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)