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A03661 Summary:

BILL NOA03661
 
SAME ASSAME AS S04824
 
SPONSORLavine
 
COSPNSRSimon, Seawright, Colton, Fahy, De La Rosa, Carroll, Abinanti
 
MLTSPNSRGalef
 
Ren Art 12 1211 to be Art 13 1311, add Art 12 1211 - 1215, Fam Ct Act
 
Relates to gun violence restraining orders; provides a procedure whereby family members may prohibit persons from owning or possessing firearms if the person poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control a firearm and a gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate.
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A03661 Actions:

BILL NOA03661
 
01/30/2017referred to judiciary
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A03661 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3661
 
SPONSOR: Lavine (MS)
  TITLE OF BILL: An act to amend the family court act, in relation to gun violence restraining orders   PURPOSE OF GENERAL IDEA OF BILL: This legislation would permit family members, and law enforcement offi- cials to seek a gun violence restraining order against an individual perceived to pose a certain level of threat to others and to themselves by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm and/or ammunition.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Article 12 of the family court act is renumbered to article 13, section 1211 is renumbered section 1311 and a new article 12 is added to include: Section 1212 specifies the process to which a tempo- rary emergency gun violence restraining order is issued as well as its requirements including a statement of grounds, the date and time the order expires, and the address of the superior court for the county in which the restrained party resides. Section 1213 provides the process for the issuance of an ex parte gun violence restraining order by a court when the subject of the petition poses a significant danger, in the near future, of personal injury to himself, herself or another by having his or her custody or control firearms and/or alternatives have been tried and found ineffective. Section 1214 describes the issuance of gun violence restraining orders issued after notice and the hearing where the petitioner has the burden of proving by clear and convincing evidence that both the subject of the petition pose a significant danger to himself, herself, or another by having in his or her possession firearms or ammunition, and that less restrictive alternatives have been tried and were inadequate or inappro- priate for the circumstance. Section 1215 concludes that every person who files for a petition know- ing the information in the petition to be false or with the intent to harass is guilty of a misdemeanor. Additionally, every person who owns or possesses a firearm or ammunition with knowledge that he or she is prohibited from doing so pursuant to sections 1212, 1213, 1214 of this article is guilty of a misdemeanor and prohibited from having in his or her custody or control a firearm or ammunition for a five year period, to commence upon the expiration of the existing gun violence restraining order.   JUSTIFICATION: Tragic incidents of gun violence have become shockingly prevalent in recent years. Mass shootings in schools, movie theaters, and other public places have attracted national attention and prompted legisla- tors, seeking preventative measures, to alter state, and national firearms laws. This law gives immediate family members the right to petition the court to issue a gun violence restraining order against an immediate family member once the petitioner is able to prove that alternative actions have been tried and failed and that the petitioned family member's behavior poses a threat to himself, herself, or others by having under his or her custody and control, owning, purchasing, possessing, or receiving a firearm and/or ammunition. Before the issuance of a gun violence restraining order the court will examine the evidence provided through witness oaths, petitioner avidavits, and possible patterns of violent acts or violent threats within the past 12 months, in order to effectively issue a gun violence restraining order that would be in effect for one year. This legislation will be an effective mechanism to further prevent violent gun related acts from being committee.   LEGISLATIVE HISTORY: New Bill.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the one hundred twentieth day after it shall have become law.
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A03661 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3661
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2017
                                       ___________
 
        Introduced  by M. of A. LAVINE, SIMON, SEAWRIGHT, COLTON, FAHY -- Multi-
          Sponsored by -- M. of A. GALEF  --  read  once  and  referred  to  the
          Committee on Judiciary
 
        AN  ACT  to  amend  the  family  court  act, in relation to gun violence
          restraining orders
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Article  12 of the family court act is renumbered article
     2  13, section 1211 is renumbered section 1311 and  a  new  article  12  is
     3  added to read as follows:
     4                                 ARTICLE 12
     5                       GUN VIOLENCE RESTRAINING ORDER
 
