Require Convicts to Surrender Guns

Subdivision 5 provides that the court ordering the surrender of any firearm, rifle, shotgun, black powder rifle, black powder shotgun, muzzle-loading firearm or antique firearm as provided in this section shall immediately notify the duly constituted police authorities of the locality of such action and the division of state police at its office in Albany. The court shall direct the authority receiving such surrendered firearms, rifles, shotguns, black powder rifles, black powder shotguns, muzzle-loading firearms or antique firearms to immediately notify the court of such surrender.

Subdivision 6 provides that the disposition of any firearms, rifles, shotguns, black powder rifles, black powder shotguns, muzzle-loading firearms or antique firearms surrendered pursuant to this section shall be in accordance with section 400.05(6) of the Penal Law. Subdivision 6 further provides that the provisions of this section shall not be deemed to limit, restrict or otherwise impair the authority of the court to order and direct the surrender of any or all firearms, rifles, shotguns, black powder rifles, black powder shotguns, muzzle-loading firearms or antique firearms owned or possessed by a defendant pursuant to any other provision of law.

Section 2 sets forth the effective date.

Justification

Intimate partner homicide is the most frequent type of domestic homicide. In 2013, nearly one-quarter of the victims in all homicides in the state had a domestic relationship with their offenders. October 2014 Criminal Justice Research Report, "Domestic Homicide in New York State 2013," Division of Criminal Justice Services Office of Justice Research & Performance (2014 DCJS Report). More than half of these domestic homicides were committed by intimate partners (13.5%, with 8.91 committed by other family members).

The 2014 DCJS Report also found that statewide, intimate partner homicides and total domestic homicides have increased 16% and 5.1%, respectively, from 2012 to 2013. Outside of New York City, there were 49 intimate partner homicides -- the highest in 5 years (56.3% of a total of 87 intimate partner homicides), with 38 in New York City. Similarly, of the 144 total domestic homicides in 2013, 83 (57.6%) occurred outside New York City -- the highest in 5 years -- and 61 in New York City.

Women continue to account for most of all intimate partner homicides in New York (78.2% in 2013). Of the 130 total homicide victims who were female, age 16 and older, 51.5% were killed by intimate partners. 2014 DCJS Report. In addition, eleven domestic homicide incidents reported in 2013 involved multiple victims, a total of 26, including seven children.

Firearms, which include handguns, rifles, shotguns and other firearms, are the weapons used in one-third of intimate partner homicides, with firearms used in 18.4% of intimate partner homicides in New York City and in 42.9% of intimate partner homicides in the rest of the state. 2014 DCJS Report. Domestic violence often escalates in severity over time and the presence of a firearm increases the likelihood that it will escalate to a homicide. "When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed." See U.S. v. Castleman, 572 U.S. (2014), citing Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003).

In recognition of this stark reality, Congress prohibited, in addition to felons, those individuals convicted of misdemeanor crimes of domestic violence from possessing firearms. 18 U.S.C. § 922(g)(9). We were recently reminded by the Supreme Court that Congress recognized 20 years ago the need to "close (a) dangerous loophole" when it enacted 18 U.S.C. § 922(g) (9). (See Voisine v. U.S. 579 U.S. (2016), citing Castleman, quoting U.S. v. Hayes, 555 U.S. 415,426 (2009).) Although an existing provision at the time already prohibited convicted felons from possessing firearms, domestic violence abusers charged with "run-of-the-mill misdemeanor assault and battery laws" were not barred from possessing guns. In affirming that the federal ban on firearms possession applies to misdemeanor assault convictions for reckless conduct, the Court in Voisine reiterated its view that '(firearms and domestic strife are a potentially deadly combination'. (See Voisine, quoting Hayes.)

A dangerous loophole similarly exists under New York law. Currently, when a person is convicted of a felony or serious offense or an order of protection is issued for victims of family offenses in certain circumstances, the court must revoke any existing license of that person to possess a firearm and order the immediate surrender of any firearms that person owns or possesses. The law does not, however, provide for the surrender of these dangerous weapons that a person owns or possesses upon conviction of a misdemeanor crime of domestic violence even though upon such a conviction, the person would be prohibited under federal law from purchasing or possessing a firearm. To provide that when a person is convicted of a misdemeanor crime of domestic violence he cannot buy or possess a firearm under federal law, but if he already owns firearms and is convicted of a misdemeanor crime of domestic violence he can keep the firearms he owns is a gaping hole in the law that must be closed.

Firearms, rifles, shotguns, antique firearms, black powder rifles, black powder shotguns and muzzle-loading firearms clearly have the ability to inflict or threaten serious injury or cause death. They should be removed from the abuser's possession upon conviction of a misdemeanor crime of domestic violence.

By requiring the surrender of firearms, rifles, shotguns, antique firearms, black powder rifles, black powder shotguns and muzzle-loading firearms of those persons who have been convicted of a misdemeanor crime of domestic violence, we will be better able to protect the safety and welfare of domestic violence victims who we know are at risk of harm at the hands of their abusers.

Legislative history

2017-18: A980 passed assembly - S A.5257, 2015 and 2016 passed Assembly. Similar to A.9515, 2014 referred to Codes.

Fiscal implications

None.

Effective date

Effective immediately and shall apply to convictions on or after such effective date as well as to charges for such offenses pending on such effective date for which sentence had not yet been imposed.