NY State Senate Bill 2015-S6065

Senate Bill S6065

2015-2016 Legislative Session

Establishes procedures for issuance of gun violence restraining orders and gun seizure warrants

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to codes
Oct 14, 2015	referred to rules

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2015-S6065 (ACTIVE) - Details

See Assembly Version of this Bill:: A7038
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add Art 735 §§735.10 - 735.60, CP L; amd §265.01, Pen L

2015-S6065 (ACTIVE) - Summary

Establishes procedures for issuance of gun violence restraining orders and gun seizure warrants.

2015-S6065 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6065

 TITLE OF BILL :  An act to amend the criminal procedure law and the
penal law, in relation to gun violence restraining orders and gun
seizure warrants

 PURPOSE OR GENERAL IDEA OF BILL : To prevent foreseeable gun violence
by authorizing the judiciary to issue temporary gun violence
restraining orders and warrants, when an applicant demonstrates that
the subject of such an application poses a significant risk of
personal injury to himself, herself or others by possessing a firearm,
rifle, or shotgun.

 SUMMARY OF SPECIFIC PROVISIONS :

Section one of the bill amends the criminal procedure law by adding a
new article 735 providing for gun violence restraining orders and
warrants. The proposed article contains definitions (735.10), the
judicial procedure for issuance of gun violence restraining orders
(735.20), the judicial procedure for issuance of gun warrants
(735.30), provisions for a court hearing to review the basis for these
orders and to protect the rights of the restrained party (735.40),
provisions for requesting the renewal or a previously issued order
(735.50), and the penalty for any knowing violation of a gun violence
restraining order (735.60).

Proposed criminal procedure law article 735.10 defines these warrants
and restraining orders.

Proposed criminal procedure law article 735.20 permits any person to
submit an application to the court setting forth the facts and
circumstances necessitating the issuance of a gun violence restraining
order. Such an order shall be issued if an applicant's signed, sworn
affidavit and supporting materials demonstrate that the subject of the
application poses a significant risk of personal injury to himself,
herself or others by possessing or having access to a firearm, rifle,
shotgun, and any ammunition.

In making such a determination, the judge may examine the person
seeking the order and any witnesses the applicant produces. The judge
shall consider any recent threats or acts of violence, a recent
violation of a restraining order, a conviction for any weapons
offense, the subject's reckless use or brandishing of a firearm,
rifle, or shotgun; the history of actual, attempted, or threatened use
of physical force against others; prior arrests; history of any
restraining order violations; recent controlled-substance or alcohol
abuse; or, recent acquisition of guns or other deadly weapons.

If the judge is satisfied that there is probable cause to believe the
veracity of the application, the judge shall issue a gun violence
restraining order on the same day the application is submitted, which
shall include the grounds asserted for the order, the date the order
expires, the address of the Supreme Court in the county where the
restrained person resides, and a statement delineating the parameters
of the order, the entitlement of the restrained person to request one
hearing challenging the order, and his or her right to an attorney. A
form must be completed by the restrained person at the time of service
listing all firearms, rifles, or shotguns in his or her possession or
control. The law enforcement officer serving this order shall provide
the person with a form to request a hearing to review the grounds upon
which the order and warrant is based.

Proposed criminal procedure law article 73530 provides that if there
is probable cause to believe that the subject of a gun violence
restraining order possesses or owns a firearm, rifle, shotgun, or any
ammunition, the judge shall issue a warrant directing law enforcement
to seize and retain any specified firearm, rifle, shotgun, or any
ammunition. An affidavit must describe the relevant facts and
circumstances and list any firearm, rifle, shotgun, or any ammunition
to be seized with reasonable specificity.

When law enforcement takes property pursuant to the warrant, the
officer must provide a receipt, specifying the property in detail.
The subject firearm, rifle, shotgun, or ammunition shall not be seized
if the location to be searched is jointly occupied and a firearm,
rifle, shotgun, or any ammunition located therein is owned by someone
other than the restrained person, so long as it is stored in a manner
that prevents access to the restrained person, and the firearm, rifle,
shotgun, or ammunition is lawfully possessed by the owner. A gun safe
belonging to someone other than the restrained person shall not be
searched absent the owner's consent, or an independent search warrant.
If any other person claims title to a seized firearm, rifle, shotgun,
or ammunition it must be returned to its lawful owner.

Proposed criminal procedure law article 735.40 preserves and protects
the rights of the restrained party by requiring a hearing to be held
by the issuing court no later than twenty-one days after the execution
of the order and warrant, during which the state has the burden of
proving by clear and convincing evidence that the person poses a
significant risk of personal injury to himself, herself or others by
owning or possessing firearms, rifles, shotguns or any ammunition.

If the state meets its burden, the order shall continue in effect and
any firearm, rifle, shotgun, or ammunition seized shall be retained
for the duration of the order, or until ownership is transferred to a
licensed gun dealer. If the state fails to meet its burden, any
firearm, rifle, shotgun, or ammunition seized pursuant to the warrant
shall be returned and the order lifted. The court must notify DOS
electronically within 24 hours of any gun violence restraining order
or contrary order to restore the person's right to own or possess, or
attempt to purchase or receive, any lawful firearm, rifle, shotgun, or
ammunition. The restrained party may submit one written request during
the effective period of the order for a hearing challenging its basis.

