What's happening
This bill creates a process for courts to issue gun violence restraining orders, allowing temporary removal of firearms from individuals deemed dangerous.
Why it matters
Empowers family members and law enforcement to act. The bill allows not only police but also family or household members to petition courts for gun violence restraining orders, broadening who can initiate protective action if someone poses a risk.
Imposes significant due process requirements. Orders can be issued temporarily on an emergency or ex parte (one-sided) basis, but a full hearing with clear and convincing evidence is required for longer-term (one-year) restrictions, balancing urgent intervention and individual rights.
Mandates prompt firearm and ammunition surrender. Individuals subject to an order must immediately surrender all firearms and ammunition, with strict documentation and deadlines for proof of compliance, and law enforcement is tasked with safely retaining or enabling lawful transfer of these items.
Includes accountability and penalties for misuse. Filing a petition with knowingly false information or intent to harass is a misdemeanor, and violating an order (possessing firearms while prohibited) results in criminal penalties and an extended prohibition on gun possession for five additional years.
*Why this matters:**
These provisions aim to prevent potential gun violence before it occurs, address gaps where existing law may not allow timely intervention, and establish checks and balances to protect both public safety and individual rights. The bill also reflects a trend toward "red flag" laws, which are increasingly used in various states to respond proactively to warning signs of violence.
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Who cares
Headline styles
Allow Gun Restraining Orders
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to judiciary
- Referred to judiciary
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Remove Guns From Dangerous Hands
In Assembly Committee · Judiciary · Sponsor Charles Lavine
Full text
10 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
4824
2017-2018 Regular Sessions
IN SENATE
March 2, 2017
Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
AN ACT to amend the family court act, in relation to gun violence restraining orders
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Article 12 of the family court act is renumbered article 13, section 1211 is renumbered section 1311 and a new article 12 is added to read as follows:
ARTICLE 12
GUN VIOLENCE RESTRAINING ORDER
Section 1211. General.
1212. Temporary emergency gun violence restraining order.
1213. Ex parte gun violence restraining order.
1214. Gun violence restraining order issued after notice and
hearing.
1215. Offenses.
§ 1211. General. 1. A gun violence restraining order is an order, in writing, signed by the court, prohibiting and enjoining a named person from having in his or her custody or control, owning, purchasing, possessing, or receiving any firearms or ammunition. This article establishes a civil restraining order process to accomplish that purpose.
2. The office of court administration shall prescribe the form of the petitions and orders and any other documents, and shall promulgate any rules of court, necessary to implement this article.
3. A petition for a gun violence restraining order shall describe the number, types, and locations of any firearms and ammunition presently believed by the petitioner to be possessed or controlled by the subject of the petition.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05908-01-7
S. 4824 2
4. Nothing in this article shall be interpreted to require a law enforcement agency or a law enforcement officer to seek a gun violence restraining order in any case, including, but not limited to, in a case in which the agency or officer concludes, after investigation, that the criteria for issuance of a gun violence restraining order are not satisfied.
5. Prior to a hearing on the issuance, renewal, or termination of an order under section twelve hundred thirteen or twelve hundred fourteen of this article the court shall ensure that a search warrant is conducted and shall keep information obtained from a search conducted pursuant to this section confidential.
6. (a) The court shall notify the division of criminal justice services when a gun violence restraining order has been issued or renewed under this article no later than one court day after issuing or renewing the order.
(b) The court shall notify the division of criminal justice services when a gun violence restraining order has been dissolved or terminated under this article no later than five court days after dissolving or terminating the order. Upon receipt of either a notice of dissolution or a notice of termination of a gun violence restraining order, the division of criminal justice services shall, within fifteen days, document the updated status of any order issued under this article.
(c) The notices required to be submitted to the division of criminal justice services pursuant to this section shall be submitted in an electronic format, in a manner prescribed by the division.
(d) When notifying the division of criminal justice services pursuant to paragraph (a) or (b) of this subdivision, the court shall indicate in the notice whether the person subject to the gun violence restraining order was present in court to be informed of the contents of the order or if the person failed to appear. The person's presence in court shall constitute proof of service of notice of the terms of the order.
(e) (1) Within one business day of service, a law enforcement officer who served a gun violence restraining order shall submit the proof of service directly into the database established under section two hundred twenty-one-a of the executive law, including his or her name and law enforcement agency, and shall transmit the original proof of service form to the issuing court.
