Senate Bill S260A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  260--A
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced by Sens. MARTINEZ, ADDABBO -- read twice and ordered printed,
   and  when  printed  to  be  committed to the Committee on Judiciary --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee

 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. Subdivisions 2 and 3 of section 6340 of the civil  practice
 law  and  rules,  subdivision 2 as amended by chapter 425 of the laws of
 2024, subdivision 3 as added by chapter 19 of  the  laws  of  2019,  are
 amended to read as follows:
   2.  "Petitioner"  means:  (a)  a law enforcement agency that employs a
 police officer, as such term is defined in section 1.20 of the  criminal
 procedure law, or a police officer, DEPUTY SHERIFF, or district attorney
 with  jurisdiction  in  the county or city where the person against whom
 the order is sought resides;  (b)  a  family  or  household  member,  as
 defined  in  subdivision two of section four hundred fifty-nine-a of the
 social services law, of the person against whom the order is sought; (c)
 a school administrator as defined in section eleven hundred  twenty-five
 of  the  education  law,  or  a  school administrator's designee, of any
 school in which the person against whom the order is sought is currently
 enrolled or has been enrolled in the six  months  immediately  preceding
 the  filing  of  the  petition;  or  (d)  a licensed physician, licensed
 psychiatrist, licensed psychologist, registered nurse, licensed clinical
 social worker, certified  clinical  nurse  specialist,  certified  nurse
 practitioner,  licensed  clinical  marriage and family therapist, regis-
 tered professional nurse, licensed  master  social  worker  or  licensed
 mental  health  counselor  who  has  treated the person against whom the
 order is sought in the six months immediately preceding  the  filing  of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01149-06-5
 S. 260--A                           2
 
 the  petition.  For  purposes  of this article, a school administrator's
 designee shall be employed at the same school as the school  administra-
 tor and shall be any of the following who has been designated in writing
 to  file a petition with respect to the person against whom the order is
 sought: a school teacher, school  guidance  counselor,  school  psychol-
 ogist,  school  social  worker,  school nurse, or other school personnel
 required to hold a teaching or administrative  license  or  certificate,
 and  full  or  part-time  compensated school employee required to hold a
 temporary coaching license or professional coaching certificate.
   3. "Respondent" means the  person,  TWELVE  YEARS  OF  AGE  OR  OLDER,
 against  whom an extreme risk protection order is or may be sought under
 this article.
   § 2. Section 6341 of the civil practice law and rules, as  amended  by
 chapter 425 of the laws of 2024, is amended to read as follows:
   §  6341.  Application  for  an  extreme  risk  protection order. 1. In
 accordance 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  that  is  a
 law  enforcement  agency  that employs a police officer, as such term IS
 defined in section 1.20 of the criminal procedure law, or  is  a  police
 officer,  DEPUTY  SHERIFF, or district attorney with jurisdiction in the
 county or city where the person against whom the order is sought resides
 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 themself 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 THEMSELF AS MANIFESTED  BY  THREATS
 OF OR ATTEMPTS AT SUICIDE OR SERIOUS BODILY HARM OR OTHER CONDUCT DEMON-
 STRATING  THAT  SUCH  RESPONDENT  IS  DANGEROUS  TO  THEMSELF;  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, unless such petitioner  deter-
 mines that there is no probable cause for such filing.
   2.  A  POLICE  OFFICER, DEPUTY SHERIFF, OR DISTRICT ATTORNEY WHO WOULD
 OTHERWISE BE REQUIRED TO FILE AN APPLICATION UNDER THIS SECTION HAS  THE
 DISCRETION NOT TO FILE SUCH AN APPLICATION IF THE POLICE OFFICER, DEPUTY
 SHERIFF,  OR  DISTRICT  ATTORNEY CAN DETERMINE WITH REASONABLE CERTAINTY
 THAT THE RESPONDENT: (A) HAS PREVIOUSLY BEEN DEEMED CERTIFIED NOT  SUIT-
 ABLE  TO  POSSESS  A RIFLE OR SHOTGUN PURSUANT TO SUBDIVISION SIXTEEN OF
 SECTION 265.00 OF THE PENAL LAW; (B) IS A PERSON PRESENTLY SUBJECT TO AN
 EXTREME RISK PROTECTION ORDER; (C) IS A  PERSON  PRESENTLY  INCARCERATED
 WHOSE  EARLIEST  RELEASE  DATE IS NO LESS THAN ONE YEAR FROM THE DATE OF
 THE FILING OF THE PETITION; OR (D) IS A PERSON UNDER THE  AGE  OF  EIGH-
 TEEN, AND THE PETITION WOULD BE BASED ONLY UPON SUCH PERSON'S LIKELIHOOD
 TO ENGAGE IN CONDUCT POSING A THREAT OF HARM TO THEMSELF, AND THE PERSON
 DID  NOT THREATEN OR USE PHYSICAL FORCE DIRECTED AT  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 AMMUNITION POSSESSED BY ANYONE IN THE PERSON'S HOUSEHOLD.
