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EspañolI have a temporary order of protection against the abuser. Can his/her guns be taken away?
With a temporary order of protection, the judge should take away the abuser’s guns and suspend his/her gun license if any of the following exist:
- the judge finds that 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);
- the abuser has a prior conviction of a violent felony offense;
- the abuser has been convicted in the past of stalking; or
- a judge found that the abuser “willfully” (purposefully) violated an order of protection in the past and, in committing such violation, the abuser caused you serious physical injury; or used or threatened to use a deadly weapon or dangerous instrument; or his/her behavior qualified as a violent felony offense.1
1 NY Family Court Act § 842-a(1)(a), (1)(b)
I have a final order of protection against the abuser. Can his/her guns be taken away?
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:
- 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
- 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)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?
Here are some suggestions of what you can do:
- If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s).
- Ask the judge to check the box on the order of protection form that says the abuser (respondent) must surrender his/her guns and the box that says the respondent’s firearm license is suspended or revoked. If the judge agrees to do so, look to make sure that the box is checked on your order before leaving the courthouse.
If the judge takes away the guns, you may also want to ask the judge to:
- Require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them.
- Explain what will happen to the abuser’s guns (where they will be held).
- Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
- Order that the police notify you when the guns are returned to the abuser.
If the judge orders the abuser's guns to be taken away in my order of protection, how will they be taken away?
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)
