Domestic Violence & Firearms in New York

New York law does not explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.

Domestic Violence Misdemeanants

New York prohibits persons convicted of specific violent misdemeanors, defined as “serious offenses,” from obtaining a license to purchase or possess a firearm, and requires the revocation of their existing licenses, thereby prohibiting these persons from possessing these weapons.1 These prohibitions also apply to individuals subject to an outstanding warrant of arrest for a serious offense.2 The definition of “serious offenses” includes misdemeanor stalking, child endangerment, and sexual offense convictions.3 It also includes violent and threatening misdemeanors like assault, strangulation, menacing, trespass, and harassment, and attempts to commit the same, when the offender and victim are members of the same family or household.4

New York authorizes courts to prohibit a defendant from purchasing or possessing firearms, and to suspend any existing firearm licenses in a defendant’s name in cases where the defendant is charged with (but not yet convicted of) certain domestic violence misdemeanors. In addition, the court must suspend or revoke defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.5

Any court that is issuing a sentence for domestic violence or another violent crime may also issue an order of protection or temporary order of protection. If the court issues such an order, and the crime is a felony or “serious offense,” the court must revoke any firearm license possessed by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any firearms possessed or owned. In addition, the court must suspend or revoke defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.6

Reporting of Domestic Violence Misdemeanants for Background Checks

Federal law prohibits possession of a firearm by a person convicted of a “misdemeanor crime of domestic violence.” In 2011, New York enacted a law establishing a procedure to be used in trials for certain violent misdemeanors to determine whether the crime qualifies as domestic violence under the federal definition of that term. More specifically, when a defendant has been charged with one of a list of crimes, prosecutors may serve a notice alleging that the defendant and the victim had the requisite domestic relationship.7 Upon conviction, the court must notify the defendant that he or she is entitled to a hearing on that allegation.8 At such a hearing, the prosecution bears 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.9 If the requisite domestic relationship is found, the clerk of the court must send a copy of the written determination in a report of the conviction to the Division of Criminal Justice Services, who then reports the determination to the FBI (which maintains the database used for firearm purchaser background checks).10

Domestic Violence Protective Orders

In certain circumstances, New York prohibits a person subject to a domestic violence protective order or an ex parte domestic violence protective order (the “respondent”) from having a firearms license, and requires the revocation of any existing firearms license in the name of the respondent.11 More specifically, when a domestic violence protective order is issued, the court must revoke a license, order the respondent ineligible for a license and order the immediate surrender of any firearms owned or possessed by respondent, if the court finds that the conduct leading to an order of protection involved:

• Infliction of physical injury;
• The use or threatened use of a deadly weapon; or
• Behavior constituting a violent felony offense.12

When a temporary order of protection is issued to protect a victim during a pending criminal action, or in a family court proceeding prior to a final protective order, a court must suspend a firearm license, order the respondent ineligible for a license and order the immediate surrender of all firearms possessed or owned by the respondent, if the court has good cause to believe that the respondent:

• Has a prior conviction of a violent felony;
• Has previously willfully failed to obey a prior order of protection, and the failure involved the infliction of physical injury, the use or threatened use of a deadly weapon, or behavior constituting any violent felony offense; or
• Has a prior conviction of stalking in the first, second, third or fourth degree.13

In addition, a court issuing a domestic violence protective order or a temporary order of protection or finding that a respondent has willfully failed to obey a domestic violence order of protection must revoke or suspend the respondent’s firearms license, order the respondent ineligible for a future license, and order the immediate surrender of all firearms owned or possessed by the respondent, if the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person(s) for whose protection the order was issued.14

When a respondent is found to have willfully failed to obey a domestic violence order of protection or temporary order of protection, the court must revoke any existing firearms license held by the respondent, order the respondent ineligible for a license, and order the immediate surrender of any or all firearms owned or possessed by the respondent if the failure to obey involved:

• Serious physical injury;
• Use or threatened use of deadly weapons;
• Behavior constituting a violent felony offense; or
• Behavior constituting stalking in the first, second, third or fourth degrees.15

When a Family Court in New York issues an order of protection, temporary order of protection, or when such orders are violated, the court must make a determination regarding the suspension or revocation of a firearms license and the surrender of firearms, in accordance with the above principles.16

For laws governing the procedure for surrender of firearms by a person subject to a protective order, see Disarming Prohibited Persons in New York.

