§ 6342 — Issuance of a temporary extreme risk protection order

New York § 6342

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 63-A: Extreme Risk Protection Orders

Text

§ 6342. Issuance of a temporary extreme risk protection order. 1. Upon\napplication of a petitioner pursuant to this article, the court may\nissue a temporary extreme risk protection order, ex parte or otherwise,\nto prohibit the respondent from purchasing, possessing or attempting to\npurchase or possess a firearm, rifle or shotgun, upon a finding that\nthere is probable cause to believe the respondent is likely to engage in\nconduct that would result in serious harm to himself, herself or others,\nas defined in paragraph one or two of subdivision (a) of section 9.39 of\nthe mental hygiene law. Such application for a temporary order shall be\ndetermined in writing on the same day the application is filed.\n 2. In determining whether grounds for a temporary extreme risk\nprotection order exist, the court shall consider any relevant factors\nincluding, but not limited to, the following acts of the respondent:\n (a) a threat or act of violence or use of physical force directed\ntoward self, the petitioner, or another person;\n (b) a violation or alleged violation of an order of protection;\n (c) any pending charge or conviction for an offense involving the use\nof a weapon;\n (d) the reckless use, display or brandishing of a firearm, rifle or\nshotgun;\n (e) any history of a violation of an extreme risk protection order;\n (f) evidence of recent or ongoing abuse of controlled substances or\nalcohol;\n (g) evidence of recent acquisition of a firearm, rifle, shotgun or\nother deadly weapon or dangerous instrument, or any ammunition therefor;\nor\n (h) evidence of recent acts of aggravated cruelty to animals as\ndefined in section three hundred fifty-three-a of the agriculture and\nmarkets law.\n In considering the factors under this subdivision, the court shall\nconsider the time that has elapsed since the occurrence of such act or\nacts and the age of the person at the time of the occurrence of such act\nor acts.\n For the purposes of this subdivision, "recent" means within the six\nmonths prior to the date the petition was filed.\n 3. The application of the petitioner and supporting documentation, if\nany, shall set forth the factual basis for the request and probable\ncause for issuance of a temporary order. The court may conduct an\nexamination under oath of the petitioner and any witness the petitioner\nmay produce.\n 4. A temporary extreme risk protection order, if warranted, shall\nissue in writing, and shall include:\n (a) a statement of the grounds found for the issuance of the order;\n (b) the date and time the order expires;\n (c) the address of the court that issued the order;\n (d) a statement to the respondent: (i) directing that the respondent\nmay not purchase, possess or attempt to purchase or possess a firearm,\nrifle or shotgun while the order is in effect and that any firearm,\nrifle or shotgun possessed by such respondent shall be promptly\nsurrendered to any authorized law enforcement official in the same\nmanner as set forth in subdivision five of section 530.14 of the\ncriminal procedure law;\n (ii) informing the respondent that the court will hold a hearing no\nsooner than three nor more than six business days after service of the\ntemporary order, to determine whether a final extreme risk protection\norder will be issued and the date, time and location of such hearing,\nprovided that the respondent shall be entitled to more than six days\nupon request in order to prepare for the hearing; and (iii) informing\nthe respondent the he or she may seek the advice of an attorney and that\nan attorney should be consulted promptly; and\n (e) a form to be completed and executed by the respondent at the time\nof service of the temporary extreme risk protection order which elicits\na list of all firearms, rifles and shotguns possessed by the respondent\nand the particular location of each firearm, rifle or shotgun listed.\n 5. If the application for a temporary extreme risk protection order is\nnot granted, the court shall notify the petitioner and, unless the\napplication is voluntarily withdrawn by the petitioner, nonetheless\nschedule a hearing on the application for a final extreme risk\nprotection order. Such hearing shall be scheduled to be held promptly,\nbut in any event no later than ten business days after the date on which\nsuch application is served on the respondent, provided, however, that\nthe respondent may request, and the court may grant, additional time to\nallow the respondent to prepare for the hearing. A notice of such\nhearing shall be prepared by the court and shall include the date and\ntime of the hearing, the address of the court, and the subject of the\nhearing.