2023 New York Laws › CVP - Civil Practice Law and Rules › Article 63-A - Extreme Risk Protection Orders › 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; or
(g) evidence of recent acquisition of a  firearm,  rifle,  shotgun  or
other deadly weapon or dangerous instrument, or any ammunition therefor.
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,  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. The court  also  shall  promptly  notify  such
persons  and  agencies  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.