Throughout these gun law pages, we will refer to laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. It is defined under NY state law as a crime that is punishable by a prison sentence of more than one year.¹ However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the courthouse to search the conviction records.

¹ NY Penal Law §10.00(5)

With a final order of protection, the judge is supposed to take away the abuser’s guns and revoke his/her gun license if the judge determines that either of the following are true:

1. there is a “substantial risk” that the abuser may use or threaten to use a gun against you or anyone else on your order of protection, such as your children; or
2. the judge believes that the conduct (acts) which resulted in your getting the order of protection was based upon the abuser:
   • causing you serious physical injury;
   • using or threatening to use a deadly weapon or dangerous instrument; or
   • doing something that would be considered a violent felony offense.¹

Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a final protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun.  Go to the Federal Gun Laws page to get more information.

¹ NY Family Court Act § 842-a(2)(a), (2)(b)

If the abuser’s guns are taken away by the judge when you get an order of protection, the judge should write on the order the date, time, and place where the abuser is supposed to surrender his/her guns. If possible, the judge is also supposed to describe the guns to be turned in. The suspension of the abuser’s gun license will be in effect for as long as the order of protection lasts.¹

The abuser has the option of either giving the guns to a law enforcement agency for the period of time that you have the order of protection or selling them to a licensed firearms dealer.²

If the abuser refuses to surrender the weapons, the judge should order law enforcement to search and seize any firearms the abuser has. The abuser then has the right to a hearing within 14 days from when the order was issued. Notice of the seizure must be given to the domestic violence registry.³

¹ NY Family Court Act 842-a(4), (5)(a)
² NY Penal Law § 400.05(6)
³ NY Family Court Act 842-a(1)(c), (6)(b), (7)

New York state law says that a person cannot have a “rifle or shotgun” if s/he has been convicted of a felony or serious offense.¹ Also, a person cannot have any “firearm” outside of his/her home or place of business if s/he has been convicted of a felony or a class A misdemeanor within the past five years.²

In addition, a person cannot get a license to carry a concealed firearm, if s/he was convicted within the past five years of any of the following:

• assault in the third degree; 
• misdemeanor driving while intoxicated; or
• menacing.³

¹ NY Penal Law § 265.01(4)
² NY Penal Law § 265.02(5)(ii)
³ NY Penal Law § 400.00(1), (2)

New York state law says that the police officer who responds to a report of a family offense may take custody of any gun and/or license to carry that s/he finds regardless of whether an arrest is made. Often the gun is found because the victim or abuser consents to the home being searched, or there is another lawful reason for the police to do a search.

If a gun is taken, then the officer will give the abuser a receipt with information about the gun and information about the process for getting it back. The gun has to be returned within 48 hours unless the abuser is arrested, a protection order is issued that prohibits firearm possession, or it is determined that there is another reason why the abuser cannot have the gun.¹

¹ NY Criminal Procedure Law § 140.10(6)

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).

You can find contact information for sheriff departments in your area on our NY Sheriff Departments page.

You can find ATF field offices in New York on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our NY Advocates and Shelters page.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.¹

¹United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales.

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

In New York, there can be other reasons that make gun possession illegal aside from being the respondent on an order of protection and being a convicted criminal. A person cannot have a gun license unless s/he is:

1. over age 21 - however, someone who was honorably discharged from the Armed Forces can be under 21;
2. is of “good moral character,” which is defined as having the character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others;
3. is not a fugitive from justice;
4. does not have an outstanding arrest warrant for allegedly committing a felony or serious offense;
5. is not an unlawful drug user or addicted to any controlled substance;
6. is not an undocumented immigrant or has not renounced his or her U.S. citizenship;
7. has not been discharged from the Armed Forces under dishonorable conditions;
8. has not been involuntarily committed to a mental health facility by a judge;
9. has not been the subject of a report made pursuant to section 9.46 of the Mental Hygiene Law;
10. has not had his/her gun license revoked or who is not under a suspension or ineligibility order;
11. has successfully completed a firearms safety course and test in counties where this is required and where applicable; and
12. has not had a guardian appointed for him/her based on subnormal intelligence, mental illness, incompetency, incapacity, condition or disease, or that s/he lacks the mental capacity to contract or manage his or her own affairs.¹

In addition, there are other factors that could disqualify someone from getting a license to carry a concealed firearm. See I am a victim of domestic violence and the abuser has a gun. Is that legal? for more information.

Even if the abuser may legally be able to possess a gun, you can still make a plan for your safety. See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. See our NY Advocates and Shelters page to find a local domestic violence organization near you.

For additional information on gun laws in New York, you can go to the Giffords Law Center website.

Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.

¹ NY Penal Law § 400.00(1)