Domestic Violence -- Weapons Issues

1. Can I lose my weapons if I am arrested for a domestic violence complaint?

If the police find a weapon(s) when responding to a complaint for domestic violence, they may seize the weapon(s) if they believe it would expose a victim to a risk of serious bodily injury. In the real world, the police always seize all weapons once they arrest a person for a domestic violence complaint. The New Jersey Legislature has authorized law enforcement officials to confiscate weapons from aggressors in domestic violence settings. N.J.S.A. 2C:25-26a. The police will seize any weapons, including bows and arrows, hunting rifles, BB guns, pellet guns, air rifles, antique firearms and rifles, and antique swords. Any type of instrument or weapon that could reasonable hurt or kill a victim will be seized.

This area of domestic violence is very serious business, and the local police departments always want to err on the side of caution. Each and every month the front covers of the Star Ledger, the Asbury Park Press, and the Home News are filled with stories about spouses and lovers murdering each other. In many instances the murder of a spouse or girlfriend or boyfriend could be avoided if the weapons are removed from the home. In many cases, the murder occurs in the “heat of passion.” If the weapons had been seized, the murder would have never happened, and two lives would have been saved. The victim would not have died and the defendant would not have a wasted life in prison.

2. What happens to weapons after they are seized?

When the police seize weapons in a home after a domestic violence incident, they are required to deliver all weapons to the county prosecutor. The prosecutor’s office is then given 45 days from the day the prosecutor takes possession of the weapons to determine whether to institute legal action against the owner of the weapon or return the weapon to its owner. N.J.S.A. 2C:25-21d. If the prosecutor does not institute an action within 45 days of seizure, the seized weapons will be returned to the owner.

The police are required to append an inventory of all seized weapons to the domestic violence report.

A defendant who has been convicted of a misdemeanor crime of domestic violence is “unfit” to carry firearms. The Prevention of Domestic Violence Act, in keeping with its intent, requires the police to seize all weapons and permits if there is probable cause of domestic violence. N.J.S.A. 2C:25-2-21(a) and (b). Once a law enforcement officer learns of the presence of a weapon where a domestic violence incident occurred, that officer should attempt to seize the weapon if it would pose a risk of harm to the victim.

3. I lost my domestic violence case and the court issued a final restraining order against me. Is there a way that I can keep my weapons?

Many people love their weapons. Some men are avid hunters and are obsessed with their rifles and hunting bows. Unfortunately, if a person is found guilty of a domestic charge, his hunting days may be over. Once a final restraining order is issued, there is an established requirement that all weapons and weapon permits be forfeited based on the Federal Firearms statute. 18 U.S.C. 922g(9).

The defendant is entitled to a weapons forfeiture hearing even if a final restraining order has been issued against him. If the court determines after a hearing that the weapons are not to be returned to the owner, the court may:

a. With respect to weapons other than firearms, order that the prosecutor dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days;

b. Order the revocation of the owner’s firearms purchase ID card or any permit, license, or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 90 days; or

c. Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the state or where the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S.A. 2C:64-6.

4. I beat the domestic violence charge that my wife filed against me. The police seized all of my hunting rifles. Can I now automatically retrieve my weapons from the prosecutor’s office?

Even if a restraining order is dismissed, weapons can still be forfeited if the court finds that the aggressor poses a threat to the public or to a particular person. Therefore, a defendant can still have his weapons forfeited even if the domestic violence case is dismissed or if a final restraining order is dissolved. Some illustrative cases are Matter of J.W.D., 149 N.J. 108 (1997); State v. Volpini, 291 N.J. Super. 401 (App. Div. 1996); and State v. Solomon, 262 N.J. Super. 618 Ch. Div. 1993). All of these cases held that weapons could still be forfeited even though the underlying domestic violence complaint was dismissed.

In summary, weapons can still be forfeited, even without a restraining order, in the interest of public health, safety, or welfare. N.J.S.A. 2C:58-3(c). An illustrative case is State v. Freysinger, 311 N.J. Super. 509 (App. Div. 1998). Here, the Appellate Division upheld the forfeiture of a firearm seized pursuant to a temporary restraining order, on the basis that the defendant was habitually drunk.

The most important case on weapon forfeiture proceedings where a domestic violence case has been dismissed is Matter of J.W.D., 149 N.J. 108 (1997). Here, the Appellate Division held that the court is required to make a factual determination as to why weapons should be forfeited if a domestic violence case is dismissed.

5. What happens after a weapons forfeiture hearing?

Generally, weapons will be returned to a person unless one of four events takes places.

a. The court has issued a final restraining order.

b. The weapons were actually used in an act of domestic violence.

c. The defendant has a criminal history.

d. In the consideration of public interest, and after a hearing, a court determines that the weapons should not be returned. See, Matter of J.W.D., 149 N.J. 108 (1997).

6. What will happen to my rifles if I lose my weapons forfeiture case?

After the court orders weapons to remain forfeited, the owner has 60 days to sell any firearms to a registered dealer. N.J.S.A. 2C:25-2-21(d). Furthermore, the court may order that the weapons be transferred to another person.

It is also important to note that, if an applicant has a final restraining order against him, an application for a “firearms purchased identification card” will also be denied. N.J.S.A. 2C:58-3c(1) to (6); Adler v. Livak, 308 N.J. 219 (App. Div. 1998).

7. I am a police officer and recently lost a domestic violence case that my wife filed against me. Are there exceptions that will still permit me to carry a weapon?

There are many jobs that require carrying a weapon. Unfortunately, if a person loses a domestic violence case, such a job may be in jeopardy. As of 1995, police officers involved as aggressors in domestic violence cases may retain their service weapon provided that the County Prosecutor (from the county where the domestic violence occurred) or Attorney General consents. See A.G. Directive 9/1/00. It must be emphasized that the prosecutor can override a court order directing the forfeiture of all weapons. If a final restraining order contains a prohibition on weapon possession, and if the prosecutor agrees to an exception, then the defendant should request a modification concerning his service weapon.

In summary, if a police officer is subject to a final restraining order, then the federal gun control law provides that the courts may, if necessary for the protection of the victim, prohibit a defendant who is a law enforcement officer from possessing a weapon. See 18 U.S.C. 922(g). If the court permits the police officer to carry a weapon, then the Attorney General’s Directive Implementing Procedures for the Seizure of Weapons from Law Enforcement Officers Involved in a Domestic Violence Incident still applies.  

8. I was just arrested for a domestic violence complaint and the police seized my antique gun collection. Is this legally permissible?

No. An antique firearm, if it is incapable of being fired or discharged, or if it does not fire ammunition, is not considered a weapon under the Prevention of Domestic Violence Act.