See our Domestic Violence and Firearms policy summary for a comprehensive discussion of this issue.

Notes
  1. N.Y. Penal Law §§ 400.00(1), 265.00(17). ⤴︎
  2. N.Y. Penal Law §400.01. ⤴︎
  3. N.Y. Penal Law § 265.00(17). ⤴︎
  4. See N.Y. Penal Law § 265.00(17); N.Y. Crim. Proc. Law § 530.11 (defining “members of the same family or household”). ⤴︎
  5. N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(b), (2)(b). ⤴︎
  6. N.Y. Crim. Proc. Law §§ 530.14(1)(b), (2)(a); N.Y. Penal Law § 400.00(11). ⤴︎
  7. N.Y. Crim. Proc. Law § 370.15(1). ⤴︎
  8. N.Y. Crim. Proc. Law § 370.15(2). ⤴︎
  9. N.Y. Crim. Proc. Law § 370.15(3). ⤴︎
  10. N.Y. Crim. Proc. Law § 380.97 ⤴︎
  11. N.Y. Fam. Ct. Act § 842-a(1), (2), § 828(1)(a), (3); N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a), (2). See also N.Y. Penal Law § 400.00(1)(e), (11). ⤴︎
  12. N.Y. Fam. Ct. Act § 842-a(2)(a), (3). ⤴︎
  13. N.Y. Crim. Proc. Law §§ 530.12(1), 530.14(1)(a); N.Y. Fam. Ct. Act § 842-a(1). ⤴︎
  14. N.Y. Crim. Proc. Law § 530.14(1)(b), (2)(b), (3)(b); N.Y. Fam. Ct. Act § 842-a(1)(b), (2)(b), (3)(b). ⤴︎
  15. N.Y. Crim. Proc. Law § 530.14(3)(a); N.Y. Fam. Ct. Act §§ 842-a(3)(a), 846-a. ⤴︎
  16. N.Y. Fam. Ct. Act. § 446-a. ⤴︎

Assault Weapons in New York

See our Assault Weapons policy summary for a comprehensive discussion of this issue.

New York’s assault weapon law prohibits manufacturing, transporting, disposing of or possessing an assault weapon in the state.1

An assault weapon is defined as:

• A semi-automatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics:

o A folding or telescoping stock;

o A pistol grip that protrudes conspicuously beneath the action of the weapon;

o A thumbhole stock;

o A second handgrip or a protruding grip that can be held by the non-trigger hand;

o A bayonet mount;

o A flash suppressor, muzzle break, muzzle compensator,  or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator;

o A grenade launcher; or

• A semi-automatic shotgun that has at least one of the following characteristics:

o A folding or telescoping stock;

o A thumbhole stock;

o A second handgrip or a protruding grip that can be held by the non-trigger hand;

o A pistol grip that protrudes conspicuously beneath the action of the weapon;

o A fixed magazine capacity in excess of seven rounds;

o An ability to accept a detachable magazine; or

• A semi-automatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics:

o A folding or telescoping stock;

o A thumbhole stock;

o A second handgrip or a protruding grip that can be held by the non-trigger hand;

o Capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip;

o A threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;

o A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned;

o A manufactured weight of fifty ounces or more when the pistol is unloaded;

o A semi-automatic version of an automatic rifle, shotgun or handgun; or

• A revolving cylinder shotgun;

• A semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or other weapon as defined by New York Penal Law § 265.00(22)(e)(v) as that section read under the laws of 2000 and otherwise lawfully possessed prior to September 14, 1994; or

