N.Y. Civil Practice Law & Rules § 6342: Issuance of a temporary extreme risk protection order

§ 6342. Issuance of a temporary extreme risk protection order. 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. 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.

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

examination under oath of the petitioner and any witness the petitioner

may produce.

4. A temporary extreme risk protection order, if warranted, shall

issue in writing, and shall include:

(a) a statement of the grounds found for the issuance of the order;

(b) the date and time the order expires;

(c) the address of the court that issued the order;

(d) a statement to the respondent: (i) directing that the respondent

may not purchase, possess or attempt to purchase or possess a firearm,

rifle or shotgun while the order is in effect and that any firearm,

rifle or shotgun possessed by such respondent shall be promptly

surrendered to any authorized law enforcement official in the same

manner as set forth in subdivision five of section 530.14 of the

criminal procedure law;

(ii) informing the respondent that the court will hold a hearing no

sooner than three nor more than six business days after service of the

temporary order, to determine whether a final extreme risk protection

order will be issued and the date, time and location of such hearing,

provided that the respondent shall be entitled to more than six days

upon request in order to prepare for the hearing; and (iii) informing

the respondent the he or she may seek the advice of an attorney and that

an attorney should be consulted promptly; and

(e) a form to be completed and executed by the respondent at the time

of service of the temporary extreme risk protection order which elicits

a list of all firearms, rifles and shotguns possessed by the respondent

and the particular location of each firearm, rifle or shotgun listed.

5. If the application for a temporary extreme risk protection order is

not granted, the court shall notify the petitioner and, unless the

application is voluntarily withdrawn by the petitioner, nonetheless

schedule a hearing on the application for a final extreme risk

protection order. Such hearing shall be scheduled to be held promptly,

but in any event no later than ten business days after the date on which

such application is served on the respondent, provided, however, that

the respondent may request, and the court may grant, additional time to

allow the respondent to prepare for the hearing. A notice of such

hearing shall be prepared by the court and shall include the date and

time of the hearing, the address of the court, and the subject of the

hearing.

6. (a) The court shall, in the manner specified in paragraph (b) of

this subdivision, arrange for prompt service of a copy of the temporary

extreme risk protection order, if any, the application therefor and, if

separately applied for or if a temporary extreme risk protection order

was not granted, the application for an extreme risk protection order,

any notice of hearing prepared by the court, along with any associated

papers including the petition and any supporting documentation,

provided, that the court may redact the address and contact information

of the petitioner from such application and papers where the court finds

that disclosure of such address or other contact information would pose

an unreasonable risk to the health or safety of the petitioner.

(b) The court shall provide copies of such documents to the

appropriate law enforcement agency serving the jurisdiction of the

respondent's residence with a direction that such documents be promptly

served, at no cost to the petitioner, on the respondent; provided,

however, that the petitioner may voluntarily arrange for service of

copies of such order and associated papers through a third party, such

as a licensed process server.

7. (a) The court shall notify the division of state police, any other

law enforcement agency with jurisdiction, all applicable licensing

officers, the statewide computerized registry of orders of protection

and warrants of arrest referred to in section two hundred twenty-one-a

of the executive law, and the division of criminal justice services of

the issuance of a temporary extreme risk protection order and provide a

copy of such order no later than the next business day after issuing the

order to such persons or agencies or registry. The court also shall

promptly notify such persons and agencies and registry and provide a

copy of any order amending or revoking such protection order or

restoring the respondent's ability to own or possess firearms, rifles or

shotguns no later than the next business day after issuing the order to

restore such right to the respondent. The court also shall report such

demographic data as required by the state division of criminal justice

services at the time such order is transmitted thereto. 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

services.

(b) Upon receiving notice of the issuance of a temporary extreme risk

protection order, the division of criminal justice services shall

immediately report the existence of such order to the federal bureau of

investigation to allow the bureau to identify persons prohibited from

purchasing firearms, rifles or shotguns. The division shall also

immediately report to the bureau the expiration of any such protection

order, any court order amending or revoking such protection order or

restoring the respondent's ability to purchase a firearm, rifle or

shotgun.

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 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.

9. Upon issuance of a temporary extreme risk protection order, or upon

setting a hearing for a final extreme risk protection order where a

temporary order is denied or not requested, the court shall direct the

law enforcement agency having jurisdiction to conduct a background

investigation and report to the court and, subject to any appropriate

redactions to protect any person, each party regarding whether the

respondent:

(a) has any prior criminal conviction for an offense involving

domestic violence, use of a weapon, or other violence;

(b) has any criminal charge or violation currently pending against him

or her;

(c) is currently on parole or probation;

(d) possesses any registered firearms, rifles or shotguns; and

(e) has been, or is, subject to any order of protection or has

violated or allegedly violated any order of protection.