     6  Section 1211. General.
     7          1212. Temporary emergency gun violence restraining order.
     8          1213. Ex parte gun violence restraining order.
     9          1214. Gun  violence  restraining  order  issued after notice and
    10                  hearing.
    11          1215. Offenses.
    12    § 1211. General. 1. A gun violence restraining order is an  order,  in
    13  writing,  signed  by the court, prohibiting and enjoining a named person
    14  from having in his  or  her  custody  or  control,  owning,  purchasing,
    15  possessing, or receiving any firearms or ammunition. This article estab-
    16  lishes a civil restraining order process to accomplish that purpose.
    17    2.  The office of court administration shall prescribe the form of the
    18  petitions and orders and any other documents, and shall  promulgate  any
    19  rules of court, necessary to implement this article.
    20    3.  A petition for a gun violence restraining order shall describe the
    21  number, types, and locations of any firearms  and  ammunition  presently
    22  believed  by the petitioner to be possessed or controlled by the subject
    23  of the petition.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05908-01-7

        A. 3661                             2
 
     1    4. Nothing in this article shall  be  interpreted  to  require  a  law
     2  enforcement  agency  or a law enforcement officer to seek a gun violence
     3  restraining order in any case, including, but not limited to, in a  case
     4  in  which the agency or officer concludes, after investigation, that the
     5  criteria for issuance of a gun violence restraining order are not satis-
     6  fied.
     7    5.  Prior  to a hearing on the issuance, renewal, or termination of an
     8  order under section twelve hundred thirteen or twelve  hundred  fourteen
     9  of  this  article  the  court  shall  ensure  that  a  search warrant is
    10  conducted and shall keep information obtained from  a  search  conducted
    11  pursuant to this section confidential.
    12    6.  (a)  The  court  shall  notify  the  division  of criminal justice
    13  services when a gun  violence  restraining  order  has  been  issued  or
    14  renewed  under this article no later than one court day after issuing or
    15  renewing the order.
    16    (b) The court shall notify the division of criminal  justice  services
    17  when  a  gun violence restraining order has been dissolved or terminated
    18  under this article no later than five court  days  after  dissolving  or
    19  terminating the order. Upon receipt of either a notice of dissolution or
    20  a  notice  of termination of a gun violence restraining order, the divi-
    21  sion of criminal justice services shall, within fifteen  days,  document
    22  the updated status of any order issued under this article.
    23    (c)  The  notices required to be submitted to the division of criminal
    24  justice services pursuant to this section shall be submitted in an elec-
    25  tronic format, in a manner prescribed by the division.
    26    (d) When notifying the division of criminal justice services  pursuant
    27  to paragraph (a) or (b) of this subdivision, the court shall indicate in
    28  the  notice  whether  the person subject to the gun violence restraining
    29  order was present in court to be informed of the contents of  the  order
    30  or  if the person failed to appear. The person's presence in court shall
    31  constitute proof of service of notice of the terms of the order.
    32    (e) (1) Within one business day of service, a law enforcement  officer
    33  who  served  a  gun violence restraining order shall submit the proof of
    34  service directly into the database established under section two hundred
    35  twenty-one-a of the executive law, including his or  her  name  and  law
    36  enforcement  agency,  and  shall  transmit the original proof of service
    37  form to the issuing court.
    38    (2) Within one business day of receipt of proof of service by a person
    39  other than a law enforcement officer,  the  clerk  of  the  court  shall
    40  submit the proof of service of a gun violence restraining order directly
    41  into  the database established under section two hundred twenty-one-a of
    42  the executive law, including the name  of  the  person  who  served  the
    43  order.  If the court is unable to provide this notification to the divi-
    44  sion of criminal justice services by electronic transmission, the  court
    45  shall,  within one business day of receipt, transmit a copy of the proof
    46  of service to a local law enforcement agency. The local law  enforcement
    47  agency  shall  submit  the  proof  of service directly into the registry
    48  established under section two hundred twenty-one-a of the executive  law
    49  within one business day of receipt from the court.
    50    7.  (a)  A  person  subject to a gun violence restraining order issued
    51  pursuant to this article shall  not  have  in  his  or  her  custody  or
    52  control,  own,  purchase, possess, or receive any firearms or ammunition
    53  while that order is in effect.
    54    (b) (1) Upon issuance of  a  gun  violence  restraining  order  issued
    55  pursuant to this article, the court shall order the restrained person to
    56  surrender  to  the local law enforcement agency all firearms and ammuni-

