I have a temporary 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.1
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.
1 NY Family Court Act § 842-a(1)(a),(b)
I have a final 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 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:
- 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
- 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/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.
1 NY Family Court Act § 842-a(2)(a),(b)
The 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.1
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.2
1 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)
2 See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)
Is 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.
If 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.1
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.2
1 NY Family Court Act 842-a(4),(5)(a)
2 NY Penal Law § 400.05(6)