What's happening
This bill expands New York's laws to require the surrender of firearms, rifles, and shotguns by domestic violence offenders and strengthens related reporting and notification procedures.
Why it matters
Broadens the types of misdemeanor convictions that trigger firearm surrender. The bill expands the list of qualifying domestic violence-related misdemeanors (like menacing, harassment, trespass, and more) that require offenders to surrender any firearms, rifles, or shotguns they own or possess, closing gaps that previously allowed some offenders to retain their weapons.
Mandates clear and coordinated notification procedures. Courts are required to promptly notify law enforcement, the State Police, and relevant registries when firearm surrenders, suspensions, or revocations are ordered, ensuring that authorities are aware of individuals barred from possessing firearms due to domestic violence offenses.
Improves due process protections and recordkeeping. Defendants have the right to a hearing on whether their offense qualifies as a domestic violence crime requiring firearm surrender, with written findings and procedures to challenge or stipulate to the relationship. Convictions and relationships are reported to state and federal databases to prevent gun purchases by prohibited individuals.
Standardizes and strengthens firearm return processes. The bill clarifies how and when surrendered firearms, rifles, or shotguns can be returned to defendants if orders are terminated and no legal impediment remains, including notification and involvement of licensing officers, which helps prevent weapons from being returned prematurely or in error.
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Who cares
Headline styles
Take Guns From Abusers
Plain English, a few words. Used as the page title.
Sponsors
Senator · Senate District 7
No co-sponsors yet.
History
- Referred to rules
Full text
9 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
8120
IN SENATE
March 30, 2018
Introduced by Sen. PHILLIPS -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules
AN ACT to amend the penal law, the criminal procedure law and the family court act, in relation to the possession of weapons by domestic violence offenders; and to repeal certain provisions of the criminal procedure law relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivision 17 of section 265.00 of the penal law is amended by adding a new paragraph (c) to read as follows:
(c) any of the following offenses, where the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of the criminal procedure law and as established pursuant to section 370.15 of the criminal procedure law: assault in the third degree; menacing in the third degree; menacing in the second degree; criminal obstruction of breathing or blood circulation; unlawful imprisonment in the second degree; coercion in the second degree; criminal tampering in the third degree; criminal contempt in the second degree; harassment in the first degree; aggravated harassment in the second degree; criminal trespass in the third degree; criminal trespass in the second degree; arson in the fifth degree; or attempt to commit any of the above-listed offenses.
§ 2. Section 370.15 of the criminal procedure law is REPEALED and a new section 370.15 is added to read as follows: § 370.15 Procedure for determining whether certain misdemeanor crimes
are serious offenses under the penal law.
1. When a defendant has been charged with assault in the third degree, menacing in the third degree, menacing in the second degree, criminal obstruction of breathing or blood circulation, unlawful imprisonment in the second degree, coercion in the second degree, criminal tampering in the third degree, criminal contempt in the second degree, harassment in the first degree, aggravated harassment in the second degree, criminal trespass in the third degree, criminal trespass in the second degree,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12054-01-8
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arson in the fifth degree, or attempt to commit any of the above-listed offenses, the people may, at arraignment or no later than forty-five days after arraignment, serve on the defendant and file with the court a notice alleging that the defendant and the person alleged to be the victim of such crime were members of the same family or household as defined in subdivision one of section 530.11 of this chapter.
2. Such notice shall include the name of the person alleged to be the victim of such crime and shall specify the nature of the alleged relationship as set forth in subdivision one of section 530.11 of this chapter. Upon conviction of such offense, the court shall advise the defendant that he or she is entitled to a hearing solely on the allegation contained in the notice and, if necessary, an adjournment of the sentencing proceeding in order to prepare for such hearing, and that if such allegation is sustained, that determination and conviction will be reported to the division of criminal justice services.
3. After having been advised by the court as provided in subdivision two of this section, the defendant may stipulate or admit, orally on the record or in writing, that he or she is related or situated to the victim of such crime in the manner described in subdivision one of this section. In such case, such relationship shall be deemed established. If the defendant denies that he or she is related or situated to the victim of the crime as alleged in the notice served by the people, or stands mute with respect to such allegation, then the people shall bear the burden to prove beyond a reasonable doubt that the defendant is related or situated to the victim in the manner alleged in the notice. The court may consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of the allegation. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established beyond a reasonable doubt and shall not be relitigated. At the conclusion of the hearing, or upon such a stipulation or admission, as applicable, the court shall make a specific written determination with respect to such allegation.
§ 3. Section 380.97 of the criminal procedure law is REPEALED and a new section 380.97 is added to read as follows: § 380.97 Notification to division of criminal justice services of
certain misdemeanor convictions.
Upon judgment of conviction of assault in the third degree, menacing in the third degree, menacing in the second degree, criminal obstruction of breathing or blood circulation, unlawful imprisonment in the second degree, coercion in the second degree, criminal tampering in the third degree, criminal contempt in the second degree, harassment in the first degree, or aggravated harassment in the second degree, criminal trespass in the third degree, criminal trespass in the second degree, arson in the fifth degree, or attempt to commit any of the above-listed offenses, when the defendant and victim have been determined, pursuant to section 370.15 of this part, to be members of the same family or household as defined in subdivision one of section 530.11 of this chapter, the clerk of the court shall include notification and a copy of the written determination in a report of such conviction to the division of criminal justice services to enable the division to report such determination to the Federal Bureau of Investigation and assist the bureau in identifying persons prohibited from purchasing and possessing a firearm or other weapon due to conviction of an offense specified in paragraph c of subdivision seventeen of section 265.00 of the penal law.