Proposed criminal procedure law article 735.50 provides for the
renewal of a gun violence restraining order, where a law enforcement
agency has probable cause to believe that the subject of an order
continues to pose a significant risk of personal injury to himself,
herself, or others by purchasing, owning, possessing, or controlling a
firearm, rifle, shotgun, or any ammunition. In that case, the agency
may request renewal of the order by providing the circumstances
necessitating the request. Upon the same basis, at any time within
sixty days prior to the order, a judge may renew a gun violence
restraining order sua sponte, or upon request of another person. In
either case, the Supreme Court shall hold a hearing to determine
whether or not to renew the prior order, wherein the restrained person
is entitled to notice and an opportunity to be heard.

Proposed criminal procedure law article 735.60 provides that any
individual who knowingly violates a gun violence restraining order is
guilty of a class A misdemeanor pursuant to § 265.01 of the penal law,
and shall be prohibited from purchasing, owning, possessing,
controlling, or attempting to purchase or receive a firearm, rifle, or
shotgun and any ammunition for a five-year period, to commence upon
the expiration of the existing gun violence restraining order.

Section two of the bill amends section 265.01 of the penal law by
adding a new subdivision nine, providing that a person who violates a
court order prohibiting their purchasing, owning, possessing, or
controlling a firearm, rifle, shotgun, or any ammunition for one year,
per criminal procedure law section 735.40 as proposed herein, shall be

guilty of criminal possession of a weapon in the fourth degree, a
class A misdemeanor.

Section three of the bill sets forth the effective date.

 JUSTIFICATION : In the United States, there have been at least 133
mass shootings between January 2009 and July 2015  including the 2012
Aurora movie theater shooting in Colorado that resulted in 12
casualties and 58 injured, the 2012 Sandy Hook school-shooting in
Connecticut that resulted in 28 casualties, and the Isla Vista mass
shooting on the University of California Santa Barbara Campus in May,
2014 that resulted in 7 casualties.

In many of these incidents, persons close to the shooter report
that,prior to the shootings, the shooter exhibited behavioral changes
and disclosed evidence of a homicidal intent.

After the Aurora, Colorado mass shooting, the New York Times reported
that "interviews with more than a dozen people who knew or had contact
with Mr. Holmes in the months before the attack paint a disturbing
portrait of a young man struggling with a severe mental illness who
more than once hinted to others that he was losing his footing." Most
notably, five weeks prior to the shooting, the suspect's University of
Colorado psychiatrist alerted campus police, per her requirement to
report, because she believed him to be a potential danger to the
public due to homicidal statements the suspect had made. The suspect
had stopped attending his sessions with the psychiatrist and had begun
threatening her via text message and email. Contemporaneously, the
former student failed his graduate oral board exams.

A few months prior to the shooting, packages began arriving at his
apartment and at the school, containing thousands of rounds of
ammunition bought online. In the six weeks prior to the shooting, the
suspect legally purchased an S&W .233 high powered semi-automatic
rifle (similar to an AR-15), two .40 caliber Glock pistols, and a
Remington 870 shotgun at three Colorado gun stores. During this
period, the suspect told a fellow student that he wanted to kill
people when his life was over, and he showed another student a Glock
semiautomatic pistol. Just two weeks prior to the attack, he asked a
friend via text if she had heard of "dysphoric mania" a form of
bipolar disorder, adding that she should stay away from him because he
was "bad news." The stores where the firearms were sold each report
that their personnel fully followed all federal requirements.
Moreover, nothing that the suspect disclosed to the therapist rose to
the threshold in Colorado for hospitalizing an individual
involuntarily, and the suspect had no prior criminal record.

In 2014 in Isla Vista, California, a 22-year old student at the
Univer-sity of California Santa Barbara made numerous online videos in
which he made clear homicidal threats. It was reported that after the
student turned 18, he started rejecting mental health care that his
family provided, and became increasingly isolated. The student was
prescribed psychotropic drugs but declined to take them. During the
summer of 2013, the student reportedly exhibited violence toward women
at a party, before others intervened. Thereafter, the student began
buying semiautomatic handguns. When the student posted online videos
and social media posts about suicide and homicide that worried his
mother, she contacted mental health officials. In response, police
visited his house only weeks before the shooting, but determined that
he was polite, had not committed any crime, and did not meet the
criteria for involuntary confinement. The police lacked authority to
remove the student's firearms. Thereafter, according to the student's
writings, he kept one of his guns and some loaded magazines near him
so if police came back to his apartment, he would try to shoot them
and escape. On May 23, 2014, the student went on a killing spree using
a knife and the firearms he had legally purchased, leaving 7 people
dead and others wounded. The student, who had apparently taken his own
life, was found with three semiautomatic handguns (a Glock 34 and two
Sig Sauer P226s) and more than 400 rounds of ammunition.