• A semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol that qualifies as an assault weapon as defined above and possessed prior to January 15, 2013.2

The term “assault weapon” does not include:

• Any rifle, shotgun or pistol that:

o Is manually operated by bolt, pump, lever or slide action;

o Has been rendered permanently inoperable; or

o Is an antique firearm as defined by federal law, 18 U.S.C. § 921(a)(16);

• A semi-automatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition;

• A semi-automatic shotgun that cannot hold more than five rounds of ammunition in a fixed or detachable magazine;

• A rifle, shotgun or pistol, or a replica or a duplicate thereof, specified in Appendix A to 18 U.S.C. § 922 as such weapon was manufactured on October 1, 1993.  The mere fact that a weapon is not listed in Appendix A shall not be construed to mean that such weapon is an assault weapon;

• Any weapon validly registered pursuant to New York Penal law § 400.00(16)(a); or

• Any handgun, rifle, or shotgun that was manufactured at least 50 years prior to the current date, but not including a replica thereof that is validly registered pursuant to N.Y. Penal Law § 400.00(16-a).

Any semiautomatic rifle, semiautomatic shotgun, or semiautomatic pistol qualifying as an assault weapon, as defined above, that was legally possessed prior to January 15, 2013, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapon or to an individual or entity outside the state provided that any such transfer outside of the state must be reported to the entity wherein the weapon is registered within 72 hours of such transfer.  A person who transfers any such weapon to a person inside New York without complying with these requirements is guilty of a Class A misdemeanor.3

An owner of an assault weapon, as defined above, which was possessed before January 15, 2013, must make an application to register the assault weapon with the Superintendent of State Police, in a manner to be prescribed by the Superintendent, or by amending an issued firearms license on or before January 15, 2014.  Registration information must include the registrant’s name, date of birth, gender, race, residential address, social security number, and a description of each weapon being registered.  Registration will not be valid if the registrant is prohibited or becomes prohibited from possessing a firearm pursuant to state or federal law.

The Superintendent must determine whether such registrant is prohibited from possessing a firearm, but such check must be limited to determining whether the factors in 18 U.S.C. § 922(g) apply or whether a registrant has been convicted of a serious offense as defined in New York Penal Code § 265.00(16-b), and whether a report has been issued pursuant to New York Mental Hygiene Law § 9.46, concerning patients that present a serious risk to self or others.

All registrants must recertify to the Division of State Police every five years.  Failure to recertify will result in a revocation of the registration.4

A person who knowingly fails to apply to register an assault weapon on or before January 15, 2014, will be guilty of a Class A misdemeanor.  A person unknowingly failing to register an assault weapon within the time period provided by statute must be given a warning by an appropriate law enforcement authority about this failure and given 30 days in which to apply to register or surrender the weapon.  A failure to do so within 30 days will result in the weapon being declared a nuisance and removed by an appropriate law enforcement authority.5

Educating the Public

The Superintendent of State Police must create and maintain an internet website to educate the public as to which semiautomatic rifle, semiautomatic shotgun, or semiautomatic pistol or other weapons are illegal under these provisions.  The website must contain information to assist the public in recognizing the relevant features proscribed by these provisions, as well the make and model of weapons requiring registration.6

Notes
  1. N.Y. Penal Law §§ 265.02(7), 265.10. ⤴︎
  2. N.Y. Penal Law § 265.00(22)(f). ⤴︎
  3. N.Y. Penal Law § 265.00(22)(h). ⤴︎
  4. N.Y. Penal Law § 265.00(22)(g). ⤴︎
  5. N.Y. Penal Law § 400.00(16-a)(a). ⤴︎
  6. N.Y. Penal Law § 400.00(16-a)(c). ⤴︎

