This bill has been amended

Bill S7142-2009

Relates to the suspension and revocation of firearms licenses upon the issuance of orders of protection

Relates to the suspension and revocation of firearms licenses upon the issuance of orders of protection.

Details

Actions

  • Apr 12, 2010: ADVANCED TO THIRD READING
  • Apr 8, 2010: 2ND REPORT CAL.
  • Apr 7, 2010: 1ST REPORT CAL.337
  • Mar 16, 2010: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Apr 7, 2010
Ayes (10): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Flanagan
Ayes W/R (3): Saland, DeFrancisco, Bonacic
Nays (3): Volker, Golden, Lanza

Memo

 BILL NUMBER:  S7142

TITLE OF BILL : An act to amend the criminal procedure law and the family court act, in relation to the mandatory suspension and revocation of firearms licenses upon issuance of orders of protection

PURPOSE OR GENERAL IDEA OF BILL : This bill closes a dangerous loophole in the CPL and Family Court Act provisions governing the immediate surrender of firearms, and the immediate revocation or suspension of firearm licenses, in both criminal and Family Court cases where an order of protection is issued.

SUMMARY OF SPECIFIC PROVISIONS : Section 1 amends CPL 530.14(1) to require a court issuing a temporary order of protection in a criminal case to order the immediate surrender of all firearms owned or possessed by the person against whom the order of protection is issued (and the suspension of any existing firearm license) 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. Under current CPL 530.14(1), the court, notwithstanding this "substantial risk" determination, retains complete discretion NOT to order the surrender of firearms or the suspension of the gun license.

Sections 2 and 3 amend CPL §530.14(2) and (3), respectively, to make corresponding changes to the existing firearm surrender and gun license suspension/revocation provisions in criminal cases where, upon conviction, a final order of protection is issued and in cases where the defendant has been found to have willfully violated a pending order of protection.

Sections 4, 5 and 6 amend subdivisions (1), (2) and (3), respectively, of Family Court Act section 842-a to make corresponding changes to the existing firearm surrender and gun license suspension/revocation provisions applicable to Family Court proceedings where a temporary or final order of protection is issued, and in Family Court cases where the respondent has been found to have willfully violated a pending order of protection.

Sections 4, 5 and 6, as well as section 7, also replace the term "serious physical injury" with "physical injury" in separate but related firearm surrender provisions of Family Court Act sections 842-a and 846-a, thereby conforming these provisions to the corresponding firearm surrender provisions of the CPL.

Section 8 contains the effective date.

EXISTING LAW : Both the CPL and Family Court Act currently require a court issuing an order of protection to order the immediate surrender of all firearms owned or possessed by the defendant or respondent, and the immediate suspension or revocation of any existing firearm license, but only where certain statutory criteria are met (e.g., the defendant or respondent has a prior conviction for any violent felony offense, or the order of protection is a final order issued upon conviction for a felony offense or a non-felony "serious offense" as defined in Penal Law section 400.00(11)). Where these "mandatory surrender" criteria are not satisfied, the court may, but need not, order the immediate surrender of firearms where it 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.

JUSTIFICATION : Guns and domestic violence are a lethal combination, killing on average, three women every day. The presence of a gun greatly increases the chances that a domestic violence incident will end with a homicide. A woman is three times more likely to be murdered by a gun used by her husband or intimate partner, than killed by a stranger's guns, knives, or other weapons combined. A study of female domestic homicides found that the presence of guns in the home made a woman 7.2 times more likely to be the victim of a domestic homicide. It is self-evident that firearms must not remain in the hands of those who present a "substantial risk" that they may use a firearm to harm the very person for whose benefit an order of protection is issued. By eliminating the discretion criminal and Family Courts in these cases now have to allow an individual who is the subject of an order of protection and has been found to pose a "substantial risk" to the protected party to continue to possess firearms, this bill will help to ensure that surviving victims of domestic violence and other crimes receive the maximum protection the law can provide.

PRIOR LEGISLATIVE HISTORY : This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : None.

EFFECTIVE DATE : This act shall take effect immediately.

Text

STATE OF NEW YORK ________________________________________________________________________ 7142 IN SENATE March 16, 2010 ___________
Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law and the family court act, in relation to the mandatory suspension and revocation of firearms licenses upon issuance of orders of protection THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. 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 of firearms license and ineligi- bility 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 2. Subdivision 2 of section 530.14 of the criminal procedure law, as added by chapter 644 of the laws of 1996, is amended to read as follows: 2. Mandatory [and permissive] 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 pursuant to subdivision five of section 530.12 or subdivision four of section 530.13 of this article: (a) the court shall 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 where such action is required by section 400.00 of the penal law; and
(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 3. 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 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 arti- cle: (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 4. Subdivision 1 of section 842-a of the family court act, as added by chapter 644 of the laws of 1996 and paragraph (a) as amended by chap- ter 434 of the laws of 2000, is amended to read as follows: 1. Mandatory [and permissive] suspension of firearms license and inel- igibility 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: (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 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 (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. S 5. Subdivision 2 of section 842-a of the family court act, as added by chapter 644 of the laws of 1996, is amended to read as follows: 2. Mandatory [and permissive] 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: (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 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 thir- teen 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. S 6. Subdivision 3 of section 842-a of the family court act, as added by chapter 644 of the laws of 1996, the opening paragraph as amended by chapter 597 of the laws of 1998 and paragraph (a) as amended by chapter 635 of the laws of 1999, is amended to read as follows: 3. Mandatory [and permissive] 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 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 issued by this court or an order of protection issued by a court of competent jurisdic- tion 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 of section 10.00 of the penal law, (ii) the use or threatened use of a deadly weap- on 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 stalk- ing 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 7. 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 issued by a court of competent juris- diction of another state, territorial or tribal jurisdiction in a proceeding 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 to add reasonable conditions of behavior to the existing order of protection, 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 arti- cle 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 respondent to jail for a term not to exceed six months. Such commitment may be served upon certain speci- fied 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 constitut- ing the crimes of menacing, reckless endangerment, 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] SHALL also immediately revoke such license and [may] SHALL 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 of section 10.00 of the penal law or the use or threat- ened 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 mandatory, pursuant to subdivision eleven of section 400.00 of the penal law. S 8. This act shall take effect immediately.

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