Orders of Protection, Firearms, and Pistol Permits in New York
Reviewed for legal accuracy by Pieter G. Weinrieb, Esq. · Admitted NY 2005
An order of protection does not automatically cost you your guns. The court has to make a specific finding first, and that distinction decides a great many of these cases.
Does an Order of Protection Automatically Take Your Guns?
No. The court has to make one of the findings Family Court Act 842-a requires. A bare order of protection, without one of those findings, does not support a surrender directive or a licensing consequence.
That is not a technicality people can rely on loosely, and it is not a reason to relax. In practice the findings are made often. But it matters, because it means firearm relief is something the court has to decide, on the record, and something a respondent can be heard on.
Two Appellate Division decisions make the point. In Matter of Schoenl v Schoenl, the Fourth Department, which is the appellate court for Erie and Niagara Counties, held that firearm restrictions were not warranted under 842-a absent findings that the conduct involved injury, weapon use or threat, violent felony behavior, or a substantial risk of unlawful firearm use. In Matter of Rhoda v Avery, the Second Department held a surrender directive improper where the Family Court had neither made nor supported the findings 842-a requires.
The rest of this page is about which findings trigger what, and in what posture.
What Happens on a Temporary Order of Protection
At the temporary stage the statutory consequence is suspension of a firearms license, not revocation. Family Court Act 842-a makes suspension mandatory on either of two predicates.
The history predicate. The court must suspend where it has information giving it good cause to believe that the respondent has a prior conviction for a violent felony, a prior stalking conviction, or a prior willful violation of an order of protection. A prior willful violation only counts if that violation itself involved physical injury, the use or threatened use of a deadly weapon or dangerous instrument, or conduct amounting to a violent felony.
The substantial-risk predicate. The court must also suspend where it finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the protected person or persons.
Note where the discretion actually lives. The court decides whether the information gives good cause, and whether the evidence supports a substantial-risk finding. Those are judgment calls. But once either finding is made, suspension and immediate surrender follow as a statutory command, not as a choice.
What Happens on a Final Order of Protection
At the final stage the statute escalates from suspension to revocation.
Revocation is mandatory where the court finds that the conduct underlying the order of protection involved physical injury, the use or threatened use of a deadly weapon or dangerous instrument, or behavior constituting a violent felony offense. The respondent also becomes ineligible for a license.
“Physical injury” here carries its Penal Law 10.00(9) meaning, and it is a lower threshold than serious physical injury. In David FF. v Isis GG., the Third Department confirmed that a finding of physical injury triggers mandatory revocation, ineligibility and surrender under 842-a(2)(a).
Separately, where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully, it must impose one of two consequences: revoke the license, or suspend it. The trigger is mandatory in effect; what is left to the court is the choice between the two remedies.
Suspension Is Not Revocation
The two words get used interchangeably in conversation and they are not the same thing.
A suspension under 842-a remains in effect for the life of the temporary or final order of protection, unless the order is modified or vacated. It is tied to the order’s duration. A revocation ends the license.
Penal Law 400.00 supplies the licensing consequences that sit on top of the Family Court’s ruling, and it does so in three ways. A person under a Family Court Act 842-a suspension or ineligibility order does not meet the eligibility criteria for a license. Penal Law 400.00(11) recognizes 842-a as a basis on which a license may be suspended or revoked. And once suspension or revocation occurs, 400.00 requires surrender of the license and of all firearms, rifles and shotguns to the appropriate law enforcement agency.
The two statutes are meant to be read together rather than as duplicates. Family Court Act 842-a answers when the Family Court must or may act. Penal Law 400.00 answers what that action does to licensing status statewide, and what has to be handed over.
What Surrender Actually Looks Like
When the court directs surrender, it is immediate, and it is not negotiable while the order stands.
The surrender that 842-a directs is treated as voluntary for purposes of the Penal Law’s surrender safe-harbor provision. Disposition of the surrendered weapons is governed by Penal Law 400.05, and a criminal court may order their return when a suspension terminates.
A few practical points that come up constantly and that the statute does not resolve for you:
- Get a receipt and keep it. You will need an accurate inventory later, and reconstructing one from memory a year on is a poor position to be in.
- Firearms in the home that belong to someone else. This is a real problem in shared households and it needs to be raised with the court and with counsel rather than solved informally.
- Do not transfer guns to a friend or relative to get ahead of an order. Whatever the intention, this creates a second and worse problem.
- Do not assume the order’s expiration returns anything by itself. See below.
If the Order Is Violated
A willful violation carries its own firearm consequences under Family Court Act 846-a, separate from anything 842-a did at the outset.
