Establishes procedures for issuance of gun violence restraining orders and gun seizure warrants

Proposed criminal procedure law article 735.10 defines these warrants and restraining orders.

Proposed criminal procedure law article 735.20 permits any person to submit an application to the court setting forth the facts and circumstances necessitating the issuance of a gun violence restraining order. Such an order shall be issued if an applicant's signed, sworn affidavit and supporting materials demonstrate that the subject of the application poses a significant risk of personal injury to himself, herself or others by possessing or having access to a firearm, rifle, shotgun, and any ammunition.

In making such a determination, the judge may examine the person seeking the order and any witnesses the applicant produces. The judge shall consider any recent threats or acts of violence, a recent violation of a restraining order, a conviction for any weapons offense, the subject's reckless use or brandishing of a firearm, rifle, or shotgun; the history of actual, attempted, or threatened use of physical force against others; prior arrests; history of any restraining order violations; recent controlled-substance or alcohol abuse; or, recent acquisition of guns or other deadly weapons.

If the judge is satisfied that there is probable cause to believe the veracity of the application, the judge shall issue a gun violence restraining order on the same day the application is submitted, which shall include the grounds asserted for the order, the date the order expires, the address of the Supreme Court in the county where the restrained person resides, and a statement delineating the parameters of the order, the entitlement of the restrained person to request one hearing challenging the order, and his or her right to an attorney. A form must be completed by the restrained person at the time of service listing all firearms, rifles, or shotguns in his or her possession or control. The law enforcement officer serving this order shall provide the person with a form to request a hearing to review the grounds upon which the order and warrant is based.

Proposed criminal procedure law article 73530 provides that if there is probable cause to believe that the subject of a gun violence restraining order possesses or owns a firearm, rifle, shotgun, or any ammunition, the judge shall issue a warrant directing law enforcement to seize and retain any specified firearm, rifle, shotgun, or any ammunition. An affidavit must describe the relevant facts and circumstances and list any firearm, rifle, shotgun, or any ammunition to be seized with reasonable specificity.

When law enforcement takes property pursuant to the warrant, the officer must provide a receipt, specifying the property in detail. The subject firearm, rifle, shotgun, or ammunition shall not be seized if the location to be searched is jointly occupied and a firearm, rifle, shotgun, or any ammunition located therein is owned by someone other than the restrained person, so long as it is stored in a manner that prevents access to the restrained person, and the firearm, rifle, shotgun, or ammunition is lawfully possessed by the owner. A gun safe belonging to someone other than the restrained person shall not be searched absent the owner's consent, or an independent search warrant. If any other person claims title to a seized firearm, rifle, shotgun, or ammunition it must be returned to its lawful owner.

Proposed criminal procedure law article 735.40 preserves and protects the rights of the restrained party by requiring a hearing to be held by the issuing court no later than twenty-one days after the execution of the order and warrant, during which the state has the burden of proving by clear and convincing evidence that the person poses a significant risk of personal injury to himself, herself or others by owning or possessing firearms, rifles, shotguns or any ammunition.

If the state meets its burden, the order shall continue in effect and any firearm, rifle, shotgun, or ammunition seized shall be retained for the duration of the order, or until ownership is transferred to a licensed gun dealer. If the state fails to meet its burden, any firearm, rifle, shotgun, or ammunition seized pursuant to the warrant shall be returned and the order lifted. The court must notify DOS electronically within 24 hours of any gun violence restraining order or contrary order to restore the person's right to own or possess, or attempt to purchase or receive, any lawful firearm, rifle, shotgun, or ammunition. The restrained party may submit one written request during the effective period of the order for a hearing challenging its basis.

Proposed criminal procedure law article 735.50 provides for the renewal of a gun violence restraining order, where a law enforcement agency has probable cause to believe that the subject of an order continues to pose a significant risk of personal injury to himself, herself, or others by purchasing, owning, possessing, or controlling a firearm, rifle, shotgun, or any ammunition. In that case, the agency may request renewal of the order by providing the circumstances necessitating the request. Upon the same basis, at any time within sixty days prior to the order, a judge may renew a gun violence restraining order sua sponte, or upon request of another person. In either case, the Supreme Court shall hold a hearing to determine whether or not to renew the prior order, wherein the restrained person is entitled to notice and an opportunity to be heard.

Proposed criminal procedure law article 735.60 provides that any individual who knowingly violates a gun violence restraining order is guilty of a class A misdemeanor pursuant to § 265.01 of the penal law, and shall be prohibited from purchasing, owning, possessing, controlling, or attempting to purchase or receive a firearm, rifle, or shotgun and any ammunition for a five-year period, to commence upon the expiration of the existing gun violence restraining order.

Section two of the bill amends section 265.01 of the penal law by adding a new subdivision nine, providing that a person who violates a court order prohibiting their purchasing, owning, possessing, or controlling a firearm, rifle, shotgun, or any ammunition for one year, per criminal procedure law section 735.40 as proposed herein, shall be

guilty of criminal possession of a weapon in the fourth degree, a class A misdemeanor.

Section three of the bill sets forth the effective date.

