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Know the Laws: New York

UPDATED July 7, 2014

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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.

Basic info and definitions

back to topWhat is the difference between federal and state gun laws?

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.

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back to topWhat is a felony?

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)

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back to topWhat is the definition of a "domestic violence misdemeanor"?

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:

  • your current or former spouse;
  • your parent or guardian;
  • a person who you share a child with;
  • a person who you live with or have lived with as if s/he were a spouse, parent or guardian; or
  • a person who is like a spouse, parent or guardian.*
If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor. 

Note: The crime does not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.**  The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a "domestic violence misdemeanor."  For example: If Bob is convicted of a misdemeanor assault against his wife, it is illegal for him to buy a have a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

For more information, or if you are still confused, you might want to contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2.

* 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)

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back to topI am a victim of domestic violence and the abuser has a gun. Is that legal?

It depends.  Under NY state law, a person can only get a gun license or renew an existing gun license if s/he:

  1. is over age 21 (except for someone who was honorably discharged from the United States army, navy, marine corps, air force or coast guard, or the national guard of the state of New York - in that case, s/he can be under 21);
  2. is of "good moral character;"
  3. has not been convicted anywhere of a felony or a serious offense;
  4. is not a fugitive from justice;
  5. is not an unlawful drug user or addicted to any controlled substance;
  6. is not an undocumented immigrant (or has not renounced his or her U.S. citizenship);
  7. has not been discharged from the Armed Forces under dishonorable conditions; 
  8. has not been involuntarily committed to a mental health facility by a judge;
  9. has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
  10. has successfully completed a firearms safety course and test (in counties where this is required and where applicable); and
  11. has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.*

* NY Penal Law § 400.00(1)

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Guns and Orders of Protection

back to topI have a temporary civil order of protection against the abuser. Can his/her guns be taken away?

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 judge finds that there is a "substantial risk" that the abuser may use or threaten to use a gun against you or anyone else on your order of protection (such as your children);
  • the abuser has a prior conviction of a violent felony offense;  
  • the abuser has been convicted in the past of stalking; or
  • a judge found that the abuser "willfully" (purposefully) violated an order of protection in the past and, in committing such violation, the abuser caused you serious physical injury; or used or threatened to use a deadly weapon or dangerous instrument; or his/her behavior qualified as a violent felony offense.* 
The order of protection must say that the abuser has to surrender his/her guns / license (usually a box is checked on page 2) for it to be illegal under NY 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)



 

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back to topI have a final civil order of protection against the abuser. Can his/her guns be taken away?

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:

  1. there is a "substantial risk" that the abuser may use or threaten to use a gun against you or anyone else on your order of protection (such as your children); or
  2. the judge believes that the conduct (acts) which resulted in your getting the order of protection was based upon the abuser:
The order of protection must say that the abuser has to surrender his guns/ license (usually a box is checked on page 2) for it to be illegal under NY 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.

* NY Family Court Act §842-a(2)(a),(b)

 

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back to topThe abuser did not show up for the order of protection hearing. Can his/her guns still be taken away?

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)

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back to topIs there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?

Here are some suggestions of what you can do:

  • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s).
  • Ask the judge to check the box on the order of protection form that says the abuser (respondent) must surrender his/her guns and the box that says the respondent's firearm license is suspended or revoked.  If the judge agrees to do so, look to make sure that the box is checked on your order before leaving the courthouse.

If the judge takes away the guns, you may also want to ask the judge to:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser's house and get them. 
  • Explain what will happen to the abuser's guns (where they will be held).
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
  • Order that the police notify you when the guns are returned to the abuser.

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back to topIf the judge orders the abuser's guns to be taken away in my order of protection, how will they be taken away?

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)

 

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Guns and Criminal Convictions

back to topIf the abuser has been convicted of a crime, can s/he legally keep or buy a gun?

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)

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back to topHow can I find out if the abuser has been convicted of a crime?

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?

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The Abuser Isn't Supposed to Have a Gun...Now What?

back to topWho do I notify if I think the abuser should not have a gun?

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.

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back to topWill the abuser go to jail for having a gun when s/he isn't supposed to?

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)
** See, for example, United States v. Denis, 297 F.3d. 25 (1st Cir. 2002); 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).

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back to topWhat will happen if the abuser tries to buy a gun when s/he isn't supposed to?

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.

 

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More Information and Where to Get Help

back to topI do not have an order of protection against the abuser, and s/he has not been convicted of a crime. Can s/he have a gun?

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:

  1. over age 21 (except for someone who was honorably discharged from the United States army, navy, marine corps, air force or coast guard, or the national guard of the state of New York - in that case, s/he can be under 21);
  2. is of "good moral character;"
  3. is not a fugitive from justice;
  4. is not an unlawful drug user or addicted to any controlled substance;
  5. is not an undocumented immigrant (or has not renounced his or her U.S. citizenship);
  6. has not been discharged from the Armed Forces under dishonorable conditions; 
  7. has not been involuntarily committed to a mental health facility by a judge;
  8. has not had his/her gun license revoked or who is not under a suspension or ineligibility order (such as those that can be issued as part of a an order of protection proceeding);
  9. has successfully completed a firearms safety course and test (in counties where this is required and where applicable); and
  10. has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.*
Even if the abuser may legally be able to possess a gun, you can still make a plan for your safety.  See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety.  See our NY State and Local Programs page to find a local domestic violence organization near you. 

* NY Penal Law § 400.00(1)

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back to topI've read through all of this information, and I am still confused. What can I do?

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.

  • You can write to our Email Hotline;
  • You can contact a local domestic violence organization in your area (see our NY State and Local Programs page);
  • You can also contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you at 1-800-903-0111 x 2.

 


 

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