Large Capacity Magazines in New York

New York prohibits the manufacture, transportation, disposal and possession of any large capacity ammunition feeding device, which New York law defines as “a magazine, belt, drum, feed strip, or similar device that: 1) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; 2) contains more than seven rounds of ammunition; or 3) is obtained after January 15, 2013 and has a capacity of, or can be readily restored or converted to accept more than seven rounds of ammunition.”1

New York limits any person to putting seven rounds of ammunition into a magazine, unless the person is at an incorporated firing range or competition recognized by the National Rifle Association or International Handgun Metallic Silhouette Association, in which case the limit is ten rounds.2

The definition of large capacity feeding device does not include “an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition or a feeding device that is a curio or relic.  A feeding device that is a curio or relic” is a device that:  1) was manufactured at least 50 years before January 15, 2013; 2) is only capable of being used exclusively in a firearm that was manufactured at least 50 years prior to January 15, 2013, but not including replicas thereof; 3) is possessed by an individual who is not prohibited by state or federal law from possessing a firearm; and 4) is registered with the Division of State Police pursuant to New York law.3

Grandfathering of Previously Legal Magazines

New York prohibits any person from knowingly possessing a large capacity ammunition feeding device made before September 13, 1994 that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.  Such possession is prohibited even if the person lawfully possessed the device prior to January 15, 2013.  However, someone who has a reasonable belief that these are allowed to possess such a device, but who surrenders his or her device within 30 days of being notified of their illegality is not criminally liable.4

New York also prohibits the  knowing possession of an ammunition feeding device that has a capacity of, or can be readily restored or converted to accept, more than seven but less than ten rounds of ammunition, where such device contains more than seven rounds of ammunition.  Such possession is illegal even if the device was lawfully possessed prior to January 15, 2013.  Thus, it is legal to possess ammunition feeding devices that have the capacity of, or that can be converted to accept, 8-10 rounds, so long as they were lawfully possessed prior to January 15, 2013, and do not actually contain more than seven rounds of ammunition.5

Transfer and Registration

New York law provides that large capacity ammunition magazines lawfully possessed prior to January 15, 2013, may only be transferred to a purchaser in the state who is authorized to possess them, or otherwise may only be transferred outside of the state.  If transferred outside the state, the transfer must be reported to the registration system within 72 hours.  An exception exists, however, that allows an individual to transfer a lawfully possessed pre-ban large capacity magazine within one year of January 15, 2013.  An individual not complying with this provision is criminally liable for a Class A misdemeanor.6

A feeding device that qualifies as a curio or relic may be transferred.  However, the transfer must be processed through a licensed dealer, who must conduct a background check of the transferee.  Curios or relics that are transferred into the state from outside the state must be registered within 30 days.7

Registrations of large capacity ammunition magazines are transferrable.  However, the state must confirm that the transferee is not a prohibited person.  Registrations must be recertified every five years.8

See our Large Capacity Magazines policy summary for a comprehensive discussion of this issue.

Notes
  1. N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.10. ⤴︎
  2. N.Y. Penal Law § 265.20(7-f); see also N.Y. SAFE Act FAQ, available at:  www.governor.ny.gov/2013/gun-reforms-faq. ⤴︎
  3. N.Y. Penal Law § 265.00(23). ⤴︎
  4. N.Y. Penal Law § 265.36. ⤴︎
  5. N.Y. Penal Law § 265.37. ⤴︎
  6. N.Y. Penal Law § 265.00(22)(h). ⤴︎
  7. N.Y. Penal Law § 265.00(23). ⤴︎
  8. N.Y. Penal Law § 400.00(16-a). ⤴︎

Gun Shows in New York

See our Gun Shows policy summary for a comprehensive discussion of this issue.

New York law defines “gun show” as “an event sponsored, whether for profit or not, by an individual, national, state or local organization, association or other entity devoted to the collection, competitive use, sporting use, or any other legal use of firearms, rifles or shotguns.”1 The definition also includes an event at which:

• Twenty percent or more of all exhibitors are firearms exhibitors;
• Ten or more firearms exhibitors are participating;
• Twenty-five or more handguns are offered for sale or transfer; or
• Fifty or more firearms are offered for sale or transfer.

