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A07021 Summary:

BILL NOA07021
 
SAME ASSAME AS S06826
 
SPONSORThiele
 
COSPNSR
 
MLTSPNSR
 
Amd 6340, 6341, 6342 & 6343, CPLR
 
Relates to extreme risk protection orders; defines "exception"; authorizes a police officer or district attorney to file an application for an extreme risk protection order if found that a person meets the requirements of an exception pursuant to section 6340 of the civil practice law and rules; makes related provisions.
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A07021 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7021
 
SPONSOR: Thiele
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to extreme risk protection orders   PURPOSE: To provide district attorneys and law enforcement discretion in filing an application for an extreme risk protection order in situations where a respondent is currently prohibited from possessing a firearm, rifle or shotgun; and to clarify the standard the court must find for the issu- ance of an extreme risk protection order.   SUMMARY OF PROVISIONS: Section 1: Adds a new paragraph 5 to § 6340 of the Civil Practice Law and Rules ("CPLR") to define exceptions. Section 2: Amends § 6341 of the CPLR to allow district attorneys and police officers discretion to file an application for an extreme risk protection order if an exception exists. Section 3: Amends § 6342 of the CPLR to define the risk of harm the court must find for the issuance of a temporary extreme risk protection order. Section 4: Amends § 6343 of the CPLR to define the risk of harm the court must find for the issuance of a final extreme risk protection order. Section 5: Establishes the effective date.   JUSTIFICATION: The adoption of Article 63-A "Red Flag Law" of the CPLR was important step in combating gun violence in New York State. Allowing persons to seek an "extreme risk protection order" to remove firearms from the possession of someone who is an imminent risk to themselves and others will save lives. The amendment to the statute adopted in 2022 to mandate the filing of an application for an extreme risk protection order by district attorneys and police officers, was a valid response to concern regarding the exer- cise of discretion, however the statute makes no exceptions for individ- uals who are already prohibited from possessing firearms, rifles and shotguns, and the redundancy of such applications and hearings overbur- dens resources. The reinstating of discretion in limited circumstances is warranted and would provide fiscal relief to the agencies and judi- cial system. A recent court decision (G.W. v. C.N., 78 Misc.3d 289 (2022)) demon- strates that the legislative intent in defining the standard of risk that the court must find to issue an extreme risk protection order, by referencing a definition in Mental Hygiene Law (§ 9.39(a) (1) or (2)) has been misconstrued to require that the procedure outlined in that Article must be followed as well as the procedure outlined in CPLR Article 63-A. To avoid that misinterpretation, Article 63-A of the CPLR is amended to define the risk and remove the reference to Mental Hygiene Law.   LEGISLATIVE HISTORY: 2023: New legislation.   FISCAL IMPLICATIONS: To be determined   EFFECTIVE DATE: This act shall take effect immediately.
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A07021 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7021
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 10, 2023
                                       ___________
 
        Introduced by M. of A. THIELE -- read once and referred to the Committee
          on Codes
 
        AN ACT to amend the civil practice law and rules, in relation to extreme
          risk protection orders
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 6340 of the civil practice law and rules is amended
     2  by adding a new subdivision 5 to read as follows:
     3    5. "Exception" means a respondent who: (a) has previously been  deemed
     4  certified  not suitable to possess a rifle or shotgun pursuant to subdi-
     5  vision sixteen of section 265.00 of the penal law;  (b)  has  previously
     6  been convicted of a felony, or serious offense as defined by subdivision
     7  seventeen  of section 265.00 of the penal law; (c) has a current suspen-
     8  sion or ineligibility order  issued  pursuant  to  the  provisions    of
     9  section    530.14   of the criminal   procedure   law  or section  eight
    10  hundred forty-two-a of the family court act, with an expiration date  no
    11  less  than  one year from the date of the filing of the petition; or (d)
    12  is a person under the age of sixteen; and the petition  would  be  based
    13  only  upon such person's likelihood to engage in conduct posing a threat
    14  of harm to himself or herself; and the person did not  threaten  or  use
    15  physical force directed at the petitioner or another person or a school;
    16  and  the  person  did not use or threaten the use of a firearm, rifle or
    17  shotgun; and there is no evidence of a firearm, rifle, shotgun or  ammu-
    18  nition possessed by anyone in the person's household.
    19    §  2.  Section 6341 of the civil practice law and rules, as amended by
    20  chapter 208 of the laws of 2022, is amended to read as follows:
    21    § 6341. Application for an extreme risk protection order.  In  accord-
    22  ance  with  this  article,  a  petitioner may file an application, which
    23  shall be sworn, and accompanying supporting documentation, setting forth
    24  the facts and circumstances justifying the issuance of an  extreme  risk
    25  protection  order.  Provided, however, that a petitioner who is a police
    26  officer or district  attorney  shall  file  such  application  upon  the
    27  receipt  of  credible information that an individual is likely to engage
    28  in conduct that would result in serious  harm  to  himself,  herself  or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10980-01-3

