Provides for the mandatory revocation or suspension of the firearms license of, and eligibility therefor of an individual against whom an order or temporary order of protection has been issued, under certain circumstances.
Sponsor: SAVINO / Committee: CHILDREN AND FAMILIES
Law Section: Family Court Act / Law: Amd SS842-a & 846-a, add SS446-a, 552, 656-a & 1056-a, Art 7 Part 7 S780-a, Fam Ct Act; amd SS240 & 252, Dom Rel L; amd S530.14, CP L
Sponsor: SAVINO / Committee: CHILDREN AND FAMILIES
Law Section: Family Court Act / Law: Amd SS842-a & 846-a, add SS446-a, 552, 656-a & 1056-a, Art 7 Part 7 S780-a, Fam Ct Act; amd SS240 & 252, Dom Rel L; amd S530.14, CP L
S7205-2011 Actions
- May 2, 2012: REFERRED TO CHILDREN AND FAMILIES
S7205-2011 Memo
BILL NUMBER:S7205 TITLE OF BILL: An act to amend the family court act, the domestic relations law and the criminal procedure law, in relation to providing for the mandatory suspension or revocation of the firearms license of a person against whom an order of protection or a temporary order of protection has been issued under certain circumstances, or upon violation of any such order PURPOSE OF BILL: The purpose of this measure is to enhance protections for the safety of victims of domestic violence by strengthening the firearm surrender, and gun license suspension and revocation provisions in family court, matrimonial and criminal cases where an order of protection has been issued. SUMMARY OF PROVISIONS OF BILL: Section 1 amends subdivisions 1, 2 and 3 of �842-a of the Family Court Act to require a court to direct immediate suspension of firearm licenses, order the respondent ineligible for such licenses and to direct immediate surrender of all firearms owned or possessed by the person against whom a temporary order of protection or final order of protection is issued or in instances of willful violation of such orders where the court finds a "substantial risk" that the individual may use or threaten to use a firearm unlawfully against the person for whose protection the order was issued. At present directing surrender of firearms and suspension of and ineligibility for firearm licenses where there is such a substantial risk is discretionary. This section cross references other sections of the family court act where an order of protection may be issued to ensure that the same firearm suspension, revocation and ineligibility provisions apply uniformly in other instances where an order of protection is issued in family court. Additionally, this section replaces the term "serious physical injury" with "physical injury" in the firearm suspension provisions of the family court act to conform to the 2007 amendments made to its criminal procedure law counterparts. Section amends �846-a of the family court act to make corresponding changes to the firearm surrender and gun license suspension and revocation provisions therein. Sections 3, 4, 5, 6 and 7 amend articles 4, 5, 6, 7 and 10 of the family court act respectively by adding a new section to each of those articles (�446-a, 552-a, 656-a, 780-a, 1056-a) with identical language providing that the firearm surrender and license suspension, revocation and ineligibility provisions as outlined in Article 8 of the family court act will apply. Sections 8 and 9 amend sections 240 and 252 of the Domestic Relations Law to make corresponding changes to the firearm surrender and gun license suspension and revocation provisions applicable to orders of protection and temporary orders of protection issued in matrimonial actions. Sections 10, 11 and 12 amend subdivisions 1, 2 and 3, respectively of the criminal procedure law to make conforming changes to the existing firearm surrender and gun license suspension, revocation and eligibility provisions applicable in a criminal case where a temporary or final order of protection is issued and in cases where the respondent has been found to have willfully violated a pending order of protection where the court finds a "substantial risk" that the individual may use or threaten to use a firearm unlawfully against the person for whose protection the order was issued. Section 13 provides for an immediate effective date. JUSTIFICATION: This measure makes changes to the firearms provisions of the Family Court Act to conform to the 2007 amendments made to its Criminal Procedure Law counterparts relating to surrender, suspension, revocation of and ineligibility for firearms where a respondent has previously been found to have willfully violated a prior order of protection or temporary order of protection and where such violation involved infliction of physical injury. There is no reason why these conforming changes should not be made to the Family Court Act. In addition, this measure clarifies that the same firearm procedures governing family offense proceedings under article eight of the Family Court Act will apply to orders of protection issued in other contexts in family court and in matrimonial cases under the domestic relations law. Orders of protection may be issued in the context of a criminal proceeding or in the context of a family court proceeding in family court. They may also be issued in the context of other family court proceedings such as child support, custody/visitation, paternity, PINS and abuse and neglect cases, as well as in the context of a matrimonial proceeding under the Domestic Relations Law. However, at present, the firearm surrender and gun license suspension, revocation and ineligibility provisions and procedures are referenced only in the Criminal Procedure Law and in article eight of the Family Court Act. This proposal remedies this by cross referencing the relevant article eight provisions of the Family Court Act. Lastly, this measure amends the Family Court Act and the Criminal Procedure Law to make immediate surrender of firearms mandatory where the court finds a substantial risk that the individual may use or threaten to use a firearm unlawfully against the person for whose protection the order is issued. Currently, mandatory suspension of firearms despite such a substantial risk to the protected party is discretionary, except under certain very limited circumstances. Orders of protection are intended to prevent violent crimes from occurring and are