(2) Within one business day of receipt of proof of service by a person other than a law enforcement officer, the clerk of the court shall submit the proof of service of a gun violence restraining order directly into the database established under section two hundred twenty-one-a of the executive law, including the name of the person who served the order. If the court is unable to provide this notification to the division of criminal justice services by electronic transmission, the court shall, within one business day of receipt, transmit a copy of the proof of service to a local law enforcement agency. The local law enforcement agency shall submit the proof of service directly into the registry established under section two hundred twenty-one-a of the executive law within one business day of receipt from the court.
7. (a) A person subject to a gun violence restraining order issued pursuant to this article shall not have in his or her custody or control, own, purchase, possess, or receive any firearms or ammunition while that order is in effect.
(b) (1) Upon issuance of a gun violence restraining order issued pursuant to this article, the court shall order the restrained person to surrender to the local law enforcement agency all firearms and ammuni-
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tion in the restrained person's custody or control, or which the restrained person possesses or owns.
(2) The surrender ordered pursuant to subparagraph one of this paragraph shall occur by immediately surrendering all firearms and ammunition in a safe manner, upon request of any law enforcement officer, to the control of the officer, after being served with the restraining order. A law enforcement officer serving a gun violence restraining order that indicates that the restrained person possesses any firearms or ammunition shall request that all firearms and ammunition be immediately surrendered. Alternatively, if no request is made by a law enforcement officer, the surrender shall occur within twenty-four hours of being served with the order, by either surrendering all firearms and ammunition in a safe manner to the control of the local law enforcement agency, or by selling all firearms and ammunition to a licensed gun dealer. The law enforcement officer or licensed gun dealer taking possession of any firearms or ammunition pursuant to this subdivision shall issue a receipt to the person surrendering the firearm or firearms or ammunition or both at the time of surrender. A person ordered to surrender all firearms and ammunition pursuant to this subdivision shall, within forty-eight hours after being served with the order, do both of the following:
(A) File with the court that issued the gun violence restraining order the original receipt showing all firearms and ammunition have been surrendered to a local law enforcement agency or sold to a licensed gun dealer. Failure to timely file a receipt shall constitute a violation of the restraining order.
(B) File a copy of the receipt described in clause (A) of this subparagraph with the law enforcement agency that served the gun violence restraining order. Failure to timely file a copy of the receipt shall constitute a violation of the restraining order.
(c) (1) Any firearms or ammunition surrendered to a law enforcement officer or law enforcement agency pursuant to this section shall be retained by the law enforcement agency until the expiration of any gun violence restraining order that has been issued against the restrained person. Upon expiration of any order, any firearms or ammunition shall be returned to the restrained person.
(2) A restrained person who owns any firearms or ammunition that are in the custody of a law enforcement agency pursuant to this section and who does not wish to have the firearm or firearms or ammunition returned is entitled to sell or transfer title of any firearms or ammunition to a licensed dealer provided that the firearm or firearms or ammunition are otherwise legal to own or possess and the restrained person otherwise has right to title of the firearm or firearms or ammunition.
(d) If a person other than the restrained person claims title to any firearms or ammunition surrendered pursuant to this section, and he or she is determined by the law enforcement agency to be the lawful owner of the firearm or firearms or ammunition, the firearm or firearms or ammunition shall be returned to him or her.
§ 1212. Temporary emergency gun violence restraining order. 1. A temporary emergency gun violence restraining order may be issued on an ex parte basis only if a law enforcement officer asserts, and a judicial officer finds, that there is reasonable cause to believe both of the following:
(a) The subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in
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his or her custody or control, owning, purchasing, possessing, or receiving a firearm; and
(b) A temporary emergency gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate or inappropriate for the circumstances of the subject of the petition.
2. A temporary emergency gun violence restraining order issued pursuant to this section shall prohibit the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition, and shall expire twenty-one days from the date the order is issued.
3. A temporary emergency gun violence restraining order is valid only if it is issued by a judicial officer after making the findings required by subdivision one of this section and pursuant to a specific request by a law enforcement officer.
4. A temporary emergency gun violence restraining order issued under this section shall include all of the following:
(a) A statement of the grounds supporting the issuance of the order.
(b) The date and time the order expires.
