Criminal Justice

Overview of the Issue

Removal of Firearms - An Overview

Recent New York State and federal legislation have been enacted to address the issue of access to firearms within the context of domestic violence. These statutes reflect the increasing recognition that firearms present a serious threat to the safety of domestic violence victims, and access to these firearms by batterers should be prohibited. At the core of these statutes is the notion that access should be denied where the use or attempted use of physical force or the threatened use of a deadly weapon is a factor in the issuance of an order of protection, or when the batterer has been arrested or convicted of certain offenses.

In 1996, the New York State Legislature amended the Penal Law, Criminal Procedure Law and Family Court Act to allow for permissive and mandatory (depending on the circumstances of the case) suspension or revocation of a license for a firearm. The underlying rationale for the amendments is that the court hearing the matter is in the best position to evaluate the facts and circumstances, and make a prompt determination whether to suspend or revoke a license.

Criminal Procedure Law §530.14 and Family Court Act §842-a operate together with Penal Law §400.00 et seq., the primary licensing statute, to grant a criminal or family court the power to immediately suspend or revoke, under certain circumstances, a firearms license when a temporary or final order of protection is issued pursuant to C.P.L. §530.12 (protection for victims of family offenses) and C.P.L. §530.13 (protection for victims of crimes, other than family offenses) and F.C.A. §828 and §841 (family offense proceedings).

In 1994 and 1996 the United States Congress amended the Gun Control Act of 1968 when it enacted 18 U.S.C. 922(g)(8)&(9) respectively, which prohibit the sale or possession of a firearm to persons who, under certain circumstances, are the subject of a state court order of protection, or who have been convicted of a misdemeanor crime of domestic violence. These statutes provide for a strict liability provision notwithstanding any state statute to the contrary.