Authorities and gun experts believe that the suspect abided by
California's background check system and waiting periods, and that
there was nothing in the suspect's known history that could have
prevented him from making legal gun purchases. The suspect had no
criminal history, had not been ordered to submit to involuntary mental
health treatment, and did not have a history of addiction.

In these mass killings and many others, the perpetrators demonstrated
mental instability, and persons close to them, including family
members and mental health professionals, expressed concern that they
presented a threat of harm to either themselves or others. Under
current law, in many instances, society lacks the authority to
prohibit mentally unstable, dangerous individuals from purchasing
firearms, rifles, or shotguns, and any ammunition, and law enforcement
lacks a way of obtaining judicial authorization to remove guns from
such an individual. This legislation provides a new avenue that can
help prevent future mass shootings and senseless deaths from
occurring, while providing judicial safeguards and clear evidentiary
burdens to protect the rights of those who might be affected.

This bill would authorize a court to issue a gun violence restraining
order, applicable for one year and renewable after that, when the
court finds grounds to believe that someone poses a significant risk
of personal injury to himself, herself, or others by possessing a
firearm, rifle, or shotgun, and any ammunition. If the subject of a
restraining order possesses or owns a firearm, rifle, or shotgun, the
judge would also issue a warrant to law enforcement, directing them to
seize and retain any specified firearm, rifle, or shotgun, and any
ammunition subject to the order. The restrained party would have the
right to a hearing within 14 days,at which the state would have the
burden of proving by clear and convincing evidence that the restrained
party poses a significant risk of personal injury to him- or herself
or others by owning or possessing firearms, rifles, or shotguns. If
the state meets its burden, the order would continue and any guns
seized would be retained for a period of one year, subject to renewal
of the order and a fresh hearing. If the state fails to meet its
burden, the firearms, rifles, or shotguns and any ammunition seized
would be returned and the order lifted.

This legislation creates a proactive method by which concerned family
members, close friends, and medical professionals may intervene to
prevent a potentially dangerous person from committing gun violence.
Judicial oversight assures due process while, upon probable cause,
court-authorized law enforcement officers may take action to ensure
the safety of dangerous individuals and their communities.

 PRIOR LEGISLATIVE HISTORY : New bill.

 FISCAL IMPLICATIONS : To be determined.

 EFFECTIVE DATE : This act shall take effect immediately.

2015-S6065 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6065

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            October 14, 2015
                               ___________

Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
  relation to gun violence restraining orders and gun seizure warrants

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The criminal procedure law is amended by adding a new arti-
cle 735 to read as follows:
                               ARTICLE 735
                   GUN VIOLENCE RESTRAINING ORDERS AND
                          GUN SEIZURE WARRANTS
SECTION 735.10 DEFINITIONS.
        735.20 ISSUANCE OF GUN VIOLENCE RESTRAINING ORDER.
        735.30 ISSUANCE OF GUN SEIZURE WARRANT.
        735.40 COURT HEARING.
        735.50 REQUEST FOR RENEWAL OF ORDER.
        735.60 OFFENSES.
S 735.10 DEFINITIONS.
  AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE  FOLLOWING
MEANINGS:
  1.  "GUN  SEIZURE WARRANT" SHALL MEAN A COURT ORDER REGARDING A PERSON
WHO IS SUBJECT TO A GUN VIOLENCE RESTRAINING ORDER AND WHO IS  KNOWN  TO
OWN OR POSSESS ONE OR MORE FIREARMS, RIFLES, OR SHOTGUNS AND ANY AMMUNI-
TION  THAT  DIRECTS  A  LAW  ENFORCEMENT  OFFICER TO SEIZE ANY FIREARMS,
RIFLES, OR SHOTGUNS AND ANY AMMUNITION IN THE POSSESSION OF  THE  PERSON
AND  TO BRING THE UNLOADED FIREARMS, RIFLES, OR SHOTGUNS AND ANY AMMUNI-
TION BEFORE THE JUDGE ISSUING SUCH ORDER.
  2. "GUN VIOLENCE RESTRAINING ORDER" SHALL MEAN A COURT ORDER PROHIBIT-
ING A  PERSON  FROM  PURCHASING,  OWNING,  POSSESSING,  CONTROLLING,  OR
ATTEMPTING  TO  PURCHASE OR RECEIVE A FIREARM, RIFLE, OR SHOTGUN AND ANY
AMMUNITION FOR A PERIOD OF ONE YEAR.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03464-04-5