issued in cases involving domestic violence. However, individuals against whom such orders are issued often ignore the restrictions contained in such orders and, when they possess a firearm, the consequences can be tragic. There is not reason why firearms should be permitted to remain in the hands of those who present a "substantial risk" that they may use a firearm to harm the person for whose protection the order is issued. Domestic violence continues unabated and in some parts of the state, intimate partner violence is on the rise. According to the Office of Prevention of Domestic violence, domestic violence indicators are on the rise. Horrific incidents of domestic violence related homicides continue as spotlighted by media coverage of recent tragic domestic violence related homicides in New York. Close to a quarter of all homicides reported outside of New York City in 2009 were domestic violence related. Domestic violence is the leading cause of homicide for women. In 2009, women accounted for 67% of domestic homicides in New York as compared to 13% of all other homicides. Females were victims in 76% of the intimate partner homicides reported in 2009. In addition, in 2009 firearms were used in 25% of domestic homicides statewide. Ensuring that firearms are removed from the hands of perpetrators of domestic abuse where there is a substantial risk to the victim will help increase victim safety. This bill will minimize the risk that a respondent or defendant will injure the victim with a firearm despite the existence of a current order of protection. LEGISLATIVE HISTORY: New bill, 2011 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None. EFFECTIVE DATE: Immediately.
S7205-2011 Text
S T A T E O F N E W Y O R K
7205 I N SENATE May 2, 2012
Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families
AN ACT to amend the family court act, the domestic relations law and the criminal procedure law, in relation to providing for the mandatory suspension or revocation of the firearms license of a person against whom an order of protection or a temporary order of protection has been issued under certain circumstances, or upon violation of any such order
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 1, 2 and 3 of section 842-a of the family court act, as added by chapter 644 of the laws of 1996, paragraph (a) of subdivision 1 as amended by chapter 434 of the laws of 2000, the opening paragraph of subdivision 3 as amended by chapter 597 of the laws of 1998, paragraph (a) of subdivision 3 as amended by chapter 635 of the laws of 1999, are amended to read as follows:
1. [Mandatory and permissive suspension] SUSPENSION of firearms license and ineligibility for such a license upon the issuance of a temporary order of protection. Whenever a temporary order of protection is issued pursuant to section eight hundred twenty-eight of this article, OR PURSUANT TO ARTICLE FOUR, FIVE, SIX, SEVEN OR TEN OF THIS ACT:
(a) the court shall suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court receives information that gives the court good cause to believe that: (i) the respondent has a prior conviction of any violent felony offense as defined in section 70.02 of the penal law; (ii) the respondent has previously been found to have willfully failed to obey a prior order of protection and such willful failure involved (A) the infliction of [serious] physical injury, as defined in subdivision [ten] NINE of section 10.00 of the penal law, (B) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09906-04-2
S. 7205 2 (C) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or (iii) the respondent has a prior conviction for stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and (b) the court [may] SHALL where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the temporary order of protection is issued, suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed. 2. [Mandatory and permissive revocation] REVOCATION or suspension of firearms license and ineligibility for such a license upon the issuance of an order of protection. Whenever an order of protection is issued pursuant to section eight hundred forty-one of this part, OR PURSUANT TO ARTICLE FOUR, FIVE, SIX, SEVEN OR TEN OF THIS ACT:
(a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court finds that the conduct which resulted in the issuance of the order of protection involved (i) the infliction of [serious] phys ical injury, as defined in subdivision [ten] NINE of section 10.00 of the penal law, (ii) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or (iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; and (b) the court [may] SHALL, where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued, (i) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend or continue to suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed. 3. [Mandatory and permissive revocation] REVOCATION or suspension of firearms license and ineligibility for such a license upon a finding of a willful failure to obey an order of protection OR TEMPORARY ORDER OF PROTECTION. Whenever a respondent has been found, pursuant to section eight hundred forty-six-a of this part to have willfully failed to obey an order of protection OR TEMPORARY ORDER OF PROTECTION issued PURSUANT TO THIS ACT OR THE DOMESTIC RELATIONS LAW, OR by this court or [an orderof protection issued] by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, in addition to any other remedies available pursuant to section eight hundred forty-six-a of this part:
(a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the willful failure to obey such order involves (i) the infliction of [serious] physical injury, as defined in subdivision [ten] NINE of section 10.00 of the penal law, (ii) the use or threatened use of a S. 7205 3 deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or (iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or (iv) behavior constituting stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and (b) the court [may] SHALL where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection was issued, (i) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, whether or not the respondent possesses such a license, and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed.
