STATE OF NEW YORK
________________________________________________________________________
11379
IN ASSEMBLY
October 19, 2018
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Mosley) --
read once and referred to the Committee on Codes
AN ACT to amend the civil practice law and rules and the penal law, in
relation to establishing extreme risk protection orders as court-is-
sued orders of protection prohibiting a person from purchasing,
possessing or attempting to purchase or possess a firearm, rifle or
shotgun
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. The civil practice law and rules is amended by adding a new
2 article 63-A to read as follows:
3 ARTICLE 63-A
4 EXTREME RISK PROTECTION ORDERS
5 Section 6340. Definitions.
6 6341. Application for an extreme risk protection order.
7 6342. Issuance of a temporary extreme risk protection order.
8 6343. Issuance of a final extreme risk protection order.
9 6344. Surrender and removal of firearms, rifles and shotguns
10 pursuant to an extreme risk protection order.
11 6345. Request for renewal of an extreme risk protection order.
12 6346. Expiration of an extreme risk protection order.
13 6347. Effect of findings and determinations in subsequent
14 proceedings.
15 § 6340. Definitions. For the purposes of this article:
16 1. "Extreme risk protection order" means a court-issued order of
17 protection prohibiting a person from purchasing, possessing or attempt-
18 ing to purchase or possess a firearm, rifle or shotgun.
19 2. "Petitioner" means: (a) a police officer, as defined in section
20 1.20 of the criminal procedure law, or district attorney with jurisdic-
21 tion in the county or city where the person against whom the order is
22 sought resides; or (b) a family or household member, as defined in
23 subdivision two of section four hundred fifty-nine-a of the social
24 services law, of the person against whom the order is sought.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16460-01-8
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1 3. "Respondent" means the person against whom an extreme risk
2 protection order is or may be sought under this article.
3 4. "Possess" shall have the same meaning as defined in subdivision
4 eight of section 10.00 of the penal law.
5 § 6341. Application for an extreme risk protection order. In accord-
6 ance with this article, a petitioner may file a sworn application, and
7 accompanying supporting documentation, setting forth the facts and
8 circumstances justifying the issuance of an extreme risk protection
9 order. Such application and supporting documentation shall be filed in
10 the supreme court in the county in which the respondent resides. The
11 chief administrator of the courts shall adopt forms that may be used for
12 purposes of such applications and the court's consideration of such
13 applications. Such application form shall include inquiry as to whether
14 the petitioner knows, or has reason to believe, that the respondent
15 owns, possesses or has access to a firearm, rifle or shotgun and if so,
16 a request that the petitioner list or describe such firearms, rifles and
17 shotguns, and the respective locations thereof, with as much specificity
18 as possible.
19 § 6342. Issuance of a temporary extreme risk protection order. 1.
20 Upon application of a petitioner pursuant to this article, the court may
21 issue a temporary extreme risk protection order, ex parte or otherwise,
22 to prohibit the respondent from purchasing, possessing or attempting to
23 purchase or possess a firearm, rifle or shotgun, upon a finding that
24 there is probable cause to believe the respondent suffers from
25 Alzheimer's disease, a related disorder or dementia. Such application
26 for a temporary order shall be determined in writing on the same day the
27 application is filed.
28 2. In determining whether grounds for a temporary extreme risk
29 protection order exist, the court shall consider any relevant factors
30 including, but not limited to, the following acts of the respondent:
31 (a) a threat or act of violence or use of physical force directed
32 toward self, the petitioner, or another person;
33 (b) a violation or alleged violation of an order of protection;
34 (c) any pending charge or conviction for an offense involving the use
35 of a weapon;
36 (d) the reckless use, display or brandishing of a firearm, rifle or
37 shotgun;
38 (e) any history of a violation of an extreme risk protection order;
39 (f) evidence of recent or ongoing abuse of controlled substances or
40 alcohol;
41 (g) evidence of recent acquisition of a firearm, rifle, shotgun or
42 other deadly weapon or dangerous instrument, or any ammunition therefor;
43 or
44 (h) evidence of a third-party taking advantage of the respondent's
45 condition to acquire a firearm, rifle, shotgun or other deadly weapon or
46 dangerous instrument, or any ammunition therefor.
