Know the Laws: New York
UPDATED March 11, 2015
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 differences between the two has to do with who makes the law, who arrests/prosecutes someone who violates the law, and what the penalty is for breaking the law.
The 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.
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)
Yes. With a temporary order of protection, there are certain cases where the judge is supposed to order that the abuser's guns are taken away and that his/her gun license is suspended.
The judge should take away the abuser's guns and suspend his/her gun license if any of the following exist:
With a final order of protection, there are certain cases where the judge is supposed to take away the abuser's guns and revoke his/her gun license according to NY state law (explained below). However, there are also reasons under federal law that it can be illegal for the respondent in an order of protection case to have a gun. Please read I have a final order of protection against the abuser. Can his/her gun be taken away?
Under NY state law, the judge is supposed to take away the abuser's guns and revoke his/her gun license if the judge determines that either of the following are true:
Maybe. The abuser does not have to come to the hearing in order for the law to apply to him/her, but s/he does have to be given notice of the hearing and an opportunity to attend.*
If no hearing is scheduled, and/or no notice is given to the abuser about the court hearing, then the federal firearm law might not apply to your abuser.**
* 18 USC §922(g)(8); See, for example, United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002)
** See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)
Here are some suggestions of what you can do:
If the judge takes away the guns, you may also want to ask the judge to:
If the abuser's guns are taken away by the judge when you get an order of protection, the judge is supposed to write on the order the date, time, and place where the abuser is supposed to surrender (turn in) his/her guns. If possible, the judge is also supposed to describe the guns to be turned in. The suspension of the abuser's gun license will be in effect for as long as the order of protection lasts.*
The abuser has the option of either giving the gun(s) to a law enforcement agency for the period of time that you have the order of protection or selling them to a licensed firearms dealer.**
* NY Family Court Act 842-a(4),(5)(a)
** NY Penal Law § 400.05(6)
NY state law says that a person can NEVER have a "rifle or shotgun" if s/he has been convicted of a felony or serious offense.* Also, a person cannot have any "firearm" outside of his/her home or place of business if s/he has been convicted of a felony or a class A misdemeanor within the past five years.**
* NY Penal Law § 265.01(4)
** NY Penal Law § 265.02(5)(ii)
Misdemeanor and felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.
Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.
To read more about the NICS, please see the question What will happen if the abuser tries to buy a gun when s/he isn't supposed to?
If you think the abuser is violating one of the firearm laws, you can call your 911, or your local police or sheriff department, the State Police, or the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have an order of protection against the abuser, or the abuser has been convicted of a crime and s/he has a gun.
You can find contact information for sheriff departments in your area on our NY Sheriff Departments page.
There are ATF field offices located throughout NY State. To find out which one covers your county, you can look at the ATF website or to report illegal firearm activity, call 1-800-ATF-GUNS (1-800-283-4867).
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our NY State and Local Programs page.
NY state law says that any violation of the NY laws regarding gun licenses is a Class A misdemeanor (the highest level of misdemeanor) that can be punished by a fine of up to $1,000, jail time for up to one year, or both.*
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested (and convicted) for violating the law. If the abuser has a gun or buys a gun in violation of the law, the abuser can be arrested and convicted, whether or not the abuser knows s/he was in violation of the law. "Ignorance of the law" is no excuse or defense.*** NY Penal Law §§ 400.00(15), 80.05(1), 70.15(1)
Before legally buying a gun, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). If the abuser has an order of protection against him, or has been convicted of a felony or domestic violence misdemeanor, those records should be in the NICS, which should prevent the abuser from buying a gun. However, not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system.
If the abuser is able to purchase a gun and you believe that he should not have been able to get one due to your order of protection or due to his/her criminal history, you can alert the police, and ask that his/her gun be taken away. Generally, it is not a good idea to assume that because your abuser was able to buy a gun, it is legal for him to have one. The criminal background check system is not foolproof.
For more information or to discuss the specific facts of your case, you can contact a local domestic violence organization in your area. Go to our NY State and Local Programs page to find an organization near you.
In New York, there can be other reasons that make gun possession illegal aside from being the respondent on an order of protection and being a convicted criminal, such as the following. A person cannot have a gun license unless s/he is:
* NY Penal Law § 400.00(1)
Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.