New York law does not explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.

Domestic Violence MisdemeanORS

Regardless of their relationship to the victim, New York prohibits all persons convicted of specific violent misdemeanors, defined as “serious offenses,” from obtaining a license to purchase or possess a firearm, and requires the revocation of their existing licenses, thereby prohibiting these persons from possessing these weapons.¹ These prohibitions also apply to individuals subject to an outstanding warrant of arrest for a serious offense.² The definition of “serious offenses” includes misdemeanor stalking, child endangerment, and sexual offense convictions.³ It also includes violent and threatening misdemeanors like assault, strangulation, menacing, trespass, and harassment, and attempts to commit the same, when the offender and victim are members of the same family or household.⁴

New York authorizes courts to prohibit a defendant from purchasing or possessing firearms, and to suspend any existing firearm licenses in a defendant’s name in cases where the defendant is charged with (but not yet convicted of) certain domestic violence misdemeanors. In addition, the court must suspend or revoke defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.⁵

Any court that is issuing a sentence for domestic violence or another violent crime may also issue an order of protection or temporary order of protection. If the court issues such an order, and the crime is a felony or “serious offense,” the court must revoke any firearm license possessed by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any firearms possessed or owned. In addition, the court must suspend or revoke defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.⁶

On November 1, 2020, the Safe Homes and Families Act will take effect. This law empowers law enforcement officers responding to a report of domestic violence to take temporary custody of any firearms in plain sight or discovered pursuant to a consensual or other lawful search, as well as any associated licenses to carry, possess, repair, or dispose of the firearms.⁷ The firearms are generally to be held for 48 hours unless an order of protection or extreme risk protection order is issued or there is a pending charge or conviction that would prohibit firearm possession.⁸

Reporting Domestic Violence Misdemeanors for Background Checks

Federal law prohibits possession of a firearm by a person convicted of a “misdemeanor crime of domestic violence.” In 2011, New York enacted a law establishing a procedure to be used in trials for certain violent misdemeanors to determine whether the crime qualifies as domestic violence under the federal definition of that term. More specifically, when a defendant has been charged with one of a list of crimes, prosecutors may serve a notice alleging that the defendant and the victim had the requisite domestic relationship.⁹ Upon conviction, the court must notify the defendant that he or she is entitled to a hearing on that allegation.¹⁰ At such a hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is related or situated to the victim in the manner alleged in the notice.¹¹ If the requisite domestic relationship is found, the clerk of the court must send a copy of the written determination in a report of the conviction to the Division of Criminal Justice Services, who then reports the determination to the FBI (which maintains the database used for firearm purchaser background checks).¹²

Domestic Violence Protective Orders

In certain circumstances, New York prohibits a person subject to a domestic violence protective order or an ex parte domestic violence protective order (the “respondent”) from having a firearms license, and requires the revocation of any existing firearms license in the name of the respondent.¹³ More specifically, when a domestic violence protective order is issued, the court must revoke a license, order the respondent ineligible for a license and order the immediate surrender of any firearms owned or possessed by respondent, if the court finds that the conduct leading to an order of protection involved:

• Infliction of physical injury
• The use or threatened use of a deadly weapon; or
• Behavior constituting a violent felony offense.¹⁴

When a temporary order of protection is issued to protect a victim during a pending criminal action, or in a family court proceeding prior to a final protective order, a court must suspend a firearm license, order the respondent ineligible for a license and order the immediate surrender of all firearms possessed or owned by the respondent, if the court has good cause to believe that the respondent:

• Has a prior conviction of a violent felony
• Has previously willfully failed to obey a prior order of protection, and the failure involved the infliction of physical injury, the use or threatened use of a deadly weapon, or behavior constituting any violent felony offense
• Has a prior conviction of stalking in the first, second, third or fourth degree.¹⁵

In addition, a court issuing a domestic violence protective order or a temporary order of protection or finding that a respondent has willfully failed to obey a domestic violence order of protection must revoke or suspend the respondent’s firearms license, order the respondent ineligible for a future license, and order the immediate surrender of all firearms owned or possessed by the respondent, if the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person(s) for whose protection the order was issued.¹⁶

When a respondent is found to have willfully failed to obey a domestic violence order of protection or temporary order of protection, the court must revoke any existing firearms license held by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any or all firearms owned or possessed by the respondent if the failure to obey involved:

• Serious physical injury
• Use or threatened use of deadly weapons
• Behavior constituting a violent felony offense
• Behavior constituting stalking in the first, second, third or fourth degrees.¹⁷

When a Family Court in New York issues an order of protection, temporary order of protection, or when such orders are violated, the court must make a determination regarding the suspension or revocation of a firearms license and the surrender of firearms, in accordance with the above principles.¹⁸

For laws governing the procedure for surrender of firearms by a person subject to a protective order, see Firearm Relinquishment in New York.

MEDIA REQUESTS

Our experts can speak to the full spectrum of gun violence prevention issues. Have a question? Email us at media@giffords.org.

Contact

1. N.Y. Penal Law §§ 400.00(1), 265.00(17).[↩]
2. N.Y. Penal Law §400.01.[↩]
3. N.Y. Penal Law § 265.00(17).[↩]
4. See N.Y. Penal Law § 265.00(17); N.Y. Crim. Proc. Law § 530.11 (defining “members of the same family or household”).[↩]
5. N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(b), (2)(b).[↩]
6. N.Y. Crim. Proc. Law §§ 530.14(1)(b), (2)(a); N.Y. Penal Law § 400.00(11).[↩]
7. N.Y. Crim. Proc. Law § 140.10(6)(a).[↩]
8. N.Y. Crim. Proc. Law § 140.10(6)(c).[↩]
9. N.Y. Crim. Proc. Law § 370.15(1).[↩]
10. N.Y. Crim. Proc. Law § 370.15(2).[↩]
11. N.Y. Crim. Proc. Law § 370.15(3).[↩]
12. N.Y. Crim. Proc. Law § 380.97[↩]
13. N.Y. Fam. Ct. Act § 842-a(1), (2), § 828(1)(a), (3); N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a), (2). See also N.Y. Penal Law § 400.00(1)(e), (11).[↩]
14. N.Y. Fam. Ct. Act § 842-a(2)(a), (3).[↩]
15. N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a); N.Y. Fam. Ct. Act § 842-a(1).[↩]
16. N.Y. Crim. Proc. Law § 530.14(1)(b), (2)(b), (3)(b); N.Y. Fam. Ct. Act § 842-a(1)(b), (2)(b), (3)(b).[↩]
17. N.Y. Crim. Proc. Law § 530.14(3)(a); N.Y. Fam. Ct. Act §§ 842-a(3)(a), 846-a.[↩]
18. N.Y. Fam. Ct. Act. § 446-a.[↩]