Know the Laws: New York
UPDATED April 4, 2008
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)