47 In considering the factors under this subdivision, the court shall
48 consider the time that has elapsed since the occurrence of such act or
49 acts and the age of the person at the time of the occurrence of such act
50 or acts.
51 For the purposes of this subdivision, "recent" means within the six
52 months prior to the date the petition was filed.
53 3. The application of the petitioner and supporting documentation, if
54 any, shall set forth the factual basis for the request and probable
55 cause for issuance of a temporary order. The court may conduct an exam-
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1 ination under oath of the petitioner and any witness the petitioner may
2 produce.
3 4. A temporary extreme risk protection order, if warranted, shall
4 issue in writing, and shall include:
5 (a) a statement of the grounds found for the issuance of the order;
6 (b) the date and time the order expires;
7 (c) the address of the court that issued the order;
8 (d) a statement to the respondent: (i) directing that the respondent
9 may not purchase, possess or attempt to purchase or possess a firearm,
10 rifle or shotgun while the order is in effect and that any firearm,
11 rifle or shotgun possessed by such respondent shall be promptly surren-
12 dered to any authorized law enforcement official in the same manner as
13 set forth in subdivision five of section 530.14 of the criminal proce-
14 dure law;
15 (ii) informing the respondent that the court will hold a hearing no
16 sooner than three nor more than six business days after service of the
17 temporary order, to determine whether a final extreme risk protection
18 order will be issued and the date, time and location of such hearing,
19 provided that the respondent shall be entitled to more than six days
20 upon request in order to prepare for the hearing; and (iii) informing
21 the respondent the he or she may seek the advice of an attorney and that
22 an attorney should be consulted promptly; and
23 (e) a form to be completed and executed by the respondent at the time
24 of service of the temporary extreme risk protection order which elicits
25 a list of all firearms, rifles and shotguns possessed by the respondent
26 and the particular location of each firearm, rifle or shotgun listed.
27 5. If the application for a temporary extreme risk protection order is
28 not granted, the court shall notify the petitioner and, unless the
29 application is voluntarily withdrawn by the petitioner, nonetheless
30 schedule a hearing on the application for a final extreme risk
31 protection order. Such hearing shall be scheduled to be held promptly,
32 but in any event no later than ten business days after the date on which
33 such application is served on the respondent, provided, however, that
34 the respondent may request, and the court may grant, additional time to
35 allow the respondent to prepare for the hearing. A notice of such hear-
36 ing shall be prepared by the court and shall include the date and time
37 of the hearing, the address of the court, and the subject of the hear-
38 ing.
39 6. (a) The court shall, in the manner specified in paragraph (b) of
40 this subdivision, arrange for prompt service of a copy of the temporary
41 extreme risk protection order, if any, the application therefor and, if
42 separately applied for or if a temporary extreme risk protection order
43 was not granted, the application for an extreme risk protection order,
44 any notice of hearing prepared by the court, along with any associated
45 papers including the petition and any supporting documentation,
46 provided, that the court may redact the address and contact information
47 of the petitioner from such application and papers where the court finds
48 that disclosure of such address or other contact information would pose
49 an unreasonable risk to the health or safety of the petitioner.
50 (b) The court shall provide copies of such documents to the appropri-
51 ate law enforcement agency serving the jurisdiction of the respondent's
52 residence with a direction that such documents be promptly served, at no
53 cost to the petitioner, on the respondent; provided, however, that the
54 petitioner may voluntarily arrange for service of copies of such order
55 and associated papers through a third party, such as a licensed process
56 server.
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1 7. (a) The court shall notify the division of state police, any other
2 law enforcement agency with jurisdiction, all applicable licensing offi-
3 cers, and the division of criminal justice services of the issuance of a
4 temporary extreme risk protection order and provide a copy of such order
5 no later than the next business day after issuing the order to such
6 persons or agencies. The court also shall promptly notify such persons
7 and agencies and provide a copy of any order amending or revoking such
8 protection order or restoring the respondent's ability to own or possess
9 firearms, rifles or shotguns no later than the next business day after
10 issuing the order to restore such right to the respondent. The court
11 also shall report such demographic data as required by the state divi-
12 sion of criminal justice services at the time such order is transmitted
13 thereto. Any notice or report submitted pursuant to this subdivision
14 shall be in an electronic format, in a manner prescribed by the division
15 of criminal justice services.