        A. 3661                             3
 
     1  tion in the  restrained  person's  custody  or  control,  or  which  the
     2  restrained person possesses or owns.
     3    (2)  The  surrender ordered pursuant to subparagraph one of this para-
     4  graph shall occur by immediately surrendering all firearms  and  ammuni-
     5  tion  in  a safe manner, upon request of any law enforcement officer, to
     6  the control of the officer, after  being  served  with  the  restraining
     7  order.  A  law  enforcement  officer  serving a gun violence restraining
     8  order that indicates that the restrained person possesses  any  firearms
     9  or  ammunition  shall  request that all firearms and ammunition be imme-
    10  diately surrendered. Alternatively, if no  request  is  made  by  a  law
    11  enforcement  officer, the surrender shall occur within twenty-four hours
    12  of being served with the order, by either surrendering all firearms  and
    13  ammunition  in a safe manner to the control of the local law enforcement
    14  agency, or by selling all firearms and  ammunition  to  a  licensed  gun
    15  dealer.  The  law  enforcement  officer  or  licensed  gun dealer taking
    16  possession of any firearms or ammunition pursuant  to  this  subdivision
    17  shall issue a receipt to the person surrendering the firearm or firearms
    18  or  ammunition  or  both  at  the time of surrender. A person ordered to
    19  surrender all firearms  and  ammunition  pursuant  to  this  subdivision
    20  shall,  within  forty-eight  hours after being served with the order, do
    21  both of the following:
    22    (A) File with the court that issued the gun violence restraining order
    23  the original receipt showing  all  firearms  and  ammunition  have  been
    24  surrendered  to a local law enforcement agency or sold to a licensed gun
    25  dealer. Failure to timely file a receipt shall constitute a violation of
    26  the restraining order.
    27    (B) File a copy of the receipt described in clause (A) of this subpar-
    28  agraph with the law enforcement agency  that  served  the  gun  violence
    29  restraining  order.   Failure to timely file a copy of the receipt shall
    30  constitute a violation of the restraining order.
    31    (c) (1) Any firearms or ammunition surrendered to  a  law  enforcement
    32  officer  or  law  enforcement  agency  pursuant to this section shall be
    33  retained by the law enforcement agency until the expiration of  any  gun
    34  violence  restraining  order that has been issued against the restrained
    35  person.  Upon expiration of any order, any firearms or ammunition  shall
    36  be returned to the restrained person.
    37    (2)  A  restrained person who owns any firearms or ammunition that are
    38  in the custody of a law enforcement agency pursuant to this section  and
    39  who does not wish to have the firearm or firearms or ammunition returned
    40  is entitled to sell or transfer title of any firearms or ammunition to a
    41  licensed  dealer provided that the firearm or firearms or ammunition are
    42  otherwise legal to own or possess and the  restrained  person  otherwise
    43  has right to title of the firearm or firearms or ammunition.
    44    (d)  If  a person other than the restrained person claims title to any
    45  firearms or ammunition surrendered pursuant to this section, and  he  or
    46  she  is  determined by the law enforcement agency to be the lawful owner
    47  of the firearm or firearms or ammunition, the  firearm  or  firearms  or
    48  ammunition shall be returned to him or her.
    49    §  1212.  Temporary  emergency  gun violence restraining order. 1.   A
    50  temporary emergency gun violence restraining order may be issued  on  an
    51  ex parte basis only if a law enforcement officer asserts, and a judicial
    52  officer  finds,  that  there  is reasonable cause to believe both of the
    53  following:
    54    (a) The subject of the petition poses an immediate and present  danger
    55  of  causing personal injury to himself, herself, or another by having in