The term “gun show” includes any building, structure or facility where firearms are offered for sale or transfer and any grounds used in connection with the event.2

New York requires all firearms sales at gun shows to be processed by a licensed dealer.3 Prospective purchasers are subject to the same background check process that applies to retail firearm transfers and all dealers processing transactions must record the transfer, retain the transfer records for 10 years, and make the records available to law enforcement (see Retention of Background Check / Sales Records in New York).4 A person is criminally liable for a misdemeanor if he or she offers or agrees to transfer a firearm to another person at a gun show and then deliver the firearm at a location other than the gun show in order to evade compliance with the background check requirement.5

A licensed dealer is permitted to conduct business temporarily at a gun show or event sponsored by any organization devoted to the collection, competitive use or other sporting use of firearms.6 Gun show operators are required to provide access to a licensed firearm dealer at gun shows for the purpose of completing background checks.7

Gun show operators must conspicuously post and maintain signs stating: “A National Instant Criminal Background Check must be completed prior to all firearm sales or transfers, including sales or transfers of rifles or shotguns.”8 Signs must be posted at all entrances to the gun show, at all places where admission tickets to the gun show are sold, and at not less than four additional locations within the grounds of the gun show.9 A gun show operator must notify exhibitors, in writing, that a National Instant Criminal Background Check System (“NICS”) check is required prior to all firearm transfers.10

In Scope, Inc. v. Pataki, 386 F. Supp. 2d 184 (W.D.N.Y. 2005), a group of gun association plaintiffs challenged New York’s gun show statutes on various constitutional grounds, including that they allegedly violate the: 1) due process clause of the Fourteenth Amendment to the U.S. Constitution, because the definition of “gun show” is vague; and 2) First Amendment because the definition of “gun show” is so broad that it declares any assembly of gun owners for any purpose a “gun show,” infringing on plaintiffs’ rights of lawful assembly and free speech and right to petition the government.

On the due process challenge, the court held that the definition of gun show in New York law was not vague.11 The court found that definition of “gun show” is not vague, but as to the First Amendment challenge, the court found the definition to be overbroad in its prohibitions, stating that the law “defines any gathering of a gun club to be a ‘gun show.’”12 Thus, the court found the definition to be unconstitutional.

New York now requires private sellers (sellers who are not federally licensed dealers) to have a background check conducted on a prospective purchaser before transferring any firearm, whether at gun shows or elsewhere.  See the Private Sales in New York section for further information, including additional laws that may apply at gun shows.

Notes
  1. N.Y. Gen. Bus. Law § 895 ⤴︎
  2. Id. ⤴︎
  3. N.Y. Gen. Bus. Law §§ 896 and 897. ⤴︎
  4. N.Y. Gen. Bus. Law §§ 896 and 897. ⤴︎
  5. N.Y. Gen. Bus. Law § 897. ⤴︎
  6. N.Y. Penal Law § 400.00(8). ⤴︎
  7. N.Y. Gen. Bus. Law § 896(1)(c). ⤴︎
  8. N.Y. Gen. Bus. Law § 896(1)(a). ⤴︎
  9. Id. ⤴︎
  10. N.Y. Gen. Bus. Law § 896(1)(b). ⤴︎
  11. Scope, Inc., 386 F. Supp. 2d at 191. ⤴︎
  12. Scope, Inc., 386 F. Supp. 2d at 194-5. ⤴︎

Ohioans for Concealed Carry v. City of Columbus: Defending Local Bump Stock Regulations

Case Information: Ohioans for Concealed Carry et. al. v. City of Columbus et. al., No. 18-AP-00605 (Ohio Ct. App. brief filed Oct. 1, 2018).