   3. Such application and supporting documentation shall be filed in the
 supreme court in the county in which  the  respondent  resides.  IF  THE
 PETITIONER IS UNABLE TO IDENTIFY AN IN-STATE ADDRESS FOR THE RESPONDENT,
 THE APPLICATION AND DOCUMENTATION SHALL BE FILED IN THE SUPREME COURT IN
 ANY COUNTY WHERE THE CONDUCT ALLEGED IN THE PETITION OCCURRED. The chief
 administrator  of  the  courts  shall  adopt  forms that may be used for
 S. 260--A                           3
 
 purposes of such applications and  the  court's  consideration  of  such
 applications. Such application form shall ALLOW FOR AFFIRMATION PURSUANT
 TO RULE TWENTY-ONE HUNDRED SIX OF THIS CHAPTER AND 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. Subdivisions 1, 2, 3 and 8 of section 6342 of the civil  practice
 law  and  rules,  subdivisions  1, 3 and 8 as added by chapter 19 of the
 laws of 2019, and subdivision 2 as amended by chapter 450 of the laws of
 2025, are 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 THEMSELF AS MANIFESTED BY THREATS  OF  OR  ATTEMPTS  AT
 SUICIDE  OR SERIOUS BODILY HARM OR OTHER CONDUCT DEMONSTRATING THAT SUCH
 RESPONDENT IS DANGEROUS TO THEMSELF; OR (B) A SUBSTANTIAL RISK OF  PHYS-
 ICAL  HARM  TO OTHER PERSONS AS MANIFESTED BY HOMICIDAL OR OTHER VIOLENT
 BEHAVIOR BY WHICH OTHERS ARE PLACED IN REASONABLE FEAR OF SERIOUS  PHYS-
 ICAL HARM. Such application for a temporary order shall be determined in
 writing on the same day the application is filed.
   2.  In  determining  whether  grounds  for  a  temporary  extreme risk
 protection order exist, the court shall consider  any  relevant  factors
 including, but not limited to, the following acts of the respondent:
   (a)  a  threat  or  act  of violence or use of physical force directed
 toward self, the petitioner, or another person;
   (b) a violation or alleged violation of an order of protection;
   (c) any pending charge or conviction for an offense involving the  use
 of a weapon;
   (d)  the  reckless  use, display or brandishing of a firearm, rifle or
 shotgun;
   (e) any history of a violation of an extreme risk protection order;
   (f) evidence of recent or ongoing abuse of  controlled  substances  or
 alcohol;
   (g)  evidence  of  recent  acquisition of a firearm, rifle, shotgun or
 other deadly weapon or dangerous instrument, or any ammunition therefor;
 or
   (h) evidence of recent  acts  of  aggravated  cruelty  to  animals  as
 defined  in  section  three hundred fifty-three-a of the agriculture and
 markets law.
   In considering the factors under this  subdivision,  the  court  shall
 consider  the  time that has elapsed since the occurrence of such act or
 acts and the age of the person at the time of the occurrence of such act
 or acts.
   For the purposes of this subdivision, "recent" means  within  the  six
 months prior to the date the petition was filed.
   THE COURT SHALL NOT CONSIDER WHETHER A POLICE OFFICER, DEPUTY SHERIFF,
 OR  DISTRICT  ATTORNEY MAY HAVE HAD THE DISCRETION TO DECLINE TO FILE AN
 APPLICATION IN DETERMINING WHETHER GROUNDS FOR A TEMPORARY EXTREME  RISK
 PROTECTION ORDER EXIST.
 S. 260--A                           4
 
   3.  The application of the petitioner and supporting documentation, if
 any, shall set forth the factual basis  for  the  request  and  probable
 cause  for issuance of a temporary order. The court may conduct an exam-
 ination under oath of the petitioner and any witness the petitioner  may
 produce.  HEARSAY  EVIDENCE  SHALL  NOT BE EXCLUDED AND SHALL BE WEIGHED
 APPROPRIATELY.