S. 6065                             2

S 735.20 ISSUANCE OF GUN VIOLENCE RESTRAINING ORDER.
  1. ANY PERSON MAY SUBMIT AN APPLICATION TO THE COURT SETTING FORTH THE
FACTS  AND  CIRCUMSTANCES  NECESSITATING  THE ISSUANCE OF A GUN VIOLENCE
RESTRAINING ORDER. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL PRESCRIBE
THE MANNER AND FORM OF THE APPLICATION PURSUANT TO SECTION 10.40 OF THIS
CHAPTER.  SUCH FORM SHALL INCLUDE INQUIRY AS TO  WHETHER  THE  APPLICANT
KNOWS  OR  HAS REASON TO BELIEVE THAT THE SUBJECT OF THE APPLICATION HAS
ACCESS TO FIREARMS, RIFLES, OR SHOTGUNS, AND ANY AMMUNITION, AND IF  SO,
A  REQUEST THAT THE APPLICANT LIST OR DESCRIBE SUCH FIREARMS, RIFLES, OR
SHOTGUNS, AND ANY AMMUNITION AND RESPECTIVE LOCATIONS THEREOF,  WITH  AS
MUCH SPECIFICITY AS POSSIBLE.
  2.  A  GUN  VIOLENCE  RESTRAINING  ORDER SHALL BE ISSUED TO PROHIBIT A
PERSON FROM PURCHASING, OWNING, POSSESSING, CONTROLLING,  OR  ATTEMPTING
TO  PURCHASE OR RECEIVE A FIREARM, RIFLE, OR SHOTGUN, AND ANY AMMUNITION
IF AN AFFIDAVIT, SIGNED BY THE APPLICANT UNDER OATH, AND ANY  ADDITIONAL
INFORMATION  PROVIDED  TO THE COURT DEMONSTRATES, TO THE SATISFACTION OF
THE COURT, THAT THE PERSON POSES A SIGNIFICANT RISK OF  PERSONAL  INJURY
TO  HIMSELF,  HERSELF,  OR  OTHERS  BY  PURCHASING,  OWNING, POSSESSING,
CONTROLLING, OR ATTEMPTING TO PURCHASE OR RECEIVE A FIREARM,  RIFLE,  OR
SHOTGUN, AND ANY AMMUNITION.
  3.  PRIOR  TO  THE  ISSUANCE,  DENIAL,  OR  RENEWAL  OF A GUN VIOLENCE
RESTRAINING ORDER, THE COURT SHALL ENSURE THAT A SEARCH IS OR  HAS  BEEN
CONDUCTED  TO  DETERMINE IF THE SUBJECT OF THE APPLICATION HAS ANY PRIOR
CRIMINAL CONVICTION FOR A  VIOLENT  OR  SERIOUS  FELONY  AS  DEFINED  BY
SECTION 70.02 OF THE PENAL LAW; HAS ANY MISDEMEANOR CONVICTION INVOLVING
DOMESTIC  VIOLENCE,  WEAPONS,  OR  OTHER  VIOLENCE;  HAS ANY OUTSTANDING
WARRANT; IS CURRENTLY ON PAROLE OR PROBATION; HAS A REGISTERED  FIREARM,
RIFLE,  OR  SHOTGUN; OR HAS ANY PRIOR RESTRAINING ORDER OR ANY VIOLATION
OF A PRIOR RESTRAINING ORDER. THE  SEARCH  SHALL  BE  CONDUCTED  OF  ALL
RECORDS AND DATABASES READILY AVAILABLE AND REASONABLY ACCESSIBLE TO THE
COURT,  INCLUDING,  BUT  NOT  LIMITED TO, THE FOLLOWING: (1) THE FEDERAL
SUPERVISED RELEASE FILE; (2) THE NEW YORK STATE PISTOL PERMIT  DATABASE;
(3)  THE  FEDERAL  BUREAU  OF INVESTIGATION'S NATIONAL DATABASE; (4) THE
NATIONAL INSTANT CRIMINAL BACKGROUND CHECK  SYSTEM;  (5)  LOCALLY  MAIN-
TAINED  CRIMINAL HISTORY RECORDS OR DATABASES; (6) THE STATEWIDE LICENSE
AND RECORD DATABASE  PURSUANT TO SECTION 400.02 OF THE  PENAL  LAW;  (7)
ANY  OTHER  RELEVANT  DATABASES  THAT  COLLECT INFORMATION PERTAINING TO
POSSESSION OF A FIREARM. HOWEVER, A  RECORD  OR  DATABASE  NEED  NOT  BE
SEARCHED  IF THE INFORMATION AVAILABLE IN THAT RECORD OR DATABASE CAN BE
OBTAINED AS A RESULT OF A SEARCH CONDUCTED IN ANOTHER  RECORD  OR  DATA-
BASE.
  4.  IN  DETERMINING WHETHER A GUN VIOLENCE RESTRAINING ORDER SHOULD BE
ISSUED, THE JUDGE MAY EXAMINE, UNDER OATH, THE PERSON SEEKING THE  ORDER
AND ANY WITNESSES THE PERSON PRODUCES.
  (A)  IN  DETERMINING  WHETHER  GROUNDS  FOR A GUN VIOLENCE RESTRAINING
ORDER EXISTS, THE JUDGE SHALL CONSIDER ANY RELEVANT  FACTORS  INCLUDING,
BUT NOT LIMITED TO:
  (I) ANY RECENT THREAT OR ACT OF VIOLENCE BY THE PERSON DIRECTED TOWARD
HIMSELF, HERSELF, OR OTHERS;
  (II) ANY RECENT VIOLATION OF A RESTRAINING ORDER;
  (III) ANY CONVICTION FOR A WEAPONS OFFENSE;
  (IV) THE RECKLESS USE, DISPLAY, OR BRANDISHING OF A FIREARM, RIFLE, OR
SHOTGUN BY THE PERSON;
  (V)  THE  HISTORY OF USE, ATTEMPTED USE, OR THREATENED USE OF PHYSICAL
FORCE BY THE PERSON AGAINST ANY OTHER PERSON;
  (VI) ANY PRIOR ARREST OF THE PERSON FOR A CRIME OR OFFENSE;

