Add Art 63-A §§6340 - 6347, CPLR; amd §530.14, CP L; amd §265.45, Pen L
Establishes extreme risk protection orders as a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun and establishes procedures for the application, administration, and expiration or termination of such protection orders.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6994
SPONSOR: Kavanagh TITLE OF BILL: An act to amend the civil practice law and rules, the
criminal procedure law and the penal law, in relation to establishing
extreme risk protection orders as court-issued orders of protection
prohibiting a person from purchasing, possessing or attempting to
purchase or possess a firearm, rifle or shotgun
PURPOSE:
To prevent individuals from accessing firearms, rifles, and shotguns who
have been deemed, through judicial process, likely to engage in conduct
that would result in serious harm to themselves or others.
SUMMARY OF PROVISIONS:
Section one of the bill creates a new Article 63-A of Civil Practice Law
and Rules to establish extreme risk protection orders. The new sections
of Article 63-A are summarized as follows:
Section 6340 establishes definitions. It defines "extreme risk
protection order" to mean a court-issued order of protection prohibiting
a person from purchasing, possessing, or attempting to purchase or
possess a firearm, rifle or shotgun.
Section 6341 sets forth the application process for those seeking an
order of protection. The petitioner files a sworn application describing
the circumstances and justification for the request.
Section 6342 describes the process for the issuance of a temporary
extreme risk protection order:
To grant a temporary extreme risk protection order, the court must find
that there is probable cause to believe the respondent is likely to
engage in conduct that would result in serious harm to himself, herself,
or others, as defined in paragraph one or two of subdivision (a) of
section 9.39 of the mental hygiene law. The court must also evaluate
other relevant factors specified in the bill.
- If the application is granted, a temporary extreme risk protection
order will be issued. This will prohibit the respondent from purchasing,
possessing, or attempting to purchase or possess a firearm, rifle, or
shotgun while the order is in effect, and to surrender any firearms,
rifles or shotguns to law enforcement pending a court hearing to be held
no sooner than three days nor longer than six days after the issuance of
a temporary order, unless the respondent requests more time to prepare,
to determine whether a final extreme risk protection order will be
issued.
Section 6343 describes the issuance of a final extreme risk protection
order:
-At the hearing, the petitioner must prove by clear and convincing
evidence that the petitioner is likely to engage in conduct that would
result in serious harm to himself, herself; or others as defined in
paragraph one or two of subdivision (a) of section 9.39 of the mental
hygiene law.
-If the final order is granted by the court, any firearm, rifle, or
shotgun removed under a temporary order will be retained by the law
enforcement agency and the respondent will be prohibited from purchas-
ing, attempting to purchase, or possessing a firearm, rifle or shotgun
for up to one year, subject to renewal. Any firearm license will also be
suspended for the duration of the time that the extreme risk protection
order is in effect.
-The respondent is permitted to appeal a court's decision to issue an
extreme risk protection order under the existing appeals procedure
provided in the civil practice laws and rules. Additionally, the
respondent is entitled to submit one request, at any time during the
effective period of an extreme risk protection order, for a hearing at
which said respondent bears the burden to prove, by clear and convincing
evidence, any change of circumstances that may justify a change to the
order.
Section 6344 sets forth how firearms, rifles, and shotguns shall be
surrendered to or removed by law enforcement officers:
-The law enforcement officer must leave or mail a receipt or voucher to
the location where the property was found.
-Law enforcement must retain any firearm, rifle or shotgun surrendered
or removed pursuant to an extreme risk protection order for at least two
years following the expiration of the order unless otherwise transferred
or sold.
Section 6345 lays out the process for a request for renewal of an
extreme risk protection order:
-The petitioner may file a request for a renewal of an extreme risk
protection order within 60 days of the expiration of an existing order.
Pursuant to such a request a hearing must be conducted in accordance
with section 6343 of this article to determine if the renewal is justi-
fied.
Section 6346 discusses the expiration of an extreme risk protection
order:
-The section provides for sealing of all records upon expiration of an
order, with limited availability to relevant parties. The section also
outlines how the return of a firearm, rifle, or shotgun shall take
place.
Section 6347 states that findings relevant to an extreme risk protection
order shall not have any effect on any other action or proceeding.
Section two of the bill amends the criminal procedure law to outline the
procedure for the return of a firearm, rifle, or shotgun following the
expiration of any suspension order.
Section three of the bill amends the penal law to include temporary or
final extreme risk protection orders in the safe storage provision.
Section four of the bill sets forth the effective date.
JUSTIFICATION:
Family and household members are often the first to know when someone is
experiencing a crisis or exhibiting dangerous behavior. They may even
report their fears to law enforcement, but in New York, as in many other
states, law enforcement officers may not have the authority to intervene
based on the evidence they are provided, sometimes resulting in prevent-
able tragedies, including interpersonal gun violence or suicide involv-
ing a gun.
In 2014, California became the first state in the nation to enact a law
empowering family members and law enforcement to petition a court to
have individuals' access to guns temporarily suspended when they are at
risk of harming themselves or others. In 2016, Washington State enacted
similar measures through a ballot initiative. Laws providing a procedure
for the removal of firearms from at-risk individuals have existed for
years in Indiana, and studies have shown that a similar provision of
Connecticut law has resulted in a measurable reduction in suicide rates.
Enacting extreme risk protection orders here would keep New Yorkers safe
while respecting due process rights.
FISCAL IMPACT ON THE STATE:
Some costs associated with the implementation and administration of the
procedures established by this legislation, possibly offset by a
reduction in costs related to gun violence.
FISCAL IMPACT ON LOCALITIES:
Some costs associated with the implementation and administration of the
procedures established by this legislation, possibly offset by a
reduction in costs related to gun violence.
IMPACT ON REGULATION OF BUSINESSES AND INDIVIDUALS:
Individuals who are subject to an order issued by a court would have
their rights to access guns temporarily suspended.
IMPACT ON FINES, IMPRISONMENT, FORFEITURE OF RIGHTS, OR OTHER PENAL
SANCTIONS:
An individual who violates an order would be subject to the penalties
under existing New York law for a prohibited person who possesses,
purchases, or attempts to possess or purchase a firearm, rifle, or shot-
gun.
LEGISLATIVE HISTORY:
2016: A07038 (Kavanagh) - Codes
2015: A07038 (Kavanagh) - Codes
EFFECTIVE DATE:
This act shall take effect on the 180th day after it shall have become a
law.