        A. 3661                             4
 
     1  his or her  custody  or  control,  owning,  purchasing,  possessing,  or
     2  receiving a firearm; and
     3    (b)  A temporary emergency gun violence restraining order is necessary
     4  to prevent personal injury to the subject of  the  petition  or  another
     5  because  less  restrictive alternatives either have been tried and found
     6  to be ineffective, or have been determined to be inadequate or  inappro-
     7  priate for the circumstances of the subject of the petition.
     8    2.  A temporary emergency gun violence restraining order issued pursu-
     9  ant to this section shall prohibit the  subject  of  the  petition  from
    10  having in his or her custody or control, owning, purchasing, possessing,
    11  or receiving, or attempting to purchase or receive, a firearm or ammuni-
    12  tion,  and  shall  expire  twenty-one  days  from  the date the order is
    13  issued.
    14    3. A temporary emergency gun violence restraining order is valid  only
    15  if it is issued by a judicial officer after making the findings required
    16  by subdivision one of this section and pursuant to a specific request by
    17  a law enforcement officer.
    18    4.  A  temporary emergency gun violence restraining order issued under
    19  this section shall include all of the following:
    20    (a) A statement of the grounds supporting the issuance of the order.
    21    (b) The date and time the order expires.
    22    (c) The address of the superior court for  the  county  in  which  the
    23  restrained party resides; and
    24    (d)  The  following  statement:  "To the restrained person: This order
    25  will last until the date and time  noted  above.  You  are  required  to
    26  surrender all firearms and ammunition that you own or possess in accord-
    27  ance  with  Article  12  of the Family Court Act and you may not have in
    28  your custody or control, own, purchase, possess, or receive, or  attempt
    29  to  purchase  or receive a firearm or ammunition, while this order is in
    30  effect. However, a more permanent gun violence restraining order may  be
    31  obtained  from  the  court. You may seek the advice of an attorney as to
    32  any matter connected with the order. The attorney  should  be  consulted
    33  promptly  so  that  the  attorney may assist you in any matter connected
    34  with the order."
    35    5. A law enforcement officer who requests a  temporary  emergency  gun
    36  violence restraining order shall do all of the following:
    37    (a)  If  the  order  is  obtained orally, memorialize the order of the
    38  court on the form approved by the office of court administration;
    39    (b) Serve the order on the restrained person, if the restrained person
    40  can reasonably be located;
    41    (c) File a copy of the order with the court  as  soon  as  practicable
    42  after issuance;
    43    (d)  Have  the  order  entered  into  the computer database system for
    44  protective  orders  maintained  by  the  division  of  criminal  justice
    45  services.
    46    6.  (a)  (1) Except as provided in subparagraph two of this paragraph,
    47  the petition for a temporary emergency gun  violence  restraining  order
    48  shall be obtained by submitting a written petition to the court.
    49    (2)  If time and circumstances do not permit the submission of a writ-
    50  ten petition, a temporary emergency gun violence restraining  order  may
    51  be issued in accordance with the procedures for obtaining an oral search
    52  warrant.
    53    (b)  The  presiding  judge  of  the supreme court of each county shall
    54  designate at least one judge, commissioner,  or  referee  who  shall  be
    55  reasonably available to issue temporary emergency gun violence restrain-
    56  ing orders when the family court is not in session.