(c) The address of the superior court for the county in which the restrained party resides; and
(d) The following statement: "To the restrained person: This order will last until the date and time noted above. You are required to surrender all firearms and ammunition that you own or possess in accordance with Article 12 of the Family Court Act and you may not have in your custody or control, own, purchase, possess, or receive, or attempt to purchase or receive a firearm or ammunition, while this order is in effect. However, a more permanent gun violence restraining order may be obtained from the court. You may seek the advice of an attorney as to any matter connected with the order. The attorney should be consulted promptly so that the attorney may assist you in any matter connected with the order."
5. A law enforcement officer who requests a temporary emergency gun violence restraining order shall do all of the following:
(a) If the order is obtained orally, memorialize the order of the court on the form approved by the office of court administration;
(b) Serve the order on the restrained person, if the restrained person can reasonably be located;
(c) File a copy of the order with the court as soon as practicable after issuance;
(d) Have the order entered into the computer database system for protective orders maintained by the division of criminal justice services.
6. (a) (1) Except as provided in subparagraph two of this paragraph, the petition for a temporary emergency gun violence restraining order shall be obtained by submitting a written petition to the court.
(2) If time and circumstances do not permit the submission of a written petition, a temporary emergency gun violence restraining order may be issued in accordance with the procedures for obtaining an oral search warrant.
(b) The presiding judge of the supreme court of each county shall designate at least one judge, commissioner, or referee who shall be reasonably available to issue temporary emergency gun violence restraining orders when the family court is not in session.
S. 4824 5
§ 1213. Ex parte gun violence restraining order. 1. (a) A family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.
(b) For the purposes of this section, "family member" shall mean a member of the same family or household as defined in section eight hundred twelve of this chapter.
(c) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision two of this section and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true:
(1) The subject of the petition poses a significant danger, in the near future, of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in subdivision two of this section.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the family court act, in relation to gun violence restraining orders
Purpose
This legislation would permit family members and law enforcement officials to seek a gun violence restraining order against an individual perceived to pose a certain level of threat to others and to themselves by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm and/or ammunition.
Summary of provisions
Section 1. Article 12 of the family court act is renumbered to article 13, section 1211 is renumbered section 1311 and a new article 12 is added to include: Section 1212 specifies the process to which a temporary emergency gun violence restraining order is issued as well as its requirements including a statement of grounds, the date and time the order expires, and the address of the superior court for the county in which the restrained party resides.
Read the full memo (607 words)
Section 1213 provides the process for the issuance of an ex parte gun violence restraining order by a court when the subject of the petition poses a significant danger, in the near future, of personal injury to himself, herself or another by having his or her custody or control firearms and/or alternatives have been tried and found ineffective.
Section 1214 describes the issuance of gun violence restraining orders issued after notice and the hearing where the petitioner has the burden of proving by clear and convincing evidence that both the subject of the petition pose a significant danger to himself, herself, or another by having in his or her possession firearms or ammunition, and that less restrictive alternatives have been tried and were inadequate or inappropriate for the circumstance.
Section 1215 concludes that every person who files for a petition knowing the information in the petition to be false or with the intent to harass is guilty of a misdemeanor. Additionally, every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so pursuant to sections 1212, 1213, 1214 of this article is guilty of a misdemeanor and prohibited from having in his or her custody or control a firearm or ammunition for a five year period, to commence upon the expiration of the existing gun violence restraining order.
Justification
Tragic incidents of gun violence have become shockingly prevalent in recent years. Mass shootings in schools, movie theaters, and other public places have attracted national attention and prompted legislators, seeking preventative measures, to alter state, and national firearms laws.
This law gives immediate family members the right to petition the court to issue a gun violence restraining order against an immediate family member once the petitioner is able to prove that alternative actions have been tried and failed and that the petitioned family member's behavior poses a threat to himself, herself, or others by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm and/or ammunition. Before the issuance of a gun violence restraining order the court will examine the evidence provided through witness oaths, petitioner affidavits, and possible patterns of violent acts or violent threats within the past 12 months, in order to effectively issue a gun violence restraining order that would be in effect for one year. This legislation will be an effective mechanism to further prevent violent gun related acts from being committed.
Prior legislative history
2015-2016: Died in committee.
Fiscal implications for state and local governments
To be determined.
Effective date
This act shall take effect on the one hundred twentieth day after it shall have become law.
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