16 (b) Upon receiving notice of the issuance of a temporary extreme risk
17 protection order, the division of criminal justice services shall imme-
18 diately report the existence of such order to the federal bureau of
19 investigation to allow the bureau to identify persons prohibited from
20 purchasing firearms, rifles or shotguns. The division shall also imme-
21 diately report to the bureau the expiration of any such protection
22 order, any court order amending or revoking such protection order or
23 restoring the respondent's ability to purchase a firearm, rifle or shot-
24 gun.
25 8. A law enforcement officer serving a temporary extreme risk
26 protection order shall request that the respondent immediately surrender
27 to the officer all firearms, rifles and shotguns in the respondent's
28 possession and the officer shall conduct any search permitted by law for
29 such firearms. The law enforcement officer shall take possession of all
30 firearms, rifles and shotguns that are surrendered, that are in plain
31 sight, or that are discovered pursuant to a lawful search. As part of
32 the order, the court may also direct a police officer to search for
33 firearms, rifles and shotguns in the respondent's possession in a manner
34 consistent with the procedures of article six hundred ninety of the
35 criminal procedure law.
36 9. Upon issuance of a temporary extreme risk protection order, or upon
37 setting a hearing for a final extreme risk protection order where a
38 temporary order is denied or not requested, the court shall direct the
39 law enforcement agency having jurisdiction to conduct a background
40 investigation and report to the court and, subject to any appropriate
41 redactions to protect any person, each party regarding whether the
42 respondent:
43 (a) has any prior criminal conviction for an offense involving domes-
44 tic violence, use of a weapon, or other violence;
45 (b) has any criminal charge or violation currently pending against him
46 or her;
47 (c) is currently on parole or probation;
48 (d) possesses any registered firearms, rifles or shotguns; and
49 (e) has been, or is, subject to any order of protection or has
50 violated or allegedly violated any order of protection.
51 10. Upon issuance of a temporary extreme risk protection order, or
52 upon setting a hearing for a final extreme risk protection order where a
53 temporary order is denied or not requested, the court may order a
54 respondent within its jurisdiction to be examined by a physician
55 appointed or designated for that purpose by the court when such an exam-
56 ination will serve the purposes of this article, and the court may
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1 remand any such person for physical examination to, or direct such
2 person to appear for such examination at:
3 (a) the department of health of the city of New York, if the court is
4 located in a county within the city of New York;
5 (b) a hospital maintained by the county in which the court is located,
6 if the court is in a county outside the city of New York;
7 (c) a hospital maintained by the state of New York; or
8 (d) a qualified private institution approved for such purpose by the
9 local social services department.
10 § 6343. Issuance of a final extreme risk protection order. 1. In
11 accordance with this article, no sooner than three business days nor
12 later than six business days after service of a temporary extreme risk
13 protection order and, alternatively, no later than ten business days
14 after service of an application under this article where no temporary
15 extreme risk protection order has been issued, the supreme court shall
16 hold a hearing to determine whether to issue a final extreme risk
17 protection order and, when applicable, whether a firearm, rifle or shot-
18 gun surrendered by, or removed from, the respondent should be returned
19 to the respondent. The respondent shall be entitled to more than six
20 business days if a temporary extreme risk protection order has been
21 issued and the respondent requests a reasonable period of additional
22 time to prepare for the hearing. Where no temporary order has been
23 issued, the respondent may request, and the court may grant, additional
24 time beyond the ten days to allow the respondent to prepare for the
25 hearing.
26 2. At the hearing pursuant to subdivision one of this section, the
27 petitioner shall have the burden of proving, by clear and convincing
28 evidence, that the respondent suffers from Alzheimer's disease, a
29 related disorder or dementia. The court may consider the petition and
30 any evidence submitted by the petitioner, any evidence submitted by the
31 respondent, any testimony presented, and the report of the relevant law
32 enforcement agency submitted pursuant to subdivision nine of section
33 sixty-three hundred forty-two of this article. The court shall also
34 consider the factors set forth in subdivision two of section sixty-three
35 hundred forty-two of this article.