        A. 3661                             5
 
     1    §  1213.  Ex  parte  gun  violence  restraining order. 1. (a) A family
     2  member of a person or a law enforcement  officer  may  file  a  petition
     3  requesting  that  the  court  issue an ex parte gun violence restraining
     4  order enjoining the subject of the petition from having in  his  or  her
     5  custody  or  control,  owning,  purchasing,  possessing,  or receiving a
     6  firearm or ammunition.
     7    (b) For the purposes of this section, "family  member"  shall  mean  a
     8  member  of  the  same  family  or  household as defined in section eight
     9  hundred twelve of this chapter.
    10    (c) A court may issue an ex parte gun violence  restraining  order  if
    11  the  petition,  supported  by an affidavit made in writing and signed by
    12  the petitioner under oath, or an oral statement taken pursuant to subdi-
    13  vision two of this section and any additional  information  provided  to
    14  the  court shows that there is a substantial likelihood that both of the
    15  following are true:
    16    (1) The subject of the petition poses a  significant  danger,  in  the
    17  near  future,  of  personal  injury  to  himself, herself, or another by
    18  having in his or her custody or control, owning, purchasing, possessing,
    19  or receiving a firearm as determined by considering the  factors  listed
    20  in subdivision two of this section.
    21    (2) An ex parte gun violence restraining order is necessary to prevent
    22  personal  injury  to the subject of the petition or another because less
    23  restrictive alternatives either have been tried and found to be ineffec-
    24  tive, or are inadequate or inappropriate for the  circumstances  of  the
    25  subject of the petition.
    26    (d) An affidavit supporting a petition for the issuance of an ex parte
    27  gun  violence  restraining  order  shall  set forth the facts tending to
    28  establish the grounds of the petition, or the reason for believing  that
    29  they exist.
    30    (e)  An ex parte order under this section shall be issued or denied on
    31  the same day that the petition is submitted to  the  court,  unless  the
    32  petition  is  filed  too  late in the day to permit effective review, in
    33  which case the order shall be issued or denied on the next day of  judi-
    34  cial business in sufficient time for the order to be filed that day with
    35  the clerk of the court.
    36    2.  (a)  (1)  The  court,  before  issuing  an  ex  parte gun violence
    37  restraining order, shall examine on oath, the petitioner and any witness
    38  the petitioner may produce.
    39    (2) In lieu of examining the petitioner and any witness the petitioner
    40  may produce, the court may require the petitioner  and  any  witness  to
    41  submit a written affidavit signed under oath.
    42    (b)  (1) In determining whether grounds for a gun violence restraining
    43  order exist, the court shall consider all evidence of the following:
    44    (A) A recent threat of violence or act of violence by the  subject  of
    45  the petition directed toward another.
    46    (B)  A  recent threat of violence or act of violence by the subject of
    47  the petition directed toward himself or herself.
    48    (C) A violation of an emergency order of protection that is in  effect
    49  at the time the court is considering the petition.
    50    (D) A recent violation of an unexpired order of protection.
    51    (E)  A  pattern  of  violent  acts  or violent threats within the past
    52  twelve months, including, but not limited to,  threats  of  violence  or
    53  acts of violence by the subject of the petition directed toward himself,
    54  herself, or another.
    55    (2)  In  determining  whether  grounds  for a gun violence restraining
    56  order exist, the court may consider any other evidence of  an  increased

        A. 3661                             6
 
     1  risk for violence, including, but not limited to, evidence of any of the
     2  following:
     3    (A)  The  unlawful  and  reckless  use,  display,  or brandishing of a
     4  firearm by the subject of the petition.
     5    (B) The history of use, attempted use, or threatened use  of  physical
     6  force by the subject of the petition against another person.
     7    (C)  Any  prior  arrest  of  the  subject of the petition for a felony
     8  offense.
     9    (D) Any history of a violation by the subject of the  petition  of  an
    10  emergency order of protection.
    11    (E)  Any  history  of a violation by the subject of the petition of an
    12  order of protection.
    13    (F) Documentary  evidence,  including,  but  not  limited  to,  police
    14  reports  and  records of convictions, of either recent criminal offenses
    15  by the subject of the petition that  involve  controlled  substances  or
    16  alcohol  or  ongoing  abuse  of  controlled substances or alcohol by the
    17  subject of the petition.
    18    (G) Evidence of recent acquisition of firearms, ammunition,  or  other
    19  deadly weapons.
    20    (3)  For  the purposes of this subdivision, "recent" shall mean within
    21  the six months prior to the date the petition was filed.
    22    (c) If the court determines that grounds to  issue  an  ex  parte  gun
    23  violence  restraining  order  exist,  it  shall  issue  an  ex parte gun
    24  violence restraining order that prohibits the subject  of  the  petition
    25  from  having  in  his  or  her  custody  or control, owning, purchasing,
    26  possessing, or receiving,  or  attempting  to  purchase  or  receive,  a
    27  firearm  or  ammunition,  and expires no later than twenty-one days from
    28  the date of the order.
    29    3. (a) An ex parte gun violence restraining order  issued  under  this
    30  section shall include all of the following:
    31    (1) A statement of the grounds supporting the issuance of the order.
    32    (2) The date and time the order expires.
    33    (3) The address of the superior court in which any responsive pleading
    34  should be filed.
    35    (4) The date and time of the scheduled hearing.
    36    (5)  The following statement: "To the restrained person: This order is
    37  valid until the expiration date and time noted above. You  are  required
    38  to  surrender  all  firearms  and  ammunition that you own or possess in
    39  accordance with Article 12 of the Family Court Act and you may not  have
    40  in  your  custody  or  control,  own,  purchase, possess, or receive, or
    41  attempt to purchase or receive a firearm or ammunition, while this order
    42  is in effect. A hearing will be held on the date and at the  time  noted
    43  above  to  determine  if a more permanent gun violence restraining order
    44  should be issued.  Failure to appear at that hearing  may  result  in  a
    45  court making an order against you that is valid for a year. You may seek
    46  the advice of an attorney as to any matter connected with the order. The
    47  attorney  should  be  consulted promptly so that the attorney may assist
    48  you in any matter connected with the order."
    49    (b) (1) An ex parte gun violence restraining order shall be personally
    50  served on the restrained person by a law  enforcement  officer,  or  any
    51  person  who  is  at  least  eighteen years of age and not a party to the
    52  action, if the restrained person can reasonably be located.
    53    (2) When serving a gun violence restraining order, a  law  enforcement
    54  officer  shall  inform  the  restrained  person of the hearing scheduled
    55  pursuant to subdivision four of this section.

