When Licensed Gun Owners Are Arrested: Getting the Criminal Case Dismissed May Not Get Your Gun Back

For a licensed New York City gun owner, an arrest involving a firearm can create two completely different legal problems.

The first is the criminal case. The second — and sometimes longer-lasting — problem is what happens to your firearm license and your legally owned gun after the arrest.

A person may have lawfully obtained a firearm, complied with New York City's extensive licensing requirements, and possessed that firearm pursuant to a valid license. But if that person displays the firearm during a confrontation — even where the person maintains that the display was necessary for self-protection — the police may make an arrest and leave the District Attorney's Office and the courts to sort out whether a crime actually occurred.

The problem is that the consequences to the license holder can begin immediately, long before the criminal case is resolved.

A Valid Gun License Matters, But It Does Not End the Legal Analysis

New York Penal Law § 400.00 governs licenses to carry and possess firearms in New York. In addition, Penal Law § 265.20(3) expressly recognizes licensed possession of a pistol or revolver by a person who has been issued a license under Penal Law § 400.00 or § 400.01.

That is important. A licensed gun owner should not be treated as though the mere possession of the licensed handgun is itself unlawful.

But a firearm license is not a blanket authorization to display or use a gun in every circumstance. Penal Law § 120.14 — New York's Menacing in the Second Degree statute — can apply when a person intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying a deadly weapon or what appears to be a firearm.

That still is not the end of the analysis. New York also recognizes justification and self-defense. Under Penal Law § 35.15, a person may, subject to important limitations, use physical force when and to the extent the person reasonably believes it is necessary to defend against the use or imminent use of unlawful physical force. Depending on the facts, justification can be central to evaluating a confrontation involving a licensed firearm.

New York City's own licensing rules also recognize that context matters. 38 RCNY § 5-22(a)(11) provides that a licensee may not draw, expose, or display a handgun unnecessarily. The practical question in a confrontation therefore should not be reduced to one fact — whether a firearm was displayed. The circumstances surrounding the display matter.

Why was the firearm displayed? Who was the aggressor? Was the license holder being attacked? What did the license holder reasonably believe was about to happen? Those facts can be critical.

A Recent Matter Handled by Our Office

Our office recently represented a New York City firearm license holder who was arrested after displaying a legally possessed firearm during a confrontation.

Our client maintained that the firearm was displayed because he was being attacked and feared that he was going to suffer serious physical injury. Despite possessing the firearm pursuant to a valid license and maintaining that his actions were defensive, he was arrested and prosecuted.

The criminal case was ultimately dismissed.

But dismissal of the criminal charges did not automatically undo everything that happened as a result of the arrest. The firearm had been taken, and the client's ability to possess it pursuant to his license became a separate battle with the NYPD License Division.

That is a problem many licensed firearm owners do not realize exists until it happens to them.

The NYPD Can Take Your Gun Before the Criminal Case Is Over

New York City's licensing regulations specifically treat certain events as reportable "Incidents." Under 38 RCNY § 5-30, those incidents include a public display of an unholstered handgun and an arrest, summons, indictment, or conviction of the licensee.

The rules also provide that all reported incidents are reviewed and evaluated by License Division investigators. If the License Division determines that suspension or revocation is warranted, the license holder can be directed to voucher firearms for safekeeping.

Most importantly, 38 RCNY § 5-30 expressly provides that when a licensee is arrested while possessing the firearm — or during a police stop in which the licensee uses or threatens to use physical force — the weapon and license or permit may be vouchered by the officer at the time of the arrest or stop.

So a licensed owner can suddenly find himself in a remarkable position: he legally purchased the firearm, legally obtained a license to possess or carry it, maintains that he acted only to protect himself, and yet his gun may already be gone and his license may be suspended before any judge or jury has determined that he committed a crime.

Getting the Charges Dismissed Does Not Automatically Restore the License

This is where many gun owners make a mistake. They hire a criminal defense attorney, successfully resolve the criminal case, obtain a dismissal, and assume the firearm will simply be returned.

Not necessarily.

The criminal prosecution and the NYPD licensing proceeding are separate matters. The License Division applies its own rules and administrative process, and the end of the criminal case does not by itself erase the licensing consequences of the arrest.