S. 6065                             3

  (VII) ANY HISTORY OF A VIOLATION BY THE PERSON OF A RESTRAINING ORDER;
  (VIII) EVIDENCE OF RECENT OR ONGOING ABUSE OF CONTROLLED SUBSTANCES OR
ALCOHOL BY THE PERSON; OR
  (IX)  EVIDENCE OF RECENT ACQUISITION OF FIREARMS, RIFLES, SHOTGUNS, OR
OTHER DEADLY WEAPONS OR ANY AMMUNITION THEREFOR.
  (B) THE AFFIDAVIT SHALL SET FORTH THE FACTS ESTABLISHING  THE  GROUNDS
OF  THE APPLICATION, OR PROBABLE CAUSE FOR BELIEVING THAT THEY EXIST. IN
LIEU OF THE REQUIRED WRITTEN AFFIDAVIT,  THE  JUDGE  MAY  TAKE  AN  ORAL
STATEMENT UNDER OATH.
  5.  IF  THE JUDGE IS SATISFIED THAT THERE IS PROBABLE CAUSE TO BELIEVE
IN THE VERACITY OF THE APPLICATION, THE JUDGE SHALL ISSUE A GUN VIOLENCE
RESTRAINING ORDER.  SUCH ORDER SHALL BE ISSUED ON THE SAME DAY THAT  THE
APPLICATION  IS SUBMITTED TO THE COURT, UNLESS THE PETITION IS FILED TOO
LATE IN THE DAY TO PERMIT EFFECTIVE REVIEW,  WHICH  MAY  INCLUDE  PROMPT
EXAMINATIONS  UNDER  SUBDIVISION SIX OF THIS SECTION, IN WHICH CASE, THE
ORDER SHALL BE ISSUED OR DENIED ON THE NEXT DAY OF JUDICIAL BUSINESS  IN
SUFFICIENT TIME FOR THE ORDER TO BE FILED THAT DAY WITH THE CLERK OF THE
COURT.
  6. A GUN VIOLENCE RESTRAINING ORDER SHALL INCLUDE:
  (A) A STATEMENT OF THE GROUNDS ASSERTED FOR THE ORDER;
  (B) THE DATE AND TIME THE ORDER EXPIRES;
  (C)  THE  ADDRESS  OF  THE  SUPREME  COURT FOR THE COUNTY IN WHICH THE
RESTRAINED PARTY RESIDES; AND
  (D) A STATEMENT TO THE RESTRAINED PERSON STATING: THE  TIME  AND  DATE
THAT  THE ORDER EXPIRES; THAT THE PERSON MAY NOT OWN, POSSESS, PURCHASE,
OR RECEIVE, OR ATTEMPT TO PURCHASE OR RECEIVE A FIREARM, RIFLE, OR SHOT-
GUN OR ANY AMMUNITION WHILE THIS ORDER IS IN EFFECT; THAT THE PERSON  IS
ENTITLED  TO SUBMIT ONE WRITTEN REQUEST FOR A HEARING AT ANY TIME DURING
THE EFFECTIVE PERIOD OF THE ORDER FOR AN ORDER PERMITTING THE PERSON  TO
OWN,  POSSESS,  PURCHASE, OR RECEIVE A FIREARM, RIFLE, OR SHOTGUN OR ANY
AMMUNITION; THAT THE PERSON MAY SEEK THE ADVICE OF AN ATTORNEY AS TO ANY
MATTER CONNECTED WITH  THE  ORDER;  AND  THAT  THE  ATTORNEY  SHOULD  BE
CONSULTED  PROMPTLY  SO  THAT  THE ATTORNEY MAY ASSIST THE PERSON IN ANY
MATTER CONNECTED WITH THE ORDER.
  (E) A FORM TO BE COMPLETED AND SIGNED BY THE RESTRAINED PERSON AT  THE
TIME  OF  SERVICE  OF  THE GUN VIOLENCE RESTRAINING ORDER WHICH ELICITS,
UNDER PENALTY OF PERJURY, A LIST OF ALL FIREARMS,  RIFLES,  OR  SHOTGUNS
AND  ANY  AMMUNITION IN HIS OR HER POSSESSION OR UNDER HIS OR HER OWNER-
SHIP OR CONTROL, AND THE PARTICULAR LOCATION OF EACH FIREARM, RIFLE,  OR
SHOTGUN AND ANY AMMUNITION LISTED.
  7.  WHEN SERVING A GUN VIOLENCE RESTRAINING ORDER, THE LAW ENFORCEMENT
OFFICER SHALL INFORM THE PERSON THAT THE PERSON MAY SUBMIT  ONE  WRITTEN
REQUEST  FOR  A HEARING, PURSUANT TO SUBDIVISION EIGHT OF SECTION 735.40
OF THIS ARTICLE, AT ANY TIME DURING THE EFFECTIVE PERIOD  OF  THE  ORDER
AND PROVIDE THE PERSON WITH A FORM TO REQUEST THE HEARING.
S 735.30 ISSUANCE OF GUN SEIZURE WARRANT.
  1.  IF  THERE  IS PROBABLE CAUSE TO BELIEVE THAT A PERSON WHO HAS BEEN
ISSUED A GUN VIOLENCE RESTRAINING ORDER POSSESSES  OR  OWNS  A  FIREARM,
RIFLE,  OR SHOTGUN OR ANY AMMUNITION THE JUDGE SHALL ISSUE A GUN SEIZURE
WARRANT TO THE APPROPRIATE LAW ENFORCEMENT OFFICER DIRECTING THE OFFICER
TO SEIZE ANY SPECIFIED FIREARM, RIFLE, OR SHOTGUN AND ANY AMMUNITION AND
TO RETAIN THE FIREARM, RIFLE, OR SHOTGUN AND ANY AMMUNITION  SUBJECT  TO
THE ORDER OF THE COURT.
  2.  A  GUN  SEIZURE  WARRANT  SHALL  BE  ISSUED  UPON  PROBABLE CAUSE,
SUPPORTED BY AN AFFIDAVIT, NAMING OR DESCRIBING WITH REASONABLE  SPECIF-
ICITY THE FACTS AND CIRCUMSTANCES JUSTIFYING THE COURT ORDER AND LISTING

