just an office I share with the clerk. Nothing fancy at all.

 

[Catskillkid]

Law is usually written in a while that say you can do this but not written as you have to. It's why cops have discretion for pretty much everything.

It's weird. There's a lot of things that I have discretion over and somethings I don't at all. In DWI, for example, I basically have very little discretion in those types of cases.

 

[GOYABEAN]

Congrats @Catskillkid stay honest and remember No One Is Above The Law

 

[spat]

Good question. I didn't ask and they didn't say consequences for this particular action. Long story short, any judge's decision can be appealed (that's what Courts of Appeals are for).

On the last day of school they had a whole session on Judicial Ethics and there are boards out there than can discipline judges who do inappropriate things (use their position for financial gain for example) or continually and willfully violate the law. Consequences range from censure (slap on the wrist and don't do this again) to being removed from the bench.

I imagine that in this case if there was a clear substantial risk (husband points his gun at this wife and threatens to kill her for example) and I don't remove the firearms AND he does in fact wind up shooting her then I could likely get in trouble for that.

Based on the judge Astacio debacle in Rochester, you don't have to worry about getting removed for anything short of committing a violent felony on national TV.

If something like what you describe happened, I certainly hope you have a stronger response available than "give me your guns, and please don't beat her to death before your court date"...

 

[Catskillkid]

Congrats @Catskillkid stay honest and remember No One Is Above The Law

Thanks Goyabean! And I absolutely will! I took an oath to uphold the Constitution of the United States and the State of New York. I take that very, very seriously.

 

[spat]

It's Judge's Chambers. And there's no massage bar. Trust me I checked. My chambers are just an office I share with the clerk. Nothing fancy at all.

No cigar bar in the back ?

Have you checked for secret doors ?

 

[Catskillkid]

No cigar bar in the back ?

Have you checked for secret doors ?

We have one of those doors that's like a half door. You can open the top so people can talk to you but the bottom stays shut so they can't come in (unless they hop it which isn't that hard to do). Does that count?

 

[tirwin1]

Oh, and the best part is that while local judges like myself can order suspension of firearms licenses and order the removal of said firearms only Superior Court judges have the authority to issue a Return Order of Firearms for the defendant (CPL Section 530.14(5)(b).

Now isn't that interesting. A built in process designed to make it easier to remove firearms than return them. I see no reason why you cannot issue a return order if you can order the removal.

 

[Acer-m14]

when are you signing the warrant to raid the Clinton home LOL .

I imagine that in this case if there was a clear substantial risk (husband points his gun at this wife and threatens to kill her for example) and I don't remove the firearms AND he does in fact wind up shooting her then I could likely get in trouble for that.

i would ask if she has a gun and if not give her one ..

also if he is that much risk .. just lock his ass up and loose the key and give her all the guns ..

 

[Curmudgeon]

If you do what's always been done, you'll get what's always been got.

Do you honor the constitution; or the state?

 

[Catskillkid]

So in reference to the "if he's that much of a risk of killing her why don't you just lock him up."

I can't.

Bail reform has prevented me from doing that in most cases unless it reaches the level of a felony.

 

[E the massive]

We have one of those doors that's like a half door. You can open the top so people can talk to you but the bottom stays shut so they can't come in (unless they hop it which isn't that hard to do). Does that count?

Why do you hate midgets?

 

[Catskillkid]

Now isn't that interesting. A built in process designed to make it easier to remove firearms than return them. I see no reason why you cannot issue a return order if you can order the removal.

My thoughts/feelings exactly. My opinion is that if I have the authority to remove firearms I should have the authority to give them back too. But this is New York State and that would be too fair/too logical.

 

[Catskillkid]

Why do you hate midgets?

I didn't build the door. Plus little people (midgets is very unwoke term) can be thrown if they need to come in.

 

[Bananabandit]

Calls himself a kid, expects respect as a hamlet judge.

Can you point to the spot on a map where the speed trap is?

 

[Acer-m14]

So in reference to the "if he's that much of a risk of killing her why don't you just lock him up."

I can't.

Bail reform has prevented me from doing that in most cases unless it reaches the level of a felony.

what about off to the R-wing ( psyc ward ) for mental evaluation .. .. ??


ps..
( the best ones are on a far away island)

 

[Catskillkid]

what about off to the R-wing ( psyc ward ) for mental evaluation .. .. ??


ps..
( the best ones are on a far away island)

In cases where someone is unable to understand why they are being arraigned because of apparent mental illness I can order them to be committed in order to be evaluated.

 

[Catskillkid]

Calls himself a kid, expects respect as a hamlet judge.

Can you point to the spot on a map where the speed trap is?

It's Town Justice. And the speed trap is next to our sole traffic light. It's not even a real traffic light either. Just a blinking one.

 

[spat]

So in reference to the "if he's that much of a risk of killing her why don't you just lock him up."

I can't.

Bail reform has prevented me from doing that in most cases unless it reaches the level of a felony.

This state is so fucked.

 

[Catskillkid]

This state is so fucked.

I would not disagree with that statement. Nor would plenty of others.

 

[Acer-m14]

i just think waving a gun and saying he is gunna kill her is "apparent mental illness" ..

 

[Pissed Off Patriot]

It's Judge's Chambers. And there's no massage bar. Trust me I checked. My chambers are just an office I share with the clerk. Nothing fancy at all.

Sounds like you need to move to Kentucky then...

Kentucky judge accused of frat-house antics, threesomes with staffers

The judge, Dawn Gentry, was hit with nine charges by the state related to her Animal House antics.

nypost.com

 

[Marine Cpl]

So in reference to the "if he's that much of a risk of killing her why don't you just lock him up."

I can't.

Bail reform has prevented me from doing that in most cases unless it reaches the level of a felony.

Don’t take this the wrong way, but in that case, the oath you took is worthless if you have to go after his guns rather than lock him up because your hands are tied.

The system will remain the way it is unless judges and cops just flat out refuse.

 

[HDMotorCop]

So it's no longer Catskillkid, but The Honorable Catskillkid, huh?

Congrats!