Current 38 RCNY § 5-30(i) provides a procedure for a license holder to request a hearing to challenge a suspension or revocation. Where an arrest or summons resulted in the suspension or revocation, the rule provides that the request for a hearing must be made within 30 calendar days after termination of the criminal action. The rules also require a Certificate of Final Disposition when applicable.

That means getting the criminal charges dismissed may be step one. Getting the firearm license restored and the gun returned may be step two.

You May Need a Lawyer for Both the Criminal Case and the License Division

Once the criminal matter is resolved, attention should immediately turn to the NYPD License Division. The licensing case can require its own strategy, evidence, and deadlines.

Depending on the circumstances, counsel may need to obtain the Certificate of Disposition, assemble the evidence surrounding the incident, submit a written challenge, request an administrative hearing, address the grounds cited for suspension or revocation, and advocate for restoration of the license and return of the firearm.

The NYPD maintains separate Incident and Hearing/Appeals functions for these matters. The NYPD License Division contact page identifies channels for incident reporting and for requesting hearings and appeals.

Simply putting the criminal case behind you is therefore not always enough. Missing the licensing process — or the applicable deadline — can create another problem after the criminal case is already over.

If the NYPD Won't Restore the License, You Can Challenge the Decision in Court

The NYPD License Division does not necessarily have the final word.

After the administrative process is completed and the agency issues a final adverse determination, the license holder may be able to challenge that decision through a proceeding under CPLR Article 78 in New York State Supreme Court.

Under CPLR § 7803, a court may review, among other things, whether an agency determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

New York courts do review firearm-licensing determinations. For example, in Matter of Stallard v. New York City Police Department — License Division, the Appellate Division, First Department, reversed the dismissal of an Article 78 proceeding involving a firearms permit and remanded the matter to the NYPD License Division for reconsideration.

An Article 78 proceeding therefore provides a mechanism to put a final licensing determination before a judge. Depending on the facts and procedural posture, the license holder can seek annulment of an improper determination and other appropriate relief.

An Arrest Should Not Automatically Become a Permanent Loss of Lawful Firearm Possession

Police officers often have to make decisions quickly at the scene of a confrontation. But an arrest is not a conviction.

It is also important to be precise: dismissal of a criminal case does not automatically establish that the original arrest was legally improper. Whether an arrest was unlawful is a separate legal question that depends on the facts, including whether probable cause existed at the time of arrest.

What a licensed firearm owner should not assume, however, is that dismissal of the criminal case ends the fight. A person who lawfully owned and possessed a firearm before an arrest may still need an attorney who understands both sides of the problem — the criminal prosecution and the firearm-licensing consequences that follow it.

Protect the Criminal Case — and the License

Abe George is a former prosecutor and experienced criminal defense and civil rights attorney. The Law Offices of Abe George represents licensed firearm owners facing criminal charges and can also advocate before the NYPD License Division concerning suspension or revocation of firearm licenses and the return of vouchered firearms.

When the NYPD issues a final licensing determination that cannot be resolved administratively, the firm can evaluate whether an Article 78 proceeding is appropriate to challenge the agency's decision in court.

A dismissed criminal case should not simply become the beginning of a permanent loss of your ability to lawfully possess a firearm. If your criminal charges have been dismissed but the NYPD still will not return your firearm or restore your license, contact the Law Offices of Abe George to discuss your options.

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Official Legal Sources Referenced

• New York Penal Law § 400.00 — Firearm licensing
• New York Penal Law § 265.20 — Exemptions, including licensed pistol/revolver possession
• New York Penal Law § 35.15 — Justification / self-defense
• New York Penal Law § 120.14 — Menacing in the second degree
• 38 RCNY § 5-22 — Conditions of issuance for NYC handgun licenses
• 38 RCNY § 5-30 — Reporting of incidents, vouchering, suspension/revocation, hearings
• CPLR Article 78
• CPLR § 7803 — Questions reviewable in an Article 78 proceeding
• Matter of Stallard v. NYPD License Division (1st Dept. 2025)
• NYPD License Division — Contact information

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This article is for general informational purposes only and is not legal advice. The law and administrative rules can change, and the outcome of any matter depends on its specific facts.