36 3. (a) After the hearing pursuant to subdivision one of this section,
37 the court shall issue a written order granting or denying the extreme
38 risk protection order and setting forth the reasons for such determi-
39 nation. If the extreme risk protection order is granted, the court shall
40 direct service of such order in the manner and in accordance with the
41 protections for the petitioner set forth in subdivision six of section
42 sixty-three hundred forty-two of this article.
43 (b) Upon issuance of an extreme risk protection order: (i) any
44 firearm, rifle or shotgun removed pursuant to a temporary extreme risk
45 protection order or such extreme risk protection order shall be retained
46 by the law enforcement agency having jurisdiction for the duration of
47 the order, unless ownership of the firearm, rifle or shotgun is legally
48 transferred by the respondent to another individual permitted by law to
49 own and possess such firearm, rifle or shotgun; (ii) the supreme court
50 shall temporarily suspend any existing firearm license possessed by the
51 respondent and order the respondent temporarily ineligible for such a
52 license; (iii) the respondent shall be prohibited from purchasing or
53 possessing, or attempting to purchase or possess, a firearm, rifle or
54 shotgun; and (iv) the court shall direct the respondent to surrender any
55 firearm, rifle or shotgun in his or her possession in the same manner as
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1 set forth in subdivision five of section 530.14 of the criminal proce-
2 dure law.
3 (c) An extreme risk protection order issued in accordance with this
4 section shall extend, as specified by the court, for a period of up to
5 one year from the date of the issuance of such order; provided, however,
6 that if such order was immediately preceded by the issuance of a tempo-
7 rary extreme risk protection order, then the duration of the extreme
8 risk protection order shall be measured from the date of issuance of
9 such temporary extreme risk protection order.
10 (d) A law enforcement officer serving a final extreme risk protection
11 order shall request that the respondent immediately surrender to the
12 officer all firearms, rifles and shotguns in the respondent's possession
13 and the officer shall conduct any search permitted by law for such
14 firearms. The law enforcement officer shall take possession of all
15 firearms, rifles and shotguns that are surrendered, that are in plain
16 sight, or that are discovered pursuant to a lawful search. As part of
17 the order, the court may also direct a police officer to search for
18 firearms, rifles and shotguns in a respondent's possession consistent
19 with the procedures of article six hundred ninety of the criminal proce-
20 dure law.
21 4. (a) The court shall notify the division of state police, any other
22 law enforcement agency with jurisdiction, all applicable licensing offi-
23 cers, and the division of criminal justice services of the issuance of a
24 final extreme risk protection order and provide a copy of such order to
25 such persons and agencies no later than the next business day after
26 issuing the order. The court also shall promptly notify such persons and
27 agencies and provide a copy of any order amending or revoking such
28 protection order or restoring the respondent's ability to own or possess
29 firearms, rifles or shotguns no later than the next business day after
30 issuing the order to restore such right to the respondent. Any notice or
31 report submitted pursuant to this subdivision shall be in an electronic
32 format, in a manner prescribed by the division of criminal justice
33 services.
34 (b) Upon receiving notice of the issuance of a final extreme risk
35 protection order, the division of criminal justice services shall imme-
36 diately report the existence of such order to the federal bureau of
37 investigation to allow the bureau to identify persons prohibited from
38 purchasing firearms, rifles or shotguns. The division shall also imme-
39 diately report to the bureau the expiration of such protection order and
40 any court order amending or revoking such protection order or restoring
41 the respondent's ability to purchase a firearm, rifle or shotgun.
42 5. (a) If, in accordance with a temporary extreme risk protection
43 order, a firearm, rifle or shotgun has been surrendered by or removed
44 from the respondent, and the supreme court subsequently finds that the
45 petitioner has not met the required standard of proof, the court's find-
46 ing shall include a written order, issued to all parties, directing that
47 any firearm, rifle or shotgun surrendered or removed pursuant to such
48 temporary order shall be returned to the respondent, upon a written
49 finding that there is no legal impediment to the respondent's possession
50 of such firearm, rifle or shotgun.
51 (b) If any other person demonstrates that he or she is the lawful
52 owner of any firearm, rifle or shotgun surrendered or removed pursuant
53 to a protection order issued in accordance with this article, and
54 provided that the court has made a written finding that there is no
55 legal impediment to the person's possession of a surrendered or removed
56 firearm, rifle or shotgun, the court shall direct that such firearm,
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1 rifle or shotgun be returned to such lawful owner and inform such person
2 of the obligation to safely store such firearm, rifle, or shotgun in
3 accordance with section 265.45 of the penal law.
