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Know the Laws: New York

UPDATED April 4, 2008

Guns and Orders of Protection

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back to topI have a temporary order of protection against the abuser. Can his gun be taken away?

Under NY state law, with a temporary order of protection, there are certain cases where the judge has the option of taking away the abuser's guns/ gun license and there are certain cases where the judge is supposed to take away his guns/ gun license. 

The judge has the option to order that the abuser's guns/ gun license be taken away if 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 judge should take away the abuser's guns/ gun license if:

  • the abuser has a prior conviction of a violent felony offense  or
  • 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 behavior qualified as a violent felony offense.* 
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. If the judge does not mention it in court, be sure to speak up and ask the judge to do this.  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 guns and gun license taken away. 

* NY Family Court Act § 842-a(1)(b) & (2)(b)
** NY Family Court Act § 842-a(1)(a)

 

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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.*
* Americans for Gun Safety; "Domestic Violence and Guns: A Guide to Laws that can Remove Guns from a Domestic Abuser." Note: This organization is now called Third Way, and no longer publishes this article on their site.

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