Where the willful failure to obey involves violent conduct amounting to menacing, reckless endangerment, assault or attempted assault, the court may immediately revoke a license and arrange immediate surrender. Where it involves physical injury, or the use or threatened use of a deadly weapon or dangerous instrument, revocation, surrender and disposal are mandatory.
The mechanics of a violation proceeding, on either side, are covered separately on violating an order of protection in New York Family Court.
The Federal Rule, and Why an Ex Parte Order Usually Does Not Trigger It
Federal law adds a separate firearms disability, and its scope is narrower than most people assume.
Under 18 U.S.C. 922(g)(8), a person subject to a qualifying protection order may not possess, receive, ship or transport firearms or ammunition. The disability lasts only while the person remains subject to the order, and it reaches ammunition as well as firearms.
An order only qualifies if it meets three requirements. It must have been issued after a hearing of which the respondent had actual notice and at which the respondent had an opportunity to participate. It must restrain the respondent from harassing, stalking, threatening or similar conduct toward an intimate partner or that partner’s child. And it must either contain a finding that the respondent poses a credible threat to physical safety, or expressly prohibit the use, attempted use or threatened use of physical force reasonably expected to cause bodily injury.
Two consequences follow, and both are widely misunderstood. Because of the notice and hearing requirement, an order issued ex parte generally does not qualify, so a New York temporary order of protection granted without the respondent present usually does not trigger the federal bar on its own. And a bare no-contact order, with no credible-threat finding and no express force-prohibiting language, generally does not satisfy the statute either.
None of that makes the state consequences go away. Family Court Act 842-a operates on its own terms, and a temporary order can cost someone their license under state law while the federal disability has not attached.
On the constitutional question: in United States v. Rahimi the Supreme Court rejected a facial Second Amendment challenge to 922(g)(8), holding the statute constitutional at least as to a person a court has found to pose a credible threat to the physical safety of an intimate partner. The Court expressly declined to decide whether the separate force-prohibition branch is permissible, writing that its analysis “starts and stops” with the credible-threat provision. Most of the case law working out the statute’s remaining edges comes from federal courts outside New York and is not binding here.
Getting Your Firearms and Your License Back
Nothing about this is automatic, and that is the part people get wrong.
A suspension runs for the life of the order unless the order is modified or vacated, so the starting question is what the order says and when it ends. Disposition of surrendered weapons runs through Penal Law 400.05, and a criminal court may order return when a suspension terminates. Where the court revoked rather than suspended, and where an ineligibility finding was made, the path is different and longer.
What that path looks like in a given case depends on the findings the court actually made, which is why the findings matter so much at the front end. If you are facing an order of protection and you hold a pistol permit, the time to address the firearm issue is before the findings are made, not after.
We represent clients on both sides of family offense proceedings in Erie and Niagara Counties. If firearms or a license are part of your situation, raise it at the first meeting. Contact us to discuss it.
This page is general information about New York and federal law, not legal advice, and reading it does not create an attorney-client relationship.
Frequently Asked Questions
Will I automatically lose my pistol permit if an order of protection is issued against me?
No. A court must make one of the findings Family Court Act 842-a requires before a firearms license consequence attaches. In Matter of Schoenl v Schoenl the Fourth Department held that firearm restrictions were not warranted under 842-a absent findings that the conduct involved injury, weapon use or threat, violent felony behavior, or a substantial risk of unlawful firearm use. In practice these findings are made frequently, so this is a reason to be represented at the hearing rather than a reason to relax.
What is the difference between suspension and revocation of a firearms license?
A suspension under Family Court Act 842-a remains in effect for the life of the temporary or final order of protection unless that order is modified or vacated. Revocation ends the license. At the temporary order stage the statutory consequence is suspension. At the final order stage revocation becomes mandatory where the conduct underlying the order involved physical injury, use or threatened use of a deadly weapon or dangerous instrument, or violent felony behavior.
Does a temporary order of protection trigger the federal firearms ban?
Usually not on its own. 18 U.S.C. 922(g)(8) applies only to an order issued after a hearing of which the respondent had actual notice and at which the respondent had an opportunity to participate. An order granted ex parte, without the respondent present, generally does not qualify. New York's own consequences under Family Court Act 842-a are separate and can still apply.
What happens to firearms in my house that belong to someone else?
This comes up often in shared households and it is not something to resolve informally. Raise it with the court and with your attorney. Transferring firearms to a friend or relative in anticipation of an order is a serious mistake that creates a second problem on top of the first.
Do I get my guns back when the order of protection expires?
Not automatically. A suspension runs for the life of the order unless the order is modified or vacated, and disposition of surrendered weapons is governed by Penal Law 400.05, with a criminal court able to order return when a suspension terminates. Where the court revoked the license rather than suspending it, and where an ineligibility finding was made, the route back is different and longer.
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