4 6. The respondent shall be notified on the record and in writing by
5 the court that he or she may submit one written request, at any time
6 during the effective period of an extreme risk protection order, for a
7 hearing setting aside any portion of such order. The request shall be
8 submitted in substantially the same form and manner as prescribed by the
9 chief administrator of the courts. Upon such request, the court shall
10 promptly hold a hearing, in accordance with this article, after provid-
11 ing reasonable notice to the petitioner. The respondent shall bear the
12 burden to prove, by clear and convincing evidence, any change of circum-
13 stances that may justify a change to the order.
14 § 6344. Surrender and removal of firearms, rifles and shotguns pursu-
15 ant to an extreme risk protection order. 1. When a law enforcement offi-
16 cer takes any firearm, rifle or shotgun pursuant to a temporary extreme
17 risk protection order or a final extreme risk protection order, the
18 officer shall give to the person from whom such firearm, rifle or shot-
19 gun is taken a receipt or voucher for the property taken, describing the
20 property in detail. In the absence of a person, the officer shall leave
21 the receipt or voucher in the place where the property was found, mail a
22 copy of the receipt or voucher, retaining proof of mailing, to the last
23 known address of the respondent and, if different, the owner of the
24 firearm, rifle or shotgun, and file a copy of such receipt or voucher
25 with the court. All firearms, rifles and shotguns in the possession of a
26 law enforcement official pursuant to this article shall be subject to
27 the provisions of applicable law, including but not limited to subdivi-
28 sion six of section 400.05 of the penal law; provided, however, that any
29 such firearm, rifle or shotgun shall be retained and not disposed of by
30 the law enforcement agency for at least two years unless legally trans-
31 ferred by the respondent to an individual permitted by law to own and
32 possess such firearm, rifle or shotgun.
33 2. If the location to be searched during the execution of a temporary
34 extreme risk protection order or extreme risk protection order is joint-
35 ly occupied by two or more parties, and a firearm, rifle or shotgun
36 located during the execution of such order is owned by a person other
37 than the respondent, the court shall, upon a written finding that there
38 is no legal impediment to the person other than the respondent's
39 possession of such firearm, rifle or shotgun, order the return of such
40 firearm, rifle or shotgun to such lawful owner and inform such person of
41 their obligation to safely store their firearm, rifle, or shotgun in
42 accordance with section 265.45 of the penal law.
43 § 6345. Request for renewal of an extreme risk protection order. 1.
44 If a petitioner believes a person subject to an extreme risk protection
45 order continues to be likely to engage in conduct that would result in
46 serious harm to himself, herself, or others, as defined in paragraph one
47 or two of subdivision (a) of section 9.39 of the mental hygiene law,
48 such petitioner may, at any time within sixty days prior to the expira-
49 tion of such existing extreme risk protection order, initiate a request
50 for a renewal of such order, setting forth the facts and circumstances
51 necessitating the request. The chief administrator of the courts shall
52 adopt forms that may be used for purposes of such applications and the
53 court's consideration of such applications. The court may issue a tempo-
54 rary extreme risk protection order in accordance with section sixty-
55 three hundred forty-two of this article, during the period that a
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1 request for renewal of an extreme risk protection order is under consid-
2 eration pursuant to this section.
3 2. A hearing held pursuant to this section shall be conducted in the
4 supreme court, in accordance with section sixty-three hundred forty-
5 three of this article, to determine if a request for renewal of the
6 order shall be granted. The respondent shall be served with written
7 notice of an application for renewal a reasonable time before the hear-
8 ing, and shall be afforded an opportunity to fully participate in the
9 hearing. The court shall direct service of such application and the
10 accompanying papers in the manner and in accordance with the protections
11 for the petitioner set forth in subdivision six of section sixty-three
12 hundred forty-two of this article.