\n 6. (a) The court shall, in the manner specified in paragraph (b) of\nthis subdivision, arrange for prompt service of a copy of the temporary\nextreme risk protection order, if any, the application therefor and, if\nseparately applied for or if a temporary extreme risk protection order\nwas not granted, the application for an extreme risk protection order,\nany notice of hearing prepared by the court, along with any associated\npapers including the petition and any supporting documentation,\nprovided, that the court may redact the address and contact information\nof the petitioner from such application and papers where the court finds\nthat disclosure of such address or other contact information would pose\nan unreasonable risk to the health or safety of the petitioner.\n (b) The court shall provide copies of such documents to the\nappropriate law enforcement agency serving the jurisdiction of the\nrespondent's residence with a direction that such documents be promptly\nserved, at no cost to the petitioner, on the respondent; provided,\nhowever, that the petitioner may voluntarily arrange for service of\ncopies of such order and associated papers through a third party, such\nas a licensed process server.\n 7. (a) The court shall notify the division of state police, any other\nlaw enforcement agency with jurisdiction, all applicable licensing\nofficers, the statewide computerized registry of orders of protection\nand warrants of arrest referred to in section two hundred twenty-one-a\nof the executive law, and the division of criminal justice services of\nthe issuance of a temporary extreme risk protection order and provide a\ncopy of such order no later than the next business day after issuing the\norder to such persons or agencies or registry. The court also shall\npromptly notify such persons and agencies and registry and provide a\ncopy of any order amending or revoking such protection order or\nrestoring the respondent's ability to own or possess firearms, rifles or\nshotguns no later than the next business day after issuing the order to\nrestore such right to the respondent. The court also shall report such\ndemographic data as required by the state division of criminal justice\nservices at the time such order is transmitted thereto. Any notice or\nreport submitted pursuant to this subdivision shall be in an electronic\nformat, in a manner prescribed by the division of criminal justice\nservices.\n (b) Upon receiving notice of the issuance of a temporary extreme risk\nprotection order, the division of criminal justice services shall\nimmediately report the existence of such order to the federal bureau of\ninvestigation to allow the bureau to identify persons prohibited from\npurchasing firearms, rifles or shotguns. The division shall also\nimmediately report to the bureau the expiration of any such protection\norder, any court order amending or revoking such protection order or\nrestoring the respondent's ability to purchase a firearm, rifle or\nshotgun.\n 8. A law enforcement officer serving a temporary extreme risk\nprotection order shall request that the respondent immediately surrender\nto the officer all firearms, rifles and shotguns in the respondent's\npossession and the officer shall conduct any search permitted by law for\nsuch firearms. The law enforcement officer shall take possession of all\nfirearms, rifles and shotguns that are surrendered, that are in plain\nsight, or that are discovered pursuant to a lawful search. As part of\nthe order, the court may also direct a police officer to search for\nfirearms, rifles and shotguns in the respondent's possession in a manner\nconsistent with the procedures of article six hundred ninety of the\ncriminal procedure law.\n 9. Upon issuance of a temporary extreme risk protection order, or upon\nsetting a hearing for a final extreme risk protection order where a\ntemporary order is denied or not requested, the court shall direct the\nlaw enforcement agency having jurisdiction to conduct a background\ninvestigation and report to the court and, subject to any appropriate\nredactions to protect any person, each party regarding whether the\nrespondent:\n (a) has any prior criminal conviction for an offense involving\ndomestic violence, use of a weapon, or other violence;\n (b) has any criminal charge or violation currently pending against him\nor her;\n (c) is currently on parole or probation;\n (d) possesses any registered firearms, rifles or shotguns; and\n (e) has been, or is, subject to any order of protection or has\nviolated or allegedly violated any order of protection.\n