S 2.
Section 846-a of the family court act, as amended by chapter 597 of the laws of 1998, is amended to read as follows:
S 846-a. Powers on failure to obey order. If a respondent is brought before the court for failure to obey any lawful order issued under this article or an order of protection OR TEMPORARY ORDER OF PROTECTION issued PURSUANT TO THIS ACT OR ISSUED by a court of competent jurisdic tion of another state, territorial or tribal jurisdiction [in a proceed-ing] and if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order, the court may modify an existing order OR TEMPORARY ORDER OF PROTECTION to add reasonable conditions of behavior to the existing order [ofprotection], make a new order of protection in accordance with section eight hundred forty-two OF THIS PART, may order the forfeiture of bail in a manner consistent with article five hundred forty of the criminal procedure law if bail has been ordered pursuant to this act, may order the respondent to pay the petitioner's reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful, and may commit the respond ent to jail for a term not to exceed six months. Such commitment may be served upon certain specified days or parts of days as the court may direct, and the court may, at any time within the term of such sentence, revoke such suspension and commit the respondent for the remainder of the original sentence, or suspend the remainder of such sentence. If the court determines that the willful failure to obey such order involves violent behavior constituting the crimes of menacing, reckless endanger ment, assault or attempted assault and if such a respondent is licensed to carry, possess, repair and dispose of firearms pursuant to section 400.00 of the penal law, the court may also immediately revoke such license and may arrange for the immediate surrender and disposal of any firearm such respondent owns or possesses. If the willful failure to obey such order involves the infliction of [serious] physical injury as defined in subdivision [ten] NINE of section 10.00 of the penal law or the use or threatened use of a deadly weapon or dangerous instrument, as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, such revocation and immediate surrender and disposal of any firearm owned or possessed by respondent shall be manda tory, pursuant to subdivision eleven of section 400.00 of the penal law. S. 7205 4
S 3. The family court act is amended by adding a new section 446-a to read as follows:
S 446-A. FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY. UPON THE ISSUANCE OF AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION, OR UPON A VIOLATION OF SUCH ORDER, THE COURT SHALL MAKE A DETERMINATION REGARDING THE SUSPENSION AND REVOCATION OF A LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS IN ACCORDANCE WITH SECTION EIGHT HUNDRED FORTY-TWO-A OF THIS ACT.
S 4. The family court act is amended by adding a new section 552 to read as follows:
S 552. FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY. UPON THE ISSUANCE OF AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION, OR UPON A VIOLATION OF SUCH ORDER, THE COURT SHALL MAKE A DETERMINATION REGARDING THE SUSPENSION AND REVOCATION OF A LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS IN ACCORDANCE WITH SECTION EIGHT HUNDRED FORTY-TWO-A OF THIS ACT.
S 5. The family court act is amended by adding a new section 656-a to read as follows:
S 656-A. FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY. UPON THE ISSUANCE OF AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION, OR UPON A VIOLATION OF SUCH ORDER, THE COURT SHALL MAKE A DETERMINATION REGARDING THE SUSPENSION AND REVOCATION OF A LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS IN ACCORDANCE WITH SECTION EIGHT HUNDRED FORTY-TWO-A OF THIS ACT.
S 6. Part 7 of article 7 of the family court act is amended by adding a new section 780-a to read as follows:
S 780-A. FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY. UPON THE ISSUANCE OF AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION, OR UPON A VIOLATION OF SUCH ORDER, THE COURT SHALL MAKE A DETERMINATION REGARDING THE SUSPENSION AND REVOCATION OF A LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS IN ACCORDANCE WITH SECTION EIGHT HUNDRED FORTY-TWO-A OF THIS ACT.
S 7. The family court act is amended by adding a new section 1056-a to read as follows:
S 1056-A. FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY. UPON THE ISSUANCE OF AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION, OR UPON A VIOLATION OF SUCH ORDER, THE COURT SHALL MAKE AN ORDER IN ACCORDANCE WITH SECTION EIGHT HUNDRED FORTY-TWO-A OF THIS ACT.
