ERPO issued against former prison guard connected to inmate death

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New York State Police have obtained an extreme risk protection order (ERPO) to keep firearms out of the hands of Mathew J. Galliher, a former prison guard acquitted of criminal charges related to the death of an inmate.

An ERPO is a court order prohibiting individuals at high risk of harming themselves or others from purchasing or possessing firearms.

In December 2024, Galliher and several other correction officers participated in the gang assault of inmate Robert Brooks, who died as a result, according to court papers.

Galliher and the other correction officers did not activate their body-worn cameras during the assault, but investigators were able to retrieve video from the cameras without audio anyway.

State Police sought the ERPO against Galliher because of his connection to the assault on Brooks.

State Supreme Court Justice Peter M. Rayhill held a hearing where investigators testified and the video footage was entered. Galliher invoked his Fifth Amendment right against self-incrimination throughout questioning.

In February 2025, after the hearing, Rayhill denied the final ERPO and issued a written decision and order in which he concluded that the evidence did not demonstrate that Galliher was likely to engage in conduct that would result in serious harm to himself or others.

State officials appealed to the Appellate Division of state Supreme Court, Fourth Department, which unanimously reversed Rayhill’s decision and granted the petition.

Galliher was criminally charged for his role in Brooks’ death but was ultimately acquitted of all charges against him, the Fourth Department noted.

“Inasmuch as respondent was acquitted and is thus not prohibited as a result of that prosecution from possessing any firearms, rifles, or shotguns, this appeal is not moot,” the panel wrote.

“On the merits, we agree with petitioner that the court erred as a matter of law in refusing to issue a final ERPO,” the Fourth Department ruled.

The state had the burden of proving, by clear and convincing evidence, that Galliher is likely to engage in conduct that would result in serious harm to himself … or others, as defined in Mental Hygiene Law, according to the Fourth Department decision.

Likelihood to result in serious harm means “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,” the court wrote.

In determining whether the petitioner has met their burden, the judge may consider any evidence submitted by the petitioner or respondent, and the eight factors listed in Civil Practice Law & Rules, Section 6342 (2).

The first factor is a prior “threat or act of violence or use of physical force directed toward self, the petitioner, or another person,” the panel noted.

At the start of the hearing, Rayhill recited the appropriate standard set forth in CPLR 6343 (2) and Mental Hygiene Law … “and expressly concluded following the hearing that the evidence established that respondent participated with others in an act of violence against (an) … inmate in restraints that caused serious physical harm and, ultimately, death to that individual,” according to the decision.

“Nonetheless, the court held that respondent was not ‘likely’ to engage in conduct that would result in serious harm to himself or others, relying upon the Merriam-Webster Dictionary’s definition of ‘likely,’ rather than the statutory definition in Mental Hygiene Law,” the court wrote.

“That was error,” the Fourth Department ruled.

The state had the burden to establish, by clear and convincing evidence, that Galliher posed “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,” the court wrote.

“Petitioner met that burden by establishing that respondent actively participated in the assault of a restrained incarcerated individual by grabbing the victim by the chest and holding him down while other officers kicked the victim in the abdomen and groin,” the court wrote.

“Respondent adduced no evidence to the contrary at the hearing. To the extent that the court appears to have implicitly concluded that it is inappropriate to issue an ERPO based upon past acts of violence as opposed to threats of future violence, we note that CPLR article 63-A does not require either an explicit threat or expert testimony to predict a respondent’s future conduct,” the court wrote.

“We therefore reverse the order, reinstate the application, grant the application insofar as it seeks the issuance of a final ERPO, and remit the matter to Supreme Court for further proceedings pursuant to CPLR 6343 (3),” the court ruled.

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