At Issue: On October 1st, 2017, a gunman in Las Vegas committed the deadliest mass shooting in modern American history, killing 58 people and wounding an additional 489. A major contributor to the scale of this attack was the gunman’s use of bump stocks. Bump stocks are accessories that, when attached to a semiautomatic rifle, greatly increase the rate of fire possible with that weapon. In May 2018, responding to a series of high-fatality mass shootings, the city of Columbus, Ohio passed an ordinance prohibiting bump stocks. A month later, the ordinance was challenged by Ohioans for Concealed Carry, and a judge ruled that Columbus could not regulate bump stocks because they are firearm components and thus fall within Ohio’s preemption statute. The case is now on appeal before the Ohio Tenth District Court of Appeals.

Giffords Law Center’s Brief: Our brief argues that Columbus acted well within its authority to regulate bump stocks because these dangerous devices are accessories, not firearm components, which means the city’s regulation is not in conflict with state law. We show that bump stocks are consistently referred to as accessories across many authoritative sources, including bump stock manufacturers, the federal government, official statements to regulators, and local and national news articles. Additionally, we argue that the trial court’s definition of “component” was overbroad and erroneous, and that a better definition of “component” can be found in federal law (a definition that clearly would not apply to bump stocks).

Read the full text of our brief in Ohioans for Concealed Carry here.

Libertarian Party v. Cuomo: Defending New York’s Evidence-Backed Gun Safety Laws

Case Information: Libertarian Party of Erie County et al. v. Cuomo et al. (2d Cir. brief filed September 20, 2018).

At Issue:This case is about New York’s authority to address gun violence in its borders by enforcing meaningful standards for the possession and carrying of handguns. Plaintiffs challenge two regulations that help prevent dangerous, irresponsible people from misusing firearms: New York’s law requiring a license to possess a handgun and the standards the state applies to evaluate concealed carry permit applicants.  The district court dismissed both of these Second Amendment claims and the case is now on appeal before the Second Circuit.

Giffords Law Center’s Brief: Our brief argues that New York’s handgun licensing law is constitutional under the Second Amendment because it substantially furthers the state’s interest in preventing gun deaths and stopping the flow of illegal guns. Recent and reliable social science research shows that laws that require a license to purchase or possess handguns bolster public safety by dramatically reducing gun deaths and deterring gun trafficking by criminals. In addition, our brief argues that New York’s concealed carry regulations are constitutional because they are consistent with previous decisions upholding those laws and are supported by compelling social science evidence. 

Read the full text of our amicus brief here.

State Right to Bear Arms in Nevada

The Constitution of the State of Nevada, Article 1, § 11(1) provides that “[e]very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.”

There is little case law interpreting Article 1, § 11(1).

In 1968, the Supreme Court of Nevada held, in a case interpreting the Second Amendment to the United States Constitution, that “the authority to regulate weapons comes from a state’s police powers.”1 However, Hardison predated the 1982 enactment of Article 1, § 11(1).

More recently, in the 2012 case Pohlabel v. State, the Supreme Court of Nevada upheld a felon-in-possession statute against a defendant who argued that the statute violated his right to bear arms under article 1, § 11(1) by barring him from possessing a black powder rifle.2  The court held that the right to bear arms was not unlimited,3 and that barring a convicted felon from possessing firearms is rational because of the increased potential for danger.4  The court further concluded that “unpardoned felons are not included among those to whom the Nevada Constitution guarantees the right to keep and bear arms.”5

Notes
  1. Hardison v. State, 437 P.2d 868, 871 (Nev. 1968) (rejecting a Second Amendment challenge to a state law prohibiting a convicted felon from possessing a concealable firearm). ⤴︎
  2. 268 P.3d 1264 (Nev. 2012). ⤴︎
  3. Id. at 1268 (quoting District of Columbia v. Heller, 554 U.S. 570 (2008). ⤴︎
  4. 268 P.3d at 1268. ⤴︎
  5. Id. at 1272. ⤴︎