        A. 7021                             2
 
     1  others, as defined in paragraph one or two of subdivision (a) of section
     2  9.39  of  the mental hygiene law, unless such petitioner determines that
     3  there is no probable cause for such filing, or unless an exception list-
     4  ed in paragraph five of section six thousand three hundred forty of this
     5  article  exists,  in  which case a petitioner who is a police officer or
     6  district attorney has the discretion whether or not to file such  appli-
     7  cation.  Such application and supporting documentation shall be filed in
     8  the supreme court in the county in which  the  respondent  resides.  The
     9  chief administrator of the courts shall adopt forms that may be used for
    10  purposes  of  such  applications  and  the court's consideration of such
    11  applications. Such application form shall include inquiry as to  whether
    12  the  petitioner  knows,  or  has  reason to believe, that the respondent
    13  owns, possesses or has access to a firearm, rifle or shotgun and if  so,
    14  a request that the petitioner list or describe such firearms, rifles and
    15  shotguns, and the respective locations thereof, with as much specificity
    16  as possible.
    17    §  3.  Subdivision  1  of  section  6342 of the civil practice law and
    18  rules, as added by chapter 19 of the laws of 2019, is amended to read as
    19  follows:
    20    1. Upon application of a petitioner  pursuant  to  this  article,  the
    21  court  may  issue a temporary extreme risk protection order, ex parte or
    22  otherwise, to prohibit the respondent  from  purchasing,  possessing  or
    23  attempting  to  purchase  or possess a firearm, rifle or shotgun, upon a
    24  finding that there is probable cause to believe the respondent is likely
    25  to engage in conduct that would result  in  [serious  harm  to  himself,
    26  herself or others, as defined in paragraph one or two of subdivision (a)
    27  of  section  9.39  of  the  mental hygiene law]: (a) substantial risk of
    28  physical harm to himself or herself  as  manifested  by  threats  of  or
    29  attempts  at suicide or serious bodily harm or other conduct demonstrat-
    30  ing that he or she is dangerous to himself or herself, or (b) a substan-
    31  tial risk of physical harm to other persons as manifested  by  homicidal
    32  or  other violent behavior by which others are placed in reasonable fear
    33  of serious physical harm. Such application for a temporary  order  shall
    34  be determined in writing on the same day the application is filed.
    35    §  4.  Subdivision  2  of  section  6343 of the civil practice law and
    36  rules, as added by chapter 19 of the laws of 2019, is amended to read as
    37  follows:
    38    2. At the hearing pursuant to subdivision one  of  this  section,  the
    39  petitioner  shall  have  the  burden of proving, by clear and convincing
    40  evidence, that the respondent is likely to engage in conduct that  would
    41  result  in  [serious  harm  to himself, herself or others, as defined in
    42  paragraph one or two of subdivision (a) of section 9.39  of  the  mental
    43  hygiene  law]:  (a)  substantial  risk  of  physical  harm to himself or
    44  herself as manifested by threats of or attempts at  suicide  or  serious
    45  bodily  harm  or other conduct demonstrating that he or she is dangerous
    46  to himself or herself, or (b) a substantial risk  of  physical  harm  to
    47  other  persons  as  manifested by homicidal or other violent behavior by
    48  which others are placed in reasonable fear of serious physical harm. The
    49  court may consider the petition and any evidence submitted by the  peti-
    50  tioner,   any  evidence  submitted  by  the  respondent,  any  testimony
    51  presented, and the report of the relevant law enforcement agency submit-
    52  ted pursuant to subdivision nine of section sixty-three  hundred  forty-
    53  two of this article. The court shall also consider the factors set forth
    54  in  subdivision  two  of  section  sixty-three hundred forty-two of this
    55  article.
    56    § 5. This act shall take effect immediately.
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