   8.  A  law  enforcement  officer  serving  a  temporary  extreme  risk
 protection order shall request that the respondent immediately surrender
 to  the  officer  all  firearms, rifles and shotguns in the respondent's
 possession and the officer shall conduct any search permitted by law for
 such firearms. The law enforcement officer shall take possession of  all
 firearms,  rifles  and  shotguns that are surrendered, that are in plain
 sight, or that are discovered pursuant to a lawful search.  As  part  of
 the  order, the court may also direct a police officer OR DEPUTY SHERIFF
 to  search  for  firearms,  rifles  and  shotguns  in  the  respondent's
 possession  in  a  manner  consistent with the procedures of article six
 hundred ninety of the criminal procedure law.
   § 4. Subdivisions 1 and 2  and  paragraph  (d)  of  subdivision  3  of
 section 6343 of the civil practice law and rules, as added by chapter 19
 of the laws of 2019, are amended to read as follows:
   1. In accordance with this article, no sooner than three business days
 nor  later  than  six business days after service of a temporary extreme
 risk protection order and, alternatively, no  later  than  ten  business
 days  after service of an application under this article where no tempo-
 rary extreme risk protection order has been issued, UNLESS THE  RESPOND-
 ENT  WAIVES  THEIR  RIGHT TO A HEARING AND CONSENTS TO THE FINAL EXTREME
 RISK PROTECTION ORDER, the supreme court shall hold a  hearing,  IN  THE
 MANNER  OF  A  SUMMARY PROCEEDING, to determine whether to issue a final
 extreme risk protection order and, when applicable, whether  a  firearm,
 rifle  or shotgun surrendered by, or removed from, the respondent should
 be returned to the respondent. The respondent shall be entitled to  more
 than  six business days if a temporary extreme risk protection order has
 been issued and the respondent requests a  reasonable  period  of  addi-
 tional  time  to  prepare  for the hearing. Where no temporary order has
 been issued, the respondent may request, and the court may grant,  addi-
 tional  time  beyond the ten days to allow the respondent to prepare for
 the hearing.   UPON RECEIPT  OF  WAIVER  AND  CONSENT  THE  COURT  SHALL
 DISPENSE  WITH  A  HEARING  AND  PROMPTLY  ISSUE  THE FINAL EXTREME RISK
 PROTECTION ORDER.
   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 THEMSELF AS MANI-
 FESTED  BY  THREATS  OF OR ATTEMPTS AT SUICIDE OR SERIOUS BODILY HARM OR
 OTHER CONDUCT DEMONSTRATING THAT SUCH RESPONDENT IS DANGEROUS  TO  THEM-
 SELF;  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 petitioner,  any
 evidence  submitted  by the respondent, any testimony presented, and the
 report of the relevant law  enforcement  agency  submitted  pursuant  to
 subdivision  nine of section sixty-three hundred forty-two of this arti-
 cle. The court shall also consider the factors set forth in  subdivision
 two  of  section  sixty-three hundred forty-two of this article. HEARSAY
 S. 260--A                           5
 
 EVIDENCE SHALL NOT BE EXCLUDED AND SHALL BE WEIGHED  APPROPRIATELY.  THE
 COURT  SHALL  NOT CONSIDER WHETHER A POLICE OFFICER OR DISTRICT ATTORNEY
 MAY HAVE HAD THE DISCRETION TO DECLINE TO FILE AN APPLICATION IN  DETER-
 MINING WHETHER GROUNDS FOR AN EXTREME RISK PROTECTION ORDER EXIST.
   (d)  A law enforcement officer serving a final extreme risk protection
 order shall request that the respondent  immediately  surrender  to  the
 officer all firearms, rifles and shotguns in the respondent's possession
 and  the  officer  shall  conduct  any  search permitted by law for such
 firearms. The law enforcement  officer  shall  take  possession  of  all
 firearms,  rifles  and  shotguns that are surrendered, that are in plain
 sight, or that are discovered pursuant to a lawful search.  As  part  of
 the  order, the court may also direct a police officer OR DEPUTY SHERIFF
 to search for firearms, rifles and shotguns in a respondent's possession
 consistent with the procedures of article  six  hundred  ninety  of  the
 criminal procedure law.
