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)
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:
The order of protection must say that the abuser has to surrender his/her guns/license for it to be illegal under New York state law. If the judge does not mention it in court, be sure to speak up and ask the judge to do this if this is what you want. If the judge does not check the appropriate box, then you may have to wait until you are given a permanent order to get his/her guns and gun license taken away.
* NY Family Court Act § 842-a(1)(a),(b)
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 New York state law (explained below).
Under New York 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:
The order of protection must say that the abuser has to surrender his/her guns/license for it to be illegal under New York state law (although it could still be illegal under federal law even if not written as a term of your order). If the judge does not mention it in court and you want the guns to be removed, be sure to speak up and ask the judge to do this.
Federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a final protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun. Go to the Federal Gun Laws page to get more information.
* NY Family Court Act § 842-a(2)(a),(b)
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 state firearm laws, you can call your local police or sheriff department or the State Police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our NY Sheriff Departments page.
You can find ATF field offices in New York on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
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.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.*
* United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
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 purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from buying a gun. 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. Also, it is important to know that background checks are not required for private and online gun sales.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.
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.