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3. Basic Weapon Issues in a Domestic Violence Case

Divorce FAQ's

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

When the police respond to a complaint for domestic violence and if they find a weapon(s) present in the home, they may then seize the weapon(s) if they believe it would expose the 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 DV 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 then seize any weapons, and this includes bows and arrows, hunting rifles, BB guns, pellet guns, air rifles, antique firearms and rifles, and any antique swords. Basically, the police will seize any type of instrument or weapons that they reasonably can hurt or kill the victim.

The 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 murder case stories about spouses and lovers murdering each other. The plain truth is that in many instances the murder of a spouse, girlfriend or boyfriend could be avoided if the weapons are removed from the home. In my earlier years of practice I used to only exclusively handle murder appeals. I have handled countless cases wherein I would represent an ordinary law-abiding citizen who went “berserk” and killed his or her spouse. I would be devastated after visiting these clients at the prison. These people ruined their lives, and most of them had prison terms of life with a thirty-year stipulation. This means that the prisoner must serve at least thirty years without parole. Unfortunately, in many of these cases the murder occurred in the “heat of passion.” Moreover, if the guns, sword or weapon would have been seized then the murder would have never happened, and two lives would have been saved. The victim would not have died. Moreover, the defendant would not have to waste their life in prison.

2. What happens to the weapons after the police seize them in a DV case?

When the police seize the weapons in a home after a DV incident, they are then required to deliver all weapons to the county prosecutor. Moreover, 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 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(d)(a) and (b). Once a law enforcement officer learns of the presence of a weapon where the domestic violence occurred, then the officer should attempt to seize the weapon if that weapon would post a risk of harm to the victim.

3. I have just lost my DV case, and the court has issued a final restraining order against me. Is there any way that I can keep my weapons?

There are many people who love their weapons. Some men are avid hunters, and they are obsessed with keeping their rifles and hunting bows. Unfortunately if a person is found guilty of a DV charge then their hunting days may soon be over. Once a final restraining order is issued, there is an established requirement that all weapons and weapon permits shall be forfeited based on the Federal Firearm 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, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:

1. 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;
2. 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 posses 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
3. Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the state or to 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 DV charge that my wife filed against me. The police have 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. Basically a defendant can still have their weapons forfeited even if the DV case is dismissed, or if a final restraining order is dissolved. If a court finds that the defendant still poses a threat to the public or to the former victim, then the weapons can still be forfeited. Some illustrative cases on this point 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 can still be forfeited even though the 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 TRO, on the basis that the defendant was habitually drunk. The most important case on weapon forfeiture proceedings if a DV 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 DV case is dismissed.

5. What happens to the weapons once the police seize them?

Once any weapon is seized by the police it is then delivered immediately to the county prosecutor’s office. 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 court must set a date within 15 days for the return date of weapons hearing. No formal pleadings or filing fees are required. The court will then conduct a summary hearing.

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

1. The court has issued a final restraining order.
2. The weapons were actually used in an act of domestic violence.
3. The defendant has a criminal history.
4. In the consideration of the 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 them, then the 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 I have recently lost my DV case that my wife filed against me. Are there any exceptions that will still permit me to carry a weapon?

There are many jobs that require a person to carry a weapon. Unfortunately if a person loses a DV case, then he or she could also soon lose their job as well. As of 1995, police officers who are involved as aggressors in DV cases may retain their service weapon provided that the County Prosecutor from the county where the domestic violence occurred, or the Attorney General, consents. See, A.G. Directive 9/1/00. It must be emphasized that the prosecutor still can override a court order which directs the forfeiture of all weapons. If a final restraining contains a prohibition on weapon possession, and if the prosecutor will agree to an exception, then the defendant should request a modification for 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 any defendant who is a law enforcement officer from possessing any weapon, See, 18 U.S.C. 922(g) If the court permits the police office to continue to carry a weapon, then the Attorney General’s Directive Implementing Procedures for the Seizure of Weapons from Law Enforcement Officer Involved in Domestic Violence Incident sill apply.

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

No. Any antique firearm if 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.