Justification

In the United States, there have been at least 133 mass shootings between January 2009 and July 2015 including the 2012 Aurora movie theater shooting in Colorado that resulted in 12 casualties and 58 injured, the 2012 Sandy Hook school-shooting in Connecticut that resulted in 28 casualties, and the Isla Vista mass shooting on the University of California Santa Barbara Campus in May, 2014 that resulted in 7 casualties.

In many of these incidents, persons close to the shooter report that,prior to the shootings, the shooter exhibited behavioral changes and disclosed evidence of a homicidal intent.

After the Aurora, Colorado mass shooting, the New York Times reported that "interviews with more than a dozen people who knew or had contact with Mr. Holmes in the months before the attack paint a disturbing portrait of a young man struggling with a severe mental illness who more than once hinted to others that he was losing his footing." Most notably, five weeks prior to the shooting, the suspect's University of Colorado psychiatrist alerted campus police, per her requirement to report, because she believed him to be a potential danger to the public due to homicidal statements the suspect had made. The suspect had stopped attending his sessions with the psychiatrist and had begun threatening her via text message and email. Contemporaneously, the former student failed his graduate oral board exams.

A few months prior to the shooting, packages began arriving at his apartment and at the school, containing thousands of rounds of ammunition bought online. In the six weeks prior to the shooting, the suspect legally purchased an S&W .233 high powered semi-automatic rifle (similar to an AR-15), two .40 caliber Glock pistols, and a Remington 870 shotgun at three Colorado gun stores. During this period, the suspect told a fellow student that he wanted to kill people when his life was over, and he showed another student a Glock semiautomatic pistol. Just two weeks prior to the attack, he asked a friend via text if she had heard of "dysphoric mania" a form of bipolar disorder, adding that she should stay away from him because he was "bad news." The stores where the firearms were sold each report that their personnel fully followed all federal requirements. Moreover, nothing that the suspect disclosed to the therapist rose to the threshold in Colorado for hospitalizing an individual involuntarily, and the suspect had no prior criminal record.

In 2014 in Isla Vista, California, a 22-year old student at the Univer-sity of California Santa Barbara made numerous online videos in which he made clear homicidal threats. It was reported that after the student turned 18, he started rejecting mental health care that his family provided, and became increasingly isolated. The student was prescribed psychotropic drugs but declined to take them. During the summer of 2013, the student reportedly exhibited violence toward women at a party, before others intervened. Thereafter, the student began buying semiautomatic handguns. When the student posted online videos and social media posts about suicide and homicide that worried his mother, she contacted mental health officials. In response, police visited his house only weeks before the shooting, but determined that he was polite, had not committed any crime, and did not meet the criteria for involuntary confinement. The police lacked authority to remove the student's firearms. Thereafter, according to the student's writings, he kept one of his guns and some loaded magazines near him so if police came back to his apartment, he would try to shoot them and escape. On May 23, 2014, the student went on a killing spree using a knife and the firearms he had legally purchased, leaving 7 people dead and others wounded. The student, who had apparently taken his own life, was found with three semiautomatic handguns (a Glock 34 and two Sig Sauer P226s) and more than 400 rounds of ammunition.

Authorities and gun experts believe that the suspect abided by California's background check system and waiting periods, and that there was nothing in the suspect's known history that could have prevented him from making legal gun purchases. The suspect had no criminal history, had not been ordered to submit to involuntary mental health treatment, and did not have a history of addiction.

In these mass killings and many others, the perpetrators demonstrated mental instability, and persons close to them, including family members and mental health professionals, expressed concern that they presented a threat of harm to either themselves or others. Under current law, in many instances, society lacks the authority to prohibit mentally unstable, dangerous individuals from purchasing firearms, rifles, or shotguns, and any ammunition, and law enforcement lacks a way of obtaining judicial authorization to remove guns from such an individual. This legislation provides a new avenue that can help prevent future mass shootings and senseless deaths from occurring, while providing judicial safeguards and clear evidentiary burdens to protect the rights of those who might be affected.

This bill would authorize a court to issue a gun violence restraining order, applicable for one year and renewable after that, when the court finds grounds to believe that someone poses a significant risk of personal injury to himself, herself, or others by possessing a firearm, rifle, or shotgun, and any ammunition. If the subject of a restraining order possesses or owns a firearm, rifle, or shotgun, the judge would also issue a warrant to law enforcement, directing them to seize and retain any specified firearm, rifle, or shotgun, and any ammunition subject to the order. The restrained party would have the right to a hearing within 14 days,at which the state would have the burden of proving by clear and convincing evidence that the restrained party poses a significant risk of personal injury to him- or herself or others by owning or possessing firearms, rifles, or shotguns. If the state meets its burden, the order would continue and any guns seized would be retained for a period of one year, subject to renewal of the order and a fresh hearing. If the state fails to meet its burden, the firearms, rifles, or shotguns and any ammunition seized would be returned and the order lifted.

This legislation creates a proactive method by which concerned family members, close friends, and medical professionals may intervene to prevent a potentially dangerous person from committing gun violence. Judicial oversight assures due process while, upon probable cause, court-authorized law enforcement officers may take action to ensure the safety of dangerous individuals and their communities.

Prior legislative history

New bill.

Fiscal implications

To be determined.

Effective date

This act shall take effect immediately.