Domestic Violence and Weapons Forfeiture Hearings

Learn what happens to weapons seized after a complaint of domestic violence.

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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 partner occurs in the “heat of passion” and could have been avoided if only the weapons had been removed from the home where a previous act of domestic violence occurred. This article discusses how New Jersey deals with weapons that belong to domestic abusers.

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

Domestic violence is very serious business, so local police departments try to err on the side of caution. Police will typically seize all weapons they find in a home when they arrest a person for domestic violence. 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.

So, when police respond to a domestic violence complaint, they may seize weapons that would expose a victim to a risk of serious bodily injury, including handguns, shotguns, automatic weapons, 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 be used to hurt or kill a victim will be seized.

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 and attach an inventory of all seized weapons to the domestic violence report.

 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:25-21(d). If the prosecutor does not institute an action within 45 days of seizure, the seized weapons will be returned to the owner.

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.

If I’m found not guilty of domestic violence, can I retrieve my seized weapons?

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 short, 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). For example, in State v. Freysinger, 311 N.J. Super. 509 (App. Div. 1998), 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.

I was found guilty of domestic violence, and the court issued a final restraining order against me. Can I can keep my weapons?

Many people love their weapons. Some are avid hunters and are obsessed with their rifles and hunting bows. However, if you’ve been found guilty of domestic abuse, your hunting days are probably 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 however still entitled to a weapons forfeiture hearing, even if a final restraining order has been issued. During the weapons forfeiture hearing, the court will determine whether the weapons should be returned to the owner.

What happens at a weapons forfeiture hearing?

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

  • the court has issued a final restraining order
  • the weapons were actually used in an act of domestic violence
  • the defendant has a criminal history, or
  • 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).

If the court decides it will not return the weapons to the owner, then the court may:

  • 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
  • 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
  • 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.

It is also important to note that people who have a final restraining order issued against them cannot obtain a “firearms purchased identification card.” N.J.S.A. 2C:58-3c(1) to (6); Adler v. Livak, 308 N.J. 219 (App. Div. 1998).

I am a police officer and recently lost a domestic violence case. Are there exceptions that will permit me to carry a weapon?

There are many jobs that require employees to carry 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 the 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.  

Updated by: , Attorney

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