S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6826
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 11, 2023
                                ___________
 
 Introduced  by Sen. MARTINEZ -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to extreme
   risk protection orders
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Section 6340 of the civil practice law and rules is amended
 by adding a new subdivision 5 to read as follows:
   5.  "EXCEPTION" MEANS A RESPONDENT WHO: (A) HAS PREVIOUSLY BEEN DEEMED
 CERTIFIED NOT SUITABLE TO POSSESS A RIFLE OR SHOTGUN PURSUANT TO  SUBDI-
 VISION  SIXTEEN  OF  SECTION 265.00 OF THE PENAL LAW; (B) HAS PREVIOUSLY
 BEEN CONVICTED OF A FELONY, OR SERIOUS OFFENSE AS DEFINED BY SUBDIVISION
 SEVENTEEN OF SECTION 265.00 OF THE PENAL LAW; (C) HAS A CURRENT  SUSPEN-
 SION  OR  INELIGIBILITY  ORDER  ISSUED  PURSUANT  TO THE PROVISIONS   OF
 SECTION  530.14  OF THE CRIMINAL   PROCEDURE   LAW   OR SECTION    EIGHT
 HUNDRED  FORTY-TWO-A OF THE FAMILY COURT ACT, WITH AN EXPIRATION DATE NO
 LESS THAN ONE YEAR FROM THE DATE OF THE FILING OF THE PETITION;  OR  (D)
 IS  A  PERSON  UNDER THE AGE OF SIXTEEN; AND THE PETITION WOULD BE BASED
 ONLY UPON SUCH PERSON'S LIKELIHOOD TO ENGAGE IN CONDUCT POSING A  THREAT
 OF  HARM  TO  HIMSELF OR HERSELF; AND THE PERSON DID NOT THREATEN OR USE
 PHYSICAL FORCE DIRECTED AT THE PETITIONER OR ANOTHER PERSON OR A SCHOOL;
 AND THE PERSON DID NOT USE OR THREATEN THE USE OF A  FIREARM,  RIFLE  OR
 SHOTGUN;  AND THERE IS NO EVIDENCE OF A FIREARM, RIFLE, SHOTGUN OR AMMU-
 NITION POSSESSED BY ANYONE IN THE PERSON'S HOUSEHOLD.
   § 2. Section 6341 of the civil practice law and rules, as  amended  by
 chapter 208 of the laws of 2022, is amended to read as follows:
   §  6341.  Application for an extreme risk protection order. In accord-
 ance with this article, a petitioner  may  file  an  application,  which
 shall be sworn, and accompanying supporting documentation, setting forth
 the  facts  and circumstances justifying the issuance of an extreme risk
 protection order. Provided, however, that a petitioner who is  a  police
 officer  or  district  attorney  shall  file  such  application upon the
 receipt of credible information that an individual is likely  to  engage
 in  conduct  that  would  result  in serious harm to himself, herself or
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10980-01-3
 S. 6826                             2
 
 others, as defined in paragraph one or two of subdivision (a) of section
 9.39 of the mental hygiene law, unless such petitioner  determines  that
 there is no probable cause for such filing, OR UNLESS AN EXCEPTION LIST-
 ED IN PARAGRAPH FIVE OF SECTION SIX THOUSAND THREE HUNDRED FORTY OF THIS
 ARTICLE  EXISTS,  IN  WHICH CASE A PETITIONER WHO IS A POLICE OFFICER OR
 DISTRICT ATTORNEY HAS THE DISCRETION WHETHER OR NOT TO FILE SUCH  APPLI-
 CATION.  Such application and supporting documentation shall be filed in
 the supreme court in the county in which  the  respondent  resides.  The
 chief administrator of the courts shall adopt forms that may be used for
 purposes  of  such  applications  and  the court's consideration of such
 applications. Such application form shall include inquiry as to  whether
 the  petitioner  knows,  or  has  reason to believe, that the respondent
 owns, possesses or has access to a firearm, rifle or shotgun and if  so,
 a request that the petitioner list or describe such firearms, rifles and
 shotguns, and the respective locations thereof, with as much specificity
 as possible.
   §  3.  Subdivision  1  of  section  6342 of the civil practice law and
 rules, as added by chapter 19 of the laws of 2019, is amended to read as
 follows:
   1. Upon application of a petitioner  pursuant  to  this  article,  the
 court  may  issue a temporary extreme risk protection order, ex parte or
 otherwise, to prohibit the respondent  from  purchasing,  possessing  or
 attempting  to  purchase  or possess a firearm, rifle or shotgun, upon a
 finding that there is probable cause to believe the respondent is likely
 to engage in conduct that would result  in  [serious  harm  to  himself,
 herself or others, as defined in paragraph one or two of subdivision (a)
 of  section  9.39  of  the  mental hygiene law]: (A) SUBSTANTIAL RISK OF
 PHYSICAL HARM TO HIMSELF OR HERSELF  AS  MANIFESTED  BY  THREATS  OF  OR
 ATTEMPTS  AT SUICIDE OR SERIOUS BODILY HARM OR OTHER CONDUCT DEMONSTRAT-
 ING THAT HE OR SHE IS DANGEROUS TO HIMSELF OR HERSELF, OR (B) A SUBSTAN-
 TIAL RISK OF PHYSICAL HARM TO OTHER PERSONS AS MANIFESTED  BY  HOMICIDAL
 OR  OTHER VIOLENT BEHAVIOR BY WHICH OTHERS ARE PLACED IN REASONABLE FEAR
 OF SERIOUS PHYSICAL HARM. Such application for a temporary  order  shall
 be determined in writing on the same day the application is filed.
   §  4.  Subdivision  2  of  section  6343 of the civil practice law and
 rules, as added by chapter 19 of the laws of 2019, is amended to read as
 follows:
   2. At the hearing pursuant to subdivision one  of  this  section,  the
 petitioner  shall  have  the  burden of proving, by clear and convincing
 evidence, that the respondent is likely to engage in conduct that  would
 result  in  [serious  harm  to himself, herself or others, as defined in
 paragraph one or two of subdivision (a) of section 9.39  of  the  mental
 hygiene  law]:  (A)  SUBSTANTIAL  RISK  OF  PHYSICAL  HARM TO HIMSELF OR
 HERSELF AS MANIFESTED BY THREATS OF OR ATTEMPTS AT  SUICIDE  OR  SERIOUS
 BODILY  HARM  OR OTHER CONDUCT DEMONSTRATING THAT HE OR SHE IS DANGEROUS
 TO HIMSELF OR HERSELF, OR (B) A SUBSTANTIAL RISK  OF  PHYSICAL  HARM  TO
 OTHER  PERSONS  AS  MANIFESTED BY HOMICIDAL OR OTHER VIOLENT BEHAVIOR BY
 WHICH OTHERS ARE PLACED IN REASONABLE FEAR OF SERIOUS PHYSICAL HARM. The
 court may consider the petition and any evidence submitted by the  peti-
 tioner,   any  evidence  submitted  by  the  respondent,  any  testimony
 presented, and the report of the relevant law enforcement agency submit-
 ted pursuant to subdivision nine of section sixty-three  hundred  forty-
 two of this article. The court shall also consider the factors set forth
 in  subdivision  two  of  section  sixty-three hundred forty-two of this
 article.
   § 5. This act shall take effect immediately.