Know the Laws: New York
UPDATED April 4, 2016
Below is information about state gun laws in New York. A restraining order or criminal conviction may make it illegal for an abuser to have a gun. However, in addition to these state-specific laws, there are also federal gun laws that could apply. To fully understand all of the legal protections available, it is important that you also read the Federal Gun Laws pages.
WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate in your community for more information on gun laws in your area. Go to the NY Where to Find Help page to find domestic violence organizations and legal help in your area.
In these gun laws pages, we refer to both "federal gun laws" and "state gun laws." The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.
One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself. Throughout this section, we will be referring mostly to state laws. Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well. You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.
If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws. Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws. If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor). For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.
Throughout these gun law pages, we will refer to laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. It is defined under NY state law as a crime that is punishable by a prison sentence of more than one year.* However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the courthouse to search the conviction records.
* NY Penal Law §10.00(5)
Throughout this section, we will refer to the fact that it is illegal to carry a gun if a person has been convicted of a "domestic violence misdemeanor." Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:
Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.* A misdemeanor may have different definitions in each state but basically, it is a lesser crime than a felony. If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her.
Step 2: The next step is that you need to figure out if the crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.* Again, if you are unsure, you might want to call the prosecutor who handled the case.
Step 3: The abuser must be either:
* 18 USC 921(a)(33)(A); see Buster v. United States, 447 F.3d 1130 (8th cir 2006) for discussion of defining "as a spouse."
** See, for example, United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999)
It depends. Under NY state law, a person can only get a gun license or renew an existing gun license if s/he:
* NY Penal Law § 400.00(1)