What's happening
This bill sets procedures for returning voluntarily surrendered firearms after an order of protection ends, requiring notice, a hearing, and court approval.
Why it matters
Increases oversight and transparency. by requiring notice to multiple parties—including the district attorney, county attorney, protected party, and firearms licensing officer—when someone seeks to reclaim surrendered firearms, ensuring interested parties can raise concerns about the return.
Adds a formal hearing process. so that firearms cannot be returned automatically; a court must find there is no legal barrier before approving the return, which enhances legal safeguards and due diligence.
Introduces a mandatory waiting period. (at least 90 days, or longer if there is a pending license revocation process) before returning firearms that require a license, giving authorities time to evaluate whether the individual should regain possession.
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Who cares
Headline styles
Clarify Firearm Return Rules
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to codes
- Committed to rules
- Advanced to third reading
- 2nd report cal.
- 1st report cal.1035
- Referred to codes
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5577
2017-2018 Regular Sessions
IN SENATE
April 17, 2017
Introduced by Sen. LANZA -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to procedures for the return of firearms voluntarily surrendered in connection with an order of protection
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraph (b) of subdivision 5 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:
(b) The prompt surrender of one or more firearms pursuant to a court order issued pursuant to this section shall be considered a voluntary surrender for purposes of subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law. The disposition of any such firearms shall be in accordance with the provisions of subdivision six of section 400.05 of the penal law; provided, however, that upon termination of any suspension order issued pursuant to this section or section eight hundred forty-two-a of the family court act, and upon written application of the subject of the order, with notice and opportunity to be heard to the district attorney, the county attorney, the protected party and any licensing officer responsible for issuance of a firearms license to the subject of the order pursuant to article four hundred of the penal law, and upon a written finding that there is no legal impediment to the subject's possession of a surrendered firearm, any court of record exercising criminal jurisdiction may order the return of a firearm not otherwise disposed in accordance with subdivision six of section 400.05 of the penal law. When issuing such order in connection with any firearm subject to a license requirement under article four hundred of the penal law, unless the licensing authority consents to a shorter period, the order must be stayed for ninety days
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09741-01-7
S. 5577 2
or until the conclusion of any license revocation proceeding, whichever is longer.
§ 2. This act shall take effect on the ninetieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the criminal procedure law, in relation to procedures for the return of firearms voluntarily surren- dered in connection with an order of protection
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Advisory Committee on Criminal Law and Procedure.
This measure would amend section 530.14 of the Criminal Procedure Law to provide a procedure for the return of firearms voluntarily surrendered in connection with the issuance of an order of protection after the order of protection has terminated. While a court has the authority to order the surrender of weapons in connection with the issuance of an order of protection (see CPL 530.14; FCA 842-a), there is no statute authorizing a court to order law enforcement to restore the weapons after the reason for the surrender has ended. Law enforcement officials who were ordered by a court to take possession of the weapons are reluc- tant to release the weapons back to the owner unless the owner presents them with another court order authorizing the release. However, under current law, the court that issued the order often has no jurisdiction to order law enforcement to return any weapons surrendered. As a result, the owner is compelled to resort to an Article 78 proceeding in Supreme Court to compel release of the weapons (see Engel v Engel, 24 A.D.3d 548(2d Dept 2005); Aloi v Aloi, 10 A.D.3d 655 (2d Dept 2004)).
Read the full memo (696 words)
The issue is described in the Practice Commentary to the Family Court Act dealing with surrender of weapons:
"... neither Section 842-a nor any other Article 8 section authorizes the Court to order the return of firearms, and the Court consequently lacks jurisdiction to entertain an application; see Blauman v. Blauman, 2 A.D.3d 727, 769 N.Y.S.2d 584 (2d Dept. 2003). The dichotomy is illus- trated in Aloi v. Nassau County Sheriff's Department, N.Y.L.J., 8/3/05, p. 20 (Sup. Ct. Nassau Cty. 2005). Family Court had initially issued a temporary order of protection and a Section 842-a order, but both had been withdrawn as part of a negotiated settlement. In the absence of Family Court jurisdiction, the respondent's only recourse was a new petition in Supreme Court (the Sheriff understandably refused to return the firearms in the absence of a court order), thereby delaying the lawful return of his property, increasing litigation costs and legal fees, and placing an unnecessary burden on the Supreme Court. The appar- ent jurisdictional oversight can be remedied only through legislation.
A similar analysis applies to surrender orders that originate in a local criminal court under CPL 530.14. In contrast, Supreme Court orders of protection may not have such a limitation since a Supreme Court justice appears to have the authority to order return of weapons (see Dudek v Nassau County Sheriff's Dept., 991.F.Supp.2d 402 (E.D.N.Y. 2013).
The current measure amends CPL 530(14) to provide a procedure for a court of record* exercising criminal jurisdiction to order the return of a voluntarily surrendered firearm after the reason for the surrender has ended. Significantly, the measure provides notice and an opportunity to be heard to the district attorney, the county attorney, the protected party and any licensing officer responsible for issuance of a firearms license to the subject of the order. Moreover, to ensure that return of firearms under the authority provided by this measure is not to be required during ongoing license revocation proceedings, the order providing for the return of a voluntarily surrendered firearm must be stayed for the longer of ninety days or until the conclusion of any license revocation proceeding. Notwithstanding this limitation, it is not the purpose or the effect of this measure to inspire or initiate the bringing of such revocation proceedings.
This measure, which would have no fiscal impact on the State, would take effect ninety days after it shall have become a law.
Legislative history
2017: S.5577 - Died on Third Reading Calendar
* Courts of record include all courts of the Unified Court System except for the Town and Village Justice Courts. Judiciary Law § 2.
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