13 § 6346. Expiration of an extreme risk protection order. 1. A
14 protection order issued pursuant to this article, and all records of any
15 proceedings conducted pursuant to this article, shall be sealed upon
16 expiration of such order and the clerk of the court wherein such
17 proceedings were conducted shall immediately notify the commissioner of
18 the division of criminal justice services, the heads of all appropriate
19 police departments, applicable licensing officers, and all other appro-
20 priate law enforcement agencies that the order has expired and that the
21 record of such protection order shall be sealed and not be made avail-
22 able to any person or public or private entity, except that such records
23 shall be made available to:
24 (a) the respondent or the respondent's designated agent;
25 (b) courts in the unified court system;
26 (c) police forces and departments having responsibility for enforce-
27 ment of the general criminal laws of the state;
28 (d) any state or local officer or agency with responsibility for the
29 issuance of licenses to possess a firearm, rifle or shotgun, when the
30 respondent has made application for such a license; and
31 (e) any prospective employer of a police officer or peace officer as
32 those terms are defined in subdivisions thirty-three and thirty-four of
33 section 1.20 of the criminal procedure law, in relation to an applica-
34 tion for employment as a police officer or peace officer; provided,
35 however, that every person who is an applicant for the position of
36 police officer or peace officer shall be furnished with a copy of all
37 records obtained under this subparagraph and afforded an opportunity to
38 make an explanation thereto.
39 2. Upon expiration of a protection order issued pursuant to this arti-
40 cle and upon written application of the respondent who is the subject of
41 such order, with notice and opportunity to be heard to the petitioner
42 and every licensing officer responsible for issuance of a firearm
43 license to the subject of the order pursuant to article four hundred of
44 the penal law, and upon a written finding that there is no legal imped-
45 iment to the respondent's possession of a surrendered firearm, rifle or
46 shotgun, the court shall order the return of a firearm, rifle or shotgun
47 not otherwise disposed of in accordance with subdivision one of section
48 sixty-three hundred forty-four of this article. When issuing such order
49 in connection with any firearm subject to a license requirement under
50 article four hundred of the penal law, if the licensing officer informs
51 the court that he or she will seek to revoke the license, the order
52 shall be stayed by the court until the conclusion of any license revoca-
53 tion proceeding.
54 § 6347. Effect of findings and determinations in subsequent
55 proceedings. Notwithstanding any contrary claim based on common law or
56 a provision of any other law, no finding or determination made pursuant
A. 11379 9
1 to this article shall be interpreted as binding, or having collateral
2 estoppel or similar effect, in any other action or proceeding, or with
3 respect to any other determination or finding, in any court, forum or
4 administrative proceeding.
5 § 2. Section 265.45 of the penal law, as amended by section 3 of part
6 FF of chapter 57 of the laws of 2013, is amended to read as follows:
7 § 265.45 Safe storage of rifles, shotguns, and firearms.
8 No person who owns or is custodian of a rifle, shotgun or firearm who
9 resides with an individual who such person knows or has reason to know
10 is prohibited from possessing a firearm pursuant to 18 U.S.C. § 922(g)
11 (1), (4), (8) or (9), or pursuant to a temporary or final extreme risk
12 protection order issued under article sixty-three-A of the civil prac-
13 tice law and rules, shall store or otherwise leave such rifle, shotgun
14 or firearm out of his or her immediate possession or control without
15 having first securely locked such rifle, shotgun or firearm in an appro-
16 priate safe storage depository or rendered it incapable of being fired
17 by use of a gun locking device appropriate to that weapon. For purposes
18 of this section "safe storage depository" shall mean a safe or other
19 secure container which, when locked, is incapable of being opened with-
20 out the key, combination or other unlocking mechanism and is capable of
21 preventing an unauthorized person from obtaining access to and
22 possession of the weapon contained therein. With respect to a person who
23 is prohibited from possessing a firearm pursuant to 18 USC § 922(g)(9),
24 for purposes of this section, this section applies only if such person
25 has been convicted of a crime included in subdivision one of section
26 370.15 of the criminal procedure law and such gun is possessed within
27 five years from the later of the date of conviction or completion of
28 sentence. Nothing in this section shall be deemed to affect, impair or
29 supersede any special or local act relating to the safe storage of
30 rifles, shotguns or firearms which impose additional requirements on the
31 owner or custodian of such weapons.
32 A violation of this section shall constitute a class A misdemeanor.
33 § 3. This act shall take effect on the one hundred eightieth day after
34 it shall have become a law.