§ 6343 — Issuance of a final extreme risk protection order

New York § 6343

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

Text

§ 6343. Issuance of a final extreme risk protection order. 1. In\naccordance with this article, no sooner than three business days nor\nlater than six business days after service of a temporary extreme risk\nprotection order and, alternatively, no later than ten business days\nafter service of an application under this article where no temporary\nextreme risk protection order has been issued, the supreme court shall\nhold a hearing to determine whether to issue a final extreme risk\nprotection order and, when applicable, whether a firearm, rifle or\nshotgun surrendered by, or removed from, the respondent should be\nreturned to the respondent. The respondent shall be entitled to more\nthan six business days if a temporary extreme risk protection order has\nbeen issued and the respondent requests a reasonable period of\nadditional time to prepare for the hearing. Where no temporary order has\nbeen issued, the respondent may request, and the court may grant,\nadditional time beyond the ten days to allow the respondent to prepare\nfor the hearing.\n 2. At the hearing pursuant to subdivision one of this section, the\npetitioner shall have the burden of proving, by clear and convincing\nevidence, that the respondent is likely to engage in conduct that would\nresult in serious harm to himself, herself or others, as defined in\nparagraph one or two of subdivision (a) of section 9.39 of the mental\nhygiene law. The court may consider the petition and any evidence\nsubmitted by the petitioner, any evidence submitted by the respondent,\nany testimony presented, and the report of the relevant law enforcement\nagency submitted pursuant to subdivision nine of section sixty-three\nhundred forty-two of this article. The court shall also consider the\nfactors set forth in subdivision two of section sixty-three hundred\nforty-two of this article.\n 3. (a) After the hearing pursuant to subdivision one of this section,\nthe court shall issue a written order granting or denying the extreme\nrisk protection order and setting forth the reasons for such\ndetermination. If the extreme risk protection order is granted, the\ncourt shall direct service of such order in the manner and in accordance\nwith the protections for the petitioner set forth in subdivision six of\nsection sixty-three hundred forty-two of this article.\n (b) Upon issuance of an extreme risk protection order: (i) any\nfirearm, rifle or shotgun removed pursuant to a temporary extreme risk\nprotection order or such extreme risk protection order shall be retained\nby the law enforcement agency having jurisdiction for the duration of\nthe order, unless ownership of the firearm, rifle or shotgun is legally\ntransferred by the respondent to another individual permitted by law to\nown and possess such firearm, rifle or shotgun; (ii) the supreme court\nshall temporarily suspend any existing firearm license possessed by the\nrespondent and order the respondent temporarily ineligible for such a\nlicense; (iii) the respondent shall be prohibited from purchasing or\npossessing, or attempting to purchase or possess, a firearm, rifle or\nshotgun; and (iv) the court shall direct the respondent to surrender any\nfirearm, rifle or shotgun in his or her possession in the same manner as\nset forth in subdivision five of section 530.14 of the criminal\nprocedure law.\n (c) An extreme risk protection order issued in accordance with this\nsection shall extend, as specified by the court, for a period of up to\none year from the date of the issuance of such order; provided, however,\nthat if such order was immediately preceded by the issuance of a\ntemporary extreme risk protection order, then the duration of the\nextreme risk protection order shall be measured from the date of\nissuance of such temporary extreme risk protection order.\n (d) A law enforcement officer serving a final extreme risk protection\norder shall request that the respondent immediately surrender to the\nofficer all firearms, rifles and shotguns in the respondent's possession\nand the officer shall conduct any search permitted by law for such\nfirearms. 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 a respondent's possession consistent\nwith the procedures of article six hundred ninety of the criminal\nprocedure law.\n 4. (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 final extreme risk protection order and provide a copy\nof such order to such persons and agencies and registry no later than\nthe next business day after issuing the order. 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 final 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 such protection order\nand any court order amending or revoking such protection order or\nrestoring the respondent's ability to purchase a firearm, rifle or\nshotgun.\n 5. (a) If, in accordance with a temporary extreme risk protection\norder, a firearm, rifle or shotgun has been surrendered by or removed\nfrom the respondent, and the supreme court subsequently finds that the\npetitioner has not met the required standard of proof, the court's\nfinding shall include a written order, issued to all parties, directing\nthat any firearm, rifle or shotgun surrendered or removed pursuant to\nsuch temporary order shall be returned to the respondent, upon a written\nfinding that there is no legal impediment to the respondent's possession\nof such firearm, rifle or shotgun.\n (b) If any other person demonstrates that he or she is the lawful\nowner of any firearm, rifle or shotgun surrendered or removed pursuant\nto a protection order issued in accordance with this article, and\nprovided that the court has made a written finding that there is no\nlegal impediment to the person's possession of a surrendered or removed\nfirearm, rifle or shotgun, the court shall direct that such firearm,\nrifle or shotgun be returned to such lawful owner and inform such person\nof the obligation to safely store such firearm, rifle, or shotgun in\naccordance with section 265.45 of the penal law.\n 6. The respondent shall be notified on the record and in writing by\nthe court that he or she may submit one written request, at any time\nduring the effective period of an extreme risk protection order, for a\nhearing setting aside any portion of such order. The request shall be\nsubmitted in substantially the same form and manner as prescribed by the\nchief administrator of the courts. Upon such request, the court shall\npromptly hold a hearing, in accordance with this article, after\nproviding reasonable notice to the petitioner. The respondent shall bear\nthe burden to prove, by clear and convincing evidence, any change of\ncircumstances that may justify a change to the order.\n