        A. 3661                             7
 
     1    4. Within twenty-one days after the date  on  the  order,  before  the
     2  court  that  issued the order or another court in the same jurisdiction,
     3  the court shall hold a hearing pursuant to section twelve hundred  four-
     4  teen  of  this  article to determine if a gun violence restraining order
     5  should be issued.
     6    §  1214.  Gun violence restraining order issued after notice and hear-
     7  ing. 1. (a) A family member of a person or a law enforcement officer may
     8  request that a court, after notice and a hearing, issue a  gun  violence
     9  restraining  order  enjoining the subject of the petition from having in
    10  his or her  custody  or  control,  owning,  purchasing,  possessing,  or
    11  receiving a firearm or ammunition for a period of one year.
    12    (b)  For  the  purposes  of this section, "family member" shall mean a
    13  member of the same family or  household  as  defined  in  section  eight
    14  hundred twelve of this chapter.
    15    2.  In  determining  whether to issue a gun violence restraining order
    16  under this section, the court shall consider evidence of the facts iden-
    17  tified in subparagraph one  of  paragraph  (b)  of  subdivision  two  of
    18  section  twelve  hundred  thirteen  of this article and may consider any
    19  other evidence of an increased risk for  violence,  including,  but  not
    20  limited  to,  evidence  of  the  facts identified in subparagraph two of
    21  paragraph (b) of subdivision two of section twelve hundred  thirteen  of
    22  this article.
    23    3.  (a)  At the hearing, the petitioner shall have the burden of prov-
    24  ing, by clear and convincing evidence, that both of  the  following  are
    25  true:
    26    (1)  The  subject  of the petition, or a person subject to an ex parte
    27  gun violence restraining  order,  as  applicable,  poses  a  significant
    28  danger  of  personal injury to himself, herself, or another by having in
    29  his or her  custody  or  control,  owning,  purchasing,  possessing,  or
    30  receiving a firearm or ammunition.
    31    (2)  A gun violence restraining order is necessary to prevent personal
    32  injury to the subject of the petition, or the person subject  to  an  ex
    33  parte  gun violence restraining order, as applicable, or another because
    34  less restrictive alternatives either have been tried  and  found  to  be
    35  ineffective, or are inadequate or inappropriate for the circumstances of
    36  the  subject  of  the petition, or the person subject to an ex parte gun
    37  violence restraining order, as applicable.
    38    (b) (1) If the court finds that there is clear and convincing evidence
    39  to issue a gun violence restraining order, the court shall issue  a  gun
    40  violence  restraining  order  that prohibits the subject of the petition
    41  from having in his  or  her  custody  or  control,  owning,  purchasing,
    42  possessing,  or  receiving,  or  attempting  to  purchase  or receive, a
    43  firearm or ammunition.
    44    (2) If the court finds that there is not clear and convincing evidence
    45  to support the issuance of a gun violence restraining order,  the  court
    46  shall  dissolve  any  temporary  emergency  or  ex  parte  gun  violence
    47  restraining order then in effect.
    48    (c) The gun violence restraining order issued under this section shall
    49  have a duration of one year, subject to termination by further order  of
    50  the court at a hearing held pursuant to subdivision four of this section
    51  and  renewal  by further order of the court pursuant to subdivision five
    52  of this section.
    53    4. (a) A gun violence restraining order issued pursuant to this  chap-
    54  ter shall include all of the following:
    55    (1) A statement of the grounds supporting the issuance of the order.
    56    (2) The date and time the order expires.