S. 6065                             4

ANY  FIREARM, RIFLE, OR SHOTGUN AND ANY AMMUNITION TO BE SEIZED PURSUANT
TO THE COURT ORDER.
  3.  A  FIREARM, RIFLE, OR SHOTGUN DESCRIBED IN THE GUN SEIZURE WARRANT
AND ANY AMMUNITION MAY BE TAKEN FROM ANY PLACE, OR FROM  ANY  PERSON  IN
WHOSE POSSESSION THE FIREARM, RIFLE, OR SHOTGUN OR AMMUNITION MAY BE.
  4.  WHEN  A LAW ENFORCEMENT OFFICER TAKES PROPERTY UNDER A GUN SEIZURE
WARRANT, THE OFFICER SHALL GIVE A RECEIPT FOR THE PROPERTY TAKEN, SPECI-
FYING IT IN DETAIL, TO THE PERSON FROM WHOM IT WAS TAKEN. IN THE ABSENCE
OF A PERSON, THE OFFICER SHALL LEAVE THE RECEIPT IN THE PLACE WHERE  THE
PROPERTY WAS FOUND.
  5.  IF  THE  LOCATION  TO  BE  SEARCHED  DURING THE EXECUTION OF A GUN
SEIZURE WARRANT IS JOINTLY OCCUPIED BY MULTIPLE PARTIES AND  A  FIREARM,
RIFLE, OR SHOTGUN AND ANY AMMUNITION LOCATED DURING THE EXECUTION OF THE
GUN  SEIZURE  WARRANT  IS OWNED BY A PERSON OTHER THAN THE PERSON IN THE
GUN SEIZURE WARRANT, THE FIREARM, RIFLE, OR SHOTGUN AND  ANY  AMMUNITION
SHALL  NOT BE SEIZED IF THE FIREARM, RIFLE, OR SHOTGUN AND AMMUNITION IS
STORED IN A MANNER THAT THE PERSONS NAMED IN  THE  GUN  SEIZURE  WARRANT
DOES NOT HAVE ACCESS TO OR CONTROL OF THE FIREARM, RIFLE, OR SHOTGUN AND
AMMUNITION  AND  THERE  IS  NO  EVIDENCE  OF  UNLAWFUL POSSESSION OF THE
FIREARM, RIFLE, OR SHOTGUN OR AMMUNITION BY THE OWNER.
  6. IF THE LOCATION TO BE  SEARCHED  DURING  THE  EXECUTION  OF  A  GUN
SEIZURE  WARRANT  IS JOINTLY OCCUPIED BY MULTIPLE PARTIES AND A GUN SAFE
THAT IS OWNED BY A PERSON OTHER THAN THE PERSON NAMED IN THE GUN SEIZURE
WARRANT IS LOCATED THEREIN, THE CONTENTS OF THE GUN SAFE  SHALL  NOT  BE
SEARCHED EXCEPT IN THE OWNER'S PRESENCE, OR WITH THE OWNER'S CONSENT, OR
UNLESS A VALID SEARCH WARRANT HAS BEEN OBTAINED.
S 735.40 COURT HEARING.
  1.  EXCEPT  AS PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, NO LATER
THAN TWENTY-ONE DAYS AFTER THE EXECUTION OF A GUN  VIOLENCE  RESTRAINING
ORDER  AND  A  GUN SEIZURE WARRANT, IF APPLICABLE, THE COURT THAT ISSUED
THE ORDER AND SEIZURE WARRANT SHALL HOLD A HEARING TO DETERMINE  WHETHER
THE  PERSON  WHO IS THE SUBJECT OF THE ORDER MAY POSSESS, OWN, PURCHASE,
OR RECEIVE A FIREARM, RIFLE, OR SHOTGUN AND  ANY  AMMUNITION  AND,  WHEN
APPLICABLE,  WHETHER A SEIZED FIREARM, RIFLE, OR SHOTGUN AND ANY AMMUNI-
TION SHOULD BE RETURNED TO THE PERSON NAMED IN THE WARRANT.
  2. AT THE HEARING, THE STATE SHALL HAVE  THE  BURDEN  OF  PROVING,  BY
CLEAR  AND CONVINCING EVIDENCE, THAT THE PERSON POSES A SIGNIFICANT RISK
OF PERSONAL INJURY TO HIMSELF, HERSELF, OR OTHERS BY PURCHASING, OWNING,
POSSESSING,  CONTROLLING  OR  ATTEMPTING  TO  PURCHASE  OR  RECEIVE  THE
FIREARM, RIFLE, OR SHOTGUN, AND ANY AMMUNITION.
  3.  IF, AT THE HEARING, THE PERSON IS FOUND TO POSE A SIGNIFICANT RISK
OF PERSONAL INJURY TO HIMSELF, HERSELF, OR OTHERS BY PURCHASING, OWNING,
POSSESSING, OR CONTROLLING A FIREARM, RIFLE,  OR  SHOTGUN  THE  FIREARM,
RIFLE,  OR  SHOTGUN  AND  ANY  AMMUNITION SEIZED PURSUANT TO THE WARRANT
SHALL BE RETAINED BY THE LAW ENFORCEMENT AGENCY FOR THE DURATION OF  THE
ORDER OR UNTIL OWNERSHIP OF THE FIREARM, RIFLE, OR SHOTGUN AND ANY AMMU-
NITION  IS  TRANSFERRED  TO  A  LICENSED GUN DEALER. THE PERSON SHALL BE
PROHIBITED  FROM  PURCHASING,  OWNING,  POSSESSING,  OR  CONTROLLING   A
FIREARM,  RIFLE, OR SHOTGUN AND ANY AMMUNITION OR ATTEMPTING TO PURCHASE
OR RECEIVE A FIREARM, RIFLE, OR SHOTGUN, AND ANY AMMUNITION FOR A PERIOD
OF ONE YEAR.
  4. THE COURT SHALL NOTIFY THE DIVISION OF CRIMINAL JUSTICE SERVICES OF
THE GUN VIOLENCE RESTRAINING ORDER NO LATER THAN THE NEXT  BUSINESS  DAY
AFTER  ISSUING  THE ORDER. THE COURT ALSO SHALL NOTIFY THE DEPARTMENT OF
ANY ORDER RESTORING THE PERSON'S ABILITY TO  OWN  OR  POSSESS  FIREARMS,
RIFLES,  OR SHOTGUNS, AND ANY AMMUNITION NO LATER THAN THE NEXT BUSINESS