§ 4. Section 530.14 of the criminal procedure law, as added by chapter 644 of the laws of 1996, the opening paragraph of subdivision 1, para-
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graph (b) of subdivision 1, the opening paragraph of subdivision 2, paragraph (b) of subdivision 2, the opening paragraph of subdivision 3 and paragraph (b) of subdivision 3 as amended by chapter 1 of the laws of 2013, paragraph (a) of subdivision 1 as amended by chapter 434 of the laws of 2000, clause (A) of subparagraph (ii) of paragraph (a) of subdivision 1 and subparagraph (i) of paragraph (a) of subdivision 3 as amended by chapter 198 of the laws of 2007, and paragraph (a) of subdivision 3 as amended by chapter 635 of the laws of 1999, is amended to read as follows: § 530.14 Suspension and revocation of a license to carry, possess,
repair or dispose of a firearm or firearms pursuant to
section 400.00 of the penal law and ineligibility for such a
license; order to surrender firearms.
1. Suspension of firearms license and ineligibility 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:
(a) the court shall 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, rifles and shotguns owned or possessed where the court receives information that gives the court good cause to believe that (i) the defendant has a prior conviction of any violent felony offense as defined in section 70.02 of the penal law; (ii) the defendant has previously been found to have willfully failed to obey a prior order of protection and such willful failure involved (A) the infliction of physical injury, as defined in subdivision nine 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 defendant 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 shall where the court finds a substantial risk that the defendant may use or threaten to use a firearm, rifle or shotgun 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 pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law, of any or all firearms, rifles and shotguns owned or possessed.
2. 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, rifles and shotguns owned or possessed where such action is required by section 400.00 of the penal law; and
(b) the court shall where the court finds a substantial risk that the defendant may use or threaten to use a firearm, rifles or shotguns
S. 8120 4
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, rifles and shotguns 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 pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law, of any or all firearms, rifles and shotguns owned or possessed.
3. 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 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, rifles and shotguns owned or possessed where the willful failure to obey such order involved (i) the infliction of physical injury, as defined in subdivision nine 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 thirteen of section 10.00 of the penal law, (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 stalking in the fourth degree as defined in section 120.45 of such law; and
(b) the court shall where the court finds a substantial risk that the defendant may use or threaten to use a firearm, rifle or shotgun 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 pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law, of any or all firearms, rifles and shotguns 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 immediate surrender pursuant to subparagraph (f) of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law, of any or all firearms, rifles and shotguns owned or possessed.
4. Suspension. Any suspension order issued pursuant to this section shall remain in effect for the duration of the temporary order of protection or order of protection, unless modified or vacated by the court.
5. Surrender. (a) Where an order to surrender one or more firearms, rifles and shotguns has been issued, the temporary order of protection or order of protection shall specify the place where such [firearms] weapons shall be surrendered, shall specify a date and time by which the
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surrender shall be completed and, to the extent possible, shall describe such [firearms] weapons to be surrendered, and shall direct the authority receiving such surrendered [firearms] weapons to immediately notify the court of such surrender.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, the criminal procedure law and the family court act, in relation to the possession of weapons by domestic violence offenders; and to repeal certain provisions of the criminal procedure law relating thereto
Purpose of the bill
The purpose of this bill is to ensure that domestic violence offenders do not have access to firearms.
Summary of provisions
Section 1 of the bill would amend the penal law to include additional offenses, the conviction of which results in the loss of ability to possess a firearm.
Read the full memo (614 words)
Section 2 of the bill would amend the penal law to establish a procedure for determining whether certain misdemeanor crimes are serious offenses under the penal law.
Section 3 of the bill would amend the penal law to establish that notification be made to the Division of Criminal Justice Services upon conviction of certain misdemeanor offenses.
Section 4 of the bill would make conforming changes to the criminal procedure law to align with existing federal law. Further this section would amend the criminal procedure law to provide a process for the return of firearms upon the termination of a matter in a defendant's favor.
Section 5 of the bill would make conforming changes to the family court act to align with existing federal law.
Section 6 of the bill would amend the penal law to prohibit a licensing authority from issuing a new permit or renewing a permit for an individ- ual with an outstanding felony or serious arrest warrant.
Section 7 of the bill would establish a procedure for the surrender of firearms, rifles and shotguns upon a judgement of conviction of a felony or serious offense.
Section 8 of the bill provides for the effective date.
Statement in support
Under Governor Cuomo's leadership, New York has passed the strongest gun control laws in the nation. However, New York does not have sufficient laws in place that ensure the removal of all types of firearms from individuals involved in domestic violence-an issue we know is closely tied to gun violence and gun violence deaths. In nine of the ten deadli- est mass shootings in United States history, including Las Vegas and Sutherland Springs, the shooter had an existing record of committing violence against women, threatening violence against women, or harassing or disparaging women. In addition, when an abusive partner is permitted to access firearms, the risk that the other partner will be killed increases fivefold. In 2016, firearms were used in 25 domestic homicides in New York.
New York law prohibits the possession of firearms for individuals convicted of felony or "serious" offenses. However, this excludes certain misdemeanor offenses involving domestic violence. To ensure that all domestic violence offenders are held to the same standard, the bill will include additional domestic violence misdemeanors on the list of prohibited offenses.
Further, the bill would require long guns to be surrendered to law enforcement upon a finding by the court in matters involving orders of protection and in cases where there is a conviction of a serious offense. Currently, New York State requires surrender of hand guns for either (1) an order of protection issued by a judge or (2) a firearm license suspension/revocation due to a felony or "serious" offense conviction or a mental health disqualification by a health professional. However, this surrender does not always apply to long guns, such as rifles and shotguns. To correct this loophole, this bill would apply the same surrender procedures to long guns.
Budget implications
There is no fiscal connected to this bill.
Effective date
This act shall take effect 60 days after it shall become law.
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