        A. 3661                             8
 
     1    (3)  The  address  of  the  superior court for the county in which the
     2  restrained party resides.
     3    (4)  The  following  statement:  "To the restrained person: This order
     4  will last until the date and time noted above. If you have not  done  so
     5  already,  you must surrender all firearms and ammunition that you own or
     6  possess in accordance with Article 12 of the Family Court Act.  You  may
     7  not have in your custody or control, own, purchase, possess, or receive,
     8  or  attempt  to  purchase or receive a firearm or ammunition, while this
     9  order is in effect. Pursuant to section 1214 of the  Family  Court  Act,
    10  you have the right to request one hearing to terminate this order at any
    11  time during its effective period. You may seek the advice of an attorney
    12  as to any matter connected with the order."
    13    (b)  When the court issues a gun violence restraining order under this
    14  article, the court shall inform the restrained person that he or she  is
    15  entitled  to one hearing to request a termination of the order, pursuant
    16  to subdivision five of this section, and shall  provide  the  restrained
    17  person with a form to request a hearing.
    18    5.  (a)  A  person  subject to a gun violence restraining order issued
    19  under this section may submit one written request at any time during the
    20  effective period of the order for a hearing to terminate the order.
    21    (b) If the court finds after the hearing that there is no longer clear
    22  and convincing evidence to believe: (1) that the person poses a  signif-
    23  icant  danger,  in  the  near  future,  of  personal  injury to himself,
    24  herself, or another by having in his or her custody or control,  owning,
    25  purchasing,  possessing,  or  receiving  a  firearm  as determined under
    26  section twelve hundred thirteen of this article; or
    27    (2) that a gun violence restraining  order  is  necessary  to  prevent
    28  personal  injury  to  the  subject of the petition or another, the court
    29  shall terminate the order.
    30    6. (a) (1) A family member of a restrained person or a law enforcement
    31  officer may request a renewal of a gun violence restraining order at any
    32  time within the three months before the expiration  of  a  gun  violence
    33  restraining order.
    34    (2) For the purposes of this subdivision, "family member" shall mean a
    35  member  of  the  same  family  or  household as defined in section eight
    36  hundred twelve of this chapter.
    37    (b) A court may, after notice and a  hearing,  renew  a  gun  violence
    38  restraining order issued under this section if the petitioner proves, by
    39  clear  and convincing evidence, that the subject of the petition poses a
    40  significant danger, in the near future, of personal injury  to  himself,
    41  herself,  or another by having in his or her custody or control, owning,
    42  purchasing, possessing, or receiving a firearm as determined by  consid-
    43  ering  the  factors listed in subdivision two of this section; or that a
    44  gun violence restraining order is necessary to prevent  personal  injury
    45  to  the  subject  of  the  petition  or another because less restrictive
    46  alternatives either have been tried and found to be ineffective, or  are
    47  inadequate  or inappropriate for the circumstances of the subject of the
    48  petition.
    49    (c) In determining whether to renew a gun violence  restraining  order
    50  issued  under  this  section,  the  court shall consider evidence of the
    51  facts identified in subparagraph one of paragraph (b) of subdivision two
    52  of section twelve hundred thirteen of this article and may consider  any
    53  other  evidence  of  an  increased risk for violence, including, but not
    54  limited to, evidence of the facts  identified  in  subparagraph  two  of
    55  paragraph  (b)  of subdivision two of section twelve hundred thirteen of
    56  this article.