   §  5.  Subdivision  1 of section   6344  of the civil practice law and
 rules, as added by chapter 19 of the laws of 2019, is amended to read as
 follows:
   1. When a law enforcement officer takes any firearm, rifle or  shotgun
 pursuant to a temporary extreme risk protection order or a final extreme
 risk  protection  order, the officer OR DEPUTY SHERIFF shall give to the
 person from whom such firearm, rifle or shotgun is taken  a  receipt  or
 voucher  for  the  property taken, describing the property in detail. In
 the absence of a person, the officer OR DEPUTY SHERIFF shall  leave  the
 receipt  or  voucher  in  the place where the property was found, mail a
 copy of the receipt or voucher, retaining proof of mailing, to the  last
 known  address  of  the  respondent  and, if different, the owner of the
 firearm, rifle or shotgun, and file a copy of such  receipt  or  voucher
 with the court. All firearms, rifles and shotguns in the possession of a
 law  enforcement  official  pursuant to this article shall be subject to
 the provisions of applicable law, including but not limited to  subdivi-
 sion six of section 400.05 of the penal law; provided, however, that any
 such  firearm, rifle or shotgun shall be retained and not disposed of by
 the law enforcement agency for at least two years unless legally  trans-
 ferred  by  the  respondent to an individual permitted by law to own and
 possess such firearm, rifle or shotgun.
   § 6. Section 6345 of the civil practice law and  rules,  as  added  by
 chapter 19 of the laws of 2019, is amended to read as follows:
   § 6345. Request for renewal of an extreme risk protection order. 1. If
 a  petitioner  believes  a  person subject to an extreme risk protection
 order continues to be 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 THEMSELF AS MANIFESTED BY
 THREATS  OF  OR  ATTEMPTS  AT  SUICIDE  OR  SERIOUS BODILY HARM OR OTHER
 CONDUCT DEMONSTRATING THAT SUCH RESPONDENT IS DANGEROUS TO THEMSELF;  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, such petitioner may, at any
 time within sixty days prior to the expiration of such existing  extreme
 risk  protection  order, initiate a request for a renewal of such order,
 setting forth the facts and circumstances necessitating the request. 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.  The  court  may issue a temporary extreme risk protection
 order in accordance with section sixty-three hundred forty-two  of  this
 S. 260--A                           6

 article, during the period that a request for renewal of an extreme risk
 protection order is under consideration pursuant to this section.
   2.  A  hearing held pursuant to this section shall be conducted in the
 supreme court, in accordance with  section  sixty-three  hundred  forty-
 three  of  this  article,  to  determine if a request for renewal of the
 order shall be granted. THE COURT SHALL NOT CONSIDER  WHETHER  A  POLICE
 OFFICER,   DEPUTY  SHERIFF,  OR  DISTRICT  ATTORNEY  MAY  HAVE  HAD  THE
 DISCRETION TO DECLINE TO FILE AN APPLICATION IN DETERMINING  WHETHER  TO
 RENEW  THE EXTREME RISK PROTECTION ORDER. The respondent shall be served
 with written notice of an application  for  renewal  a  reasonable  time
 before  the  hearing,  and  shall  be  afforded  an opportunity to fully
 participate in the hearing. The  court  shall  direct  service  of  such
 application  and the accompanying papers in the manner and in accordance
 with the protections for the petitioner set forth in subdivision six  of
 section sixty-three hundred forty-two of this article.
   §  7.  Subdivision  1  of  section  6346 of the civil practice law and
 rules, as added by chapter 19 of the laws of 2019, is amended to read as
 follows:
   1. A protection order issued pursuant to this article, and all records
 of any proceedings conducted pursuant to this article, shall  be  sealed
 upon  expiration  of  such order and the clerk of the court wherein such
 proceedings were conducted shall immediately notify the commissioner  of
 the  division of criminal justice services, the heads of all appropriate
 police AND SHERIFF departments, applicable licensing officers,  and  all
 other  appropriate  law  enforcement agencies that the order has expired
 and that the record of such protection order shall be sealed and not  be
 made  available  to  any person or public or private entity, except that
 such records shall be made available to:
   (a) the respondent or the respondent's designated agent;
   (b) courts in the unified court system;
   (c) police forces and departments having responsibility  for  enforce-
 ment  of  the  general  criminal  laws  of  the state, INCLUDING SHERIFF
 DEPARTMENTS;
   (d) any state or local officer or agency with responsibility  for  the
 issuance  of  licenses  to possess a firearm, rifle or shotgun, when the
 respondent has made application for such a license; and
   (e) any prospective employer of a police officer or peace  officer  as
 those  terms are defined in subdivisions thirty-three and thirty-four of
 section 1.20 of the criminal procedure law, in relation to  an  applica-
 tion  for  employment  as  a  police officer or peace officer; provided,
 however, that every person who is  an  applicant  for  the  position  of
 police  officer  or  peace officer shall be furnished with a copy of all
 records obtained under this subparagraph and afforded an opportunity  to
 make an explanation thereto.
   § 8. This act shall take effect immediately.