NY Domestic Violence Involving Guns
NY Domestic Violence Involving Guns
NY Domestic Violence Involving Guns
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FACTS ABOUT DOMESTIC VIOLENCE AND FIREARMS
- The mere presence of a firearm can threaten, intimidate, psychologically abuse, and force compliance on a partner.
- One-third of women and one-quarter of men are victims of physical violence at the hands of an intimate partner in their lifetime.
- More than 20 people in the U.S. are abused by their intimate partners each minute.
- Between 2000 and 2007, the FBI’s supplementary homicide data indicated 961 homicides involving family members. Research suggests that virtually all familicides — the homicides of families — are carried out with firearms.
- In America, 60% of mass shooting events between 2014 and 2019 were either domestic violence attacks or perpetrated by those with a history of domestic violence.
- Femicide — the homicide of women — is the leading cause of death in the U.S. among Black women aged 14 to 45 years. Black women are also twice as likely to be killed by a spouse, and four times more likely to be killed by a dating partner, than white women.
- Between 2004 and 2014, nearly 58% of Asian femicide victims over the age of 18 were killed in intimate partner violence homicides.
- One in three Latinas has experienced domestic violence in their lifetimes. Latina women also experience the highest rate of domestic violence-related femicides of any ethnic or racial group.
- The murder rate for Indigenous women is ten times the national average.
- From 2017 to 2020, 72% of transgender American homicide victims lost their lives due to gun violence.
- Among women who did call the police, one-third said they felt less safe after the subsequent intervention.
- From March to July of 2020, the FBI completed a staggering 17.3 million background checks — 5.5 million more than the same period in 2019.
- Despite increased sales and the risk of escalation in homes with guns, there are no federal firearm prohibitions for dating partners convicted of misdemeanor crimes of violence or misdemeanor stalking crimes.
- Studies show a 16% decrease in intimate partner homicides in states with removal laws.
NY Misdemeanor Conviction Prohibits Access to Guns
New York law does not explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.
New York prohibits persons convicted of specific domestic violence-related misdemeanors from obtaining a license to purchase or possess a handgun, assault weapon, or long guns of certain dimensions, thereby prohibiting these persons from possessing these weapons. NY state law also prohibits persons with select domestic violence misdemeanor convictions from possessing long guns.
New York authorizes courts to prohibit a defendant from purchasing or possessing firearms, and to suspend any existing firearm licenses in a defendant’s name in cases where the defendant is charged with (but not yet convicted of) certain domestic violence misdemeanors. In addition, the court must suspend or revoke defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.
Any court that is issuing a sentence for domestic violence or another violent crime may also issue an order of protection or temporary order of protection. If the court issues such an order, and the crime is a felony or serious offense, the court must revoke any firearm license possessed by the defendant, order the defendant ineligible for a license, and order the immediate surrender of any firearms possessed or owned. In addition, the court must suspend or revoke the defendant’s firearms license and order the immediate surrender of firearms where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person for whose protection the protection order is issued.
Federal law prohibits possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. A 2011 New York law establishes a procedure to be used in trials for certain violent misdemeanors to determine whether the crime qualifies as domestic violence under the federal definition of that term. When a defendant has been charged with one of a list of crimes, prosecutors may serve a notice alleging that the defendant and the victim had the requisite domestic relationship. Upon conviction, the court must notify the defendant that he or she is entitled to a hearing on that allegation. At such a hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is related or situated to the victim in the manner alleged in the notice. If the requisite domestic relationship is found, the clerk of the court must send a copy of the written determination in a report of the conviction to the Division of Criminal Justice Services, who then reports the determination to the FBI (which maintains the database used for firearm purchaser background checks).
NY PROTECTIVE ORDER PROHIBITS ACCESS TO GUNS
In certain circumstances; New York prohibits a person subject to a domestic violence protective order or an ex parte domestic violence protective order (the “respondent”) from having a firearms license, and requires the revocation of any existing firearms license in the name of the respondent. More specifically, when a domestic violence protective order is issued, the court must revoke a license, order the respondent ineligible for a license and order the immediate surrender of any firearms owned or possessed by respondent, if the court finds that the conduct leading to an order of protection involved:
– Infliction of physical injury;
– The use or threatened use of a deadly weapon; or
– Behavior constituting a violent felony offense.
When a temporary order of protection is issued to protect a victim during a pending criminal action, or in a family court proceeding prior to a final protective order, a court must suspend a firearm license, order the respondent ineligible for a license and order the immediate surrender of all firearms possessed or owned by the respondent, if the court has good cause to believe that the defendant has:
– A prior conviction of a violent felony;
– Previously willfully failed to obey a prior order of protection, and the failure involved the infliction of physical injury, the use or threatened use of a deadly weapon, or behavior constituting any violent felony offense; or
– A prior conviction of stalking in the first, second, third or fourth degree.
In addition, a court issuing a domestic violence protective order or a temporary order of protection or finding that a respondent has willfully failed to obey a domestic violence order of protection must revoke or suspend the his or her firearms license, order the him or her ineligible for a future license, and order the immediate surrender of all firearms owned or possessed by the respondent, if the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person(s) for whose protection the order was issued.
When a respondent is ruled to have willfully failed to obey a domestic violence order of protection or temporary order of protection, the court must revoke any existing firearms license held by the respondent , order the respondent ineligible for a license, and order the immediate surrender of any or all firearms owned or possessed by the respondent if the failure to obey involved:
– Serious physical injury;
– Use or threatened use of deadly weapons;
– Behavior constituting a violent felony offense; or
– Behavior constituting stalking in the first, second, third or fourth degrees.
When a NY Family Court issues an order of protection, temporary order of protection, or when such orders are violated, the court must make a determination regarding the suspension or revocation of a firearms license and the surrender of firearms, in accordance with the above principles.
If you are the victim of domestic violence, call Friedman & Ranzenhofer, PC Attorneys at (585) 484-7432 .
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