S. 6065                             5

DAY AFTER ISSUING THE ORDER TO RESTORE THE  PERSON'S  RIGHT  TO  OWN  OR
POSSESS  ANY TYPE OF FIREARM, RIFLE, OR SHOTGUN, AND ANY AMMUNITION THAT
MAY BE LAWFULLY OWNED AND POSSESSED.  ANY  NOTICE  OR  REPORT  SUBMITTED
PURSUANT  TO  THIS  SUBDIVISION  SHALL  BE IN AN ELECTRONIC FORMAT, IN A
MANNER PRESCRIBED BY THE DIVISION OF CRIMINAL JUSTICE.
  5. IF THE COURT FINDS THAT THE STATE HAS NOT MET THE REQUIRED STANDARD
OF PROOF, THE FIREARM, RIFLE,  OR  SHOTGUN  AND  ANY  AMMUNITION  SEIZED
PURSUANT TO THE WARRANT SHALL BE RETURNED TO THE PERSON.
  6.  IF  THE  PERSON  IS  PROHIBITED  BY  LAW  FROM PURCHASING, OWNING,
POSSESSING, OR CONTROLLING A FIREARM, RIFLE, OR SHOTGUN AND ANY  AMMUNI-
TION FOR A PERIOD OF ONE YEAR OR MORE BY ANY OTHER PROVISION OF STATE OR
FEDERAL  LAW,  A  HEARING PURSUANT TO THIS SECTION SHALL NOT BE REQUIRED
AND THE COURT SHALL ISSUE AN ORDER TO HOLD THE FIREARM, RIFLE, OR  SHOT-
GUN  AND  ANY AMMUNITION UNTIL EITHER THE PERSON IS NO LONGER PROHIBITED
FROM OWNING A FIREARM, RIFLE, OR SHOTGUN OR  AMMUNITION  OR  THE  PERSON
SELLS  OR  TRANSFERS OWNERSHIP OF THE FIREARM, RIFLE, OR SHOTGUN AND ANY
AMMUNITION TO A LICENSED GUN DEALER.
  7. IF ANY OTHER PERSON CLAIMS TITLE TO A FIREARM, RIFLE, OR SHOTGUN OR
AMMUNITION SEIZED PURSUANT TO THE WARRANT, THE FIREARM, RIFLE, OR  SHOT-
GUN OR AMMUNITION SHALL BE RETURNED TO THE LAWFUL OWNER.
  8.  A  PERSON WHO IS THE SUBJECT OF A COURT ORDER PURSUANT TO SUBDIVI-
SION THREE OF THIS SECTION MAY SUBMIT ONE WRITTEN REQUEST  AT  ANY  TIME
DURING  THE  EFFECTIVE  PERIOD  OF  THE ORDER FOR A HEARING FOR AN ORDER
PERMITTING THE PERSON TO POSSESS, OWN, PURCHASE, OR RECEIVE  A  FIREARM,
RIFLE, OR SHOTGUN AND ANY AMMUNITION.  THE REQUEST SHALL BE SUBMITTED IN
A  FORM  AND  MANNER  AS  PRESCRIBED  BY  THE CHIEF ADMINISTRATOR OF THE
COURTS.
S 735.50 REQUEST FOR RENEWAL OF ORDER.
  1. IF A LAW ENFORCEMENT AGENCY HAS PROBABLE CAUSE TO  BELIEVE  THAT  A
PERSON  SUBJECT  TO A GUN VIOLENCE RESTRAINING ORDER CONTINUES TO POSE A
SIGNIFICANT RISK OF PERSONAL INJURY TO HIMSELF, HERSELF,  OR  OTHERS  BY
PURCHASING,  OWNING,  POSSESSING,  OR  CONTROLLING  A FIREARM, RIFLE, OR
SHOTGUN, AND ANY AMMUNITION AT ANY TIME WITHIN SIXTY DAYS PRIOR  TO  THE