S 8. The first undesignated and closing paragraphs of subdivision 3 of section 240 of the domestic relations law, as added by chapter 606 of the laws of 1999, are amended to read as follows:
G. Any party moving for a temporary order of protection pursuant to this subdivision during hours when the court is open shall be entitled to file such motion or pleading containing such prayer for emergency relief on the same day that such person first appears at such court, and a hearing on the motion or portion of the pleading requesting such emer gency relief shall be held on the same day or the next day that the court is in session following the filing of such motion or pleading. H. Upon issuance of an order of protection or temporary order of protection or upon a violation of such order, the court [may] SHALL make [an order] A DETERMINATION REGARDING THE SUSPENSION AND REVOCATION OF A S. 7205 5 LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS in accordance with [section] SECTIONS eight hundred forty-two-a AND EIGHT HUNDRED FORTY-SIX-A of the family court act [directing the surrender offirearms, revoking or suspending a party's firearms license, and/ordirecting that such party be ineligible to receive a firearms license], AS APPLICABLE. Upon issuance of an order of protection pursuant to this section or upon a finding of a violation thereof, the court also may direct payment of restitution in an amount not to exceed ten thousand dollars in accordance with subdivision (e) of section eight hundred forty-one of such act; provided, however, that in no case shall an order of restitution be issued where the court determines that the party against whom the order would be issued has already compensated the injured party or where such compensation is incorporated in a final judgment or settlement of the action.
S 9. Subdivision 9 of section 252 of the domestic relations law, as added by chapter 606 of the laws of 1999, is amended to read as follows:
9. Upon issuance of an order of protection or temporary order of protection or upon a violation of such order, the court [may take anorder] SHALL MAKE A DETERMINATION REGARDING THE SUSPENSION AND REVOCA TION OF A LICENSE TO CARRY, POSSESS, REPAIR OR DISPOSE OF A FIREARM OR FIREARMS, INELIGIBILITY FOR SUCH A LICENSE AND THE SURRENDER OF FIREARMS in accordance with [section] SECTIONS eight hundred forty-two-a AND EIGHT HUNDRED FORTY-SIX-A of the family court act [directing the surren-der of firearms, revoking or suspending a party's firearms license,and/or directing that such party be ineligible to receive a firearmslicense], AS APPLICABLE. Upon issuance of an order of protection pursu ant to this section or upon a finding of a violation thereof, the court also may direct payment of restitution in an amount not to exceed ten thousand dollars in accordance with subdivision (e) of section eight hundred forty-one of such act; provided, however, that in no case shall an order of restitution be issued where the court determines that the party against whom the order would be issued has already compensated the injured party or where such compensation is incorporated in a final [judgement] JUDGMENT or settlement of the action.
S 10. The opening paragraph and paragraph (b) of subdivision 1 of section 530.14 of the criminal procedure law, as added by chapter 644 of the laws of 1996, are amended to read as follows:
[Mandatory and permissive suspension] SUSPENSION of firearms license and ineligibility for such a license upon issuance of temporary order of protection. Whenever a temporary order of protection is issued pursuant to subdivision one of section 530.12 or subdivision one of section 530.13 of this article:
(b) the court [may] SHALL where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person or persons for whose protection the temporary order of protection is issued, suspend any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed.
S 11. The opening paragraph and paragraph (b) of subdivision 2 of section 530.14 of the criminal procedure law, as added by chapter 644 of the laws of 1996, are amended to read as follows:
[Mandatory and permissive revocation] REVOCATION or suspension of firearms license and ineligibility for such a license upon issuance of an order of protection. Whenever an order of protection is issued pursu S. 7205 6 ant to subdivision five of section 530.12 or subdivision four of section 530.13 of this article:
(b) the court [may] SHALL where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued, (i) revoke any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend or continue to suspend any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed.
S 12. The opening paragraph and paragraph (b) of subdivision 3 of section 530.14 of the criminal procedure law, the opening paragraph as amended by chapter 597 of the laws of 1998 and paragraph (b) as added by chapter 644 of the laws of 1996, are amended to read as follows:
[Mandatory and permissive revocation] REVOCATION or suspension of firearms license and ineligibility for such a license upon a finding of a willful failure to obey an order of protection. Whenever a defendant has been found pursuant to subdivision eleven of section 530.12 or subdivision eight of section 530.13 of this article to have willfully failed to obey an order of protection issued by a court of competent jurisdiction in this state or another state, territorial or tribal jurisdiction, in addition to any other remedies available pursuant to subdivision eleven of section 530.12 or subdivision eight of section 530.13 of this article:
(b) the court [may] SHALL where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection was issued, (i) revoke any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immedi ate surrender of any or all firearms owned or possessed.
S 13. This act shall take effect immediately.
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