        A. 3661                             9
 
     1    (d) At the hearing, the petitioner shall have the burden  of  proving,
     2  by clear and convincing evidence, that the subject of the petition poses
     3  a significant danger, in the near future, of personal injury to himself,
     4  herself,  or another by having in his or her custody or control, owning,
     5  purchasing,  possessing, or receiving a firearm as determined by consid-
     6  ering the factors listed in subdivision two of this section; or  that  a
     7  gun  violence  restraining order is necessary to prevent personal injury
     8  to the subject of the  petition  or  another  because  less  restrictive
     9  alternatives  either have been tried and found to be ineffective, or are
    10  inadequate or inappropriate for the circumstances of the subject of  the
    11  petition.
    12    (e)  If  the  renewal  petition  is  supported by clear and convincing
    13  evidence, the court shall  renew  the  gun  violence  restraining  order
    14  issued under this section.
    15    (f) The renewal of a gun violence restraining order issued pursuant to
    16  this  section  shall have a duration of one year, subject to termination
    17  by further order of the court at a hearing held pursuant to  subdivision
    18  five  of  this section and further renewal by further order of the court
    19  pursuant to this subdivision.
    20    (g) A gun violence restraining order renewed pursuant to this  section
    21  shall include the following information:
    22    (1) A statement of the grounds supporting the issuance of the order.
    23    (2) The date and time the order expires.
    24    (3) The address of the superior court in which any responsive pleading
    25  should be filed.
    26    (4) The date and time of the scheduled hearing.
    27    (5)  The following statement: "To the restrained person: This order is
    28  valid until the expiration date and time noted above. You  are  required
    29  to  surrender  all  firearms  and  ammunition that you own or possess in
    30  accordance with Article 12 of the Family Court Act and you may not  have
    31  in  your  custody  or  control,  own,  purchase, possess, or receive, or
    32  attempt to purchase or receive a firearm or ammunition, while this order
    33  is in effect. A hearing will be held on the date and at the  time  noted
    34  above  to  determine  if a more permanent gun violence restraining order
    35  should be issued.  Failure to appear at that hearing  may  result  in  a
    36  court making an order against you that is valid for a year. You may seek
    37  the advice of an attorney as to any matter connected with the order. The
    38  attorney  should  be  consulted promptly so that the attorney may assist
    39  you in any matter connected with the order."
    40    7. Any hearing held pursuant to this section may be continued  upon  a
    41  showing  of  good  cause.    Any  existing order issued pursuant to this
    42  subdivision shall remain in full force and effect during the  period  of
    43  continuance.
    44    8.  If  a person subject to a gun violence restraining order issued or
    45  renewed pursuant to this section was not present in court  at  the  time
    46  the  order  was  issued  or  renewed, the gun violence restraining order
    47  shall be personally served on the restrained person by a law enforcement
    48  officer or any person who is at least eighteen years of age  and  not  a
    49  party to the action, if the restrained person can reasonably be located.
    50    § 1215. Offenses. 1. Every person who files a petition for an ex parte
    51  gun  violence restraining order pursuant to section twelve hundred thir-
    52  teen of this article, or a gun violence restraining order  issued  after
    53  notice and a hearing pursuant to section twelve hundred fourteen of this
    54  article, knowing the information in the petition to be false or with the
    55  intent to harass, is guilty of a misdemeanor.

        A. 3661                            10
 
     1    2.  Every  person  who  owns or possesses a firearm or ammunition with
     2  knowledge that he or she is prohibited from  doing  so  by  a  temporary
     3  emergency  gun  violence  restraining  order  issued pursuant to section
     4  twelve hundred  twelve  of  this  article,  an  ex  parte  gun  violence
     5  restraining  order issued pursuant to section twelve hundred thirteen of
     6  this article, or a gun violence restraining order  issued  after  notice
     7  and a hearing issued pursuant to section twelve hundred fourteen of this
     8  article,  is guilty of a misdemeanor and shall be prohibited from having
     9  in his or her custody or control,  owning,  purchasing,  possessing,  or
    10  receiving, or attempting to purchase or receive, a firearm or ammunition
    11  for  a five-year period, to commence upon the expiration of the existing
    12  gun violence restraining order.
    13    § 2. This act shall take effect on the one hundred twentieth day after
    14  it shall have become a law.
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