ORDER,  THE  AGENCY  MAY  INITIATE A REQUEST FOR A RENEWAL OF THE ORDER,
SETTING FORTH THE FACTS AND CIRCUMSTANCES NECESSITATING THE REQUEST. THE
REQUEST SHALL BE SUBMITTED IN A FORM AND MANNER  AS  PRESCRIBED  BY  THE
CHIEF ADMINISTRATOR OF THE COURTS.
  (A)  A  HEARING HELD PURSUANT TO THIS SECTION SHALL BE HELD IN SUPREME
COURT TO DETERMINE IF A REQUEST  FOR  RENEWAL  OF  THE  ORDER  SHALL  BE
ISSUED.
  (B)  THE  PERSON NAMED IN THE RESTRAINING ORDER SHALL BE GIVEN WRITTEN
NOTICE AND AN OPPORTUNITY TO BE HEARD.
  2. AT ANY TIME WITHIN THE SIXTY DAYS PRIOR TO THE ORDER, A JUDGE  MAY,
UPON  HIS  OR HER OWN MOTION, OR UPON REQUEST OF ANOTHER PERSON, ISSUE A
RENEWAL OF A GUN VIOLENCE RESTRAINING ORDER WHEN THERE IS PROBABLE CAUSE
TO BELIEVE THAT A PERSON SUBJECT  TO  THE  ORDER  CONTINUES  TO  POSE  A
SIGNIFICANT  RISK  OF  PERSONAL INJURY TO HIMSELF, HERSELF, OR OTHERS BY
PURCHASING, OWNING, POSSESSING, OR  CONTROLLING  A  FIREARM,  RIFLE,  OR
SHOTGUN  AND  ANY AMMUNITION AFTER WRITTEN NOTICE TO THE PERSON NAMED IN
THE RESTRAINING ORDER AND AFTER THE PERSON HAS BEEN GIVEN AN OPPORTUNITY
FOR A HEARING.
S 735.60 OFFENSES.
  EVERY PERSON WHO PURCHASES, OWNS, POSSESSES, CONTROLS, OR ATTEMPTS  TO
PURCHASE  OR  RECEIVE  A  FIREARM, RIFLE, OR SHOTGUN AND ANY  AMMUNITION
WITH KNOWLEDGE THAT HE OR SHE IS PROHIBITED  FROM  DOING  SO  BY  A  GUN
VIOLENCE  RESTRAINING  ORDER  ISSUED PURSUANT TO SECTIONS 735.20, 735.40

S. 6065                             6

AND 735.50 OF THIS ARTICLE, IS GUILTY OF A CLASS A MISDEMEANOR  PURSUANT
TO SECTION 265.01 OF THE PENAL LAW AND SHALL BE PROHIBITED FROM PURCHAS-
ING,  OWNING,  POSSESSING,  CONTROLLING,  OR  ATTEMPTING  TO PURCHASE OR
RECEIVE  A FIREARM, RIFLE, OR SHOTGUN AND ANY AMMUNITION FOR A FIVE-YEAR
PERIOD, TO COMMENCE UPON THE EXPIRATION OF  THE  EXISTING  GUN  VIOLENCE
RESTRAINING ORDER.
  S 2. Section 265.01 of the penal law is amended by adding a new subdi-
vision 9 to read as follows:
  (9)  HE  OR  SHE  VIOLATES  SUBDIVISION THREE OF SECTION 735.40 OF THE
CRIMINAL PROCEDURE LAW.
  S 3. This act shall take effect immediately.

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Senate Bill S6065

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Brad Hoylman-Sigal