1. Seizure of firearms or other weapons pursuant to a domestic violence restraining order

 

  • A temporary restraining order (TRO) is an order entered pursuant to a complaint by a victim of domestic violence under the Prevention Against Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. In granting a TRO, the judge should forbid the defendant from possessing any firearm or other weapon enumerated in N.J.S.A. 2C:39-1(r),[1] and seize any identification cards or permits. N.J.S.A. 2C:25-28(j).
  • The rationale for the seizure is that “[t]he possession of a weapon by a defendant may pose a danger to the plaintiff even though the alleged act of domestic violence did not involve the use or threatened use of a weapon and even though there was no testimony or evidence that the defendant had previously used or threatened to use a weapon against the plaintiff.” New Jersey Domestic Violence Procedures Manual, at 121 (2022), https://www.njcourts.gov/sites/ default/ files/courts/family/dvprcman.pdf.
  • Additionally, an officer responding to an alleged domestic violence incident may seize any weapons that are contraband evidence or instrumentalities of a crime, and if the officer has probable cause to believe that an act of domestic violence has been committed, the officer upon observing or learning that a weapon is on the premises, shall seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury.  J.S.A. 2C:25-21(d)(1).
  • If an officer seizes a firearm pursuant to N.J.S.A. 2C:25-21(d)(1), “the officer shall also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.” J.S.A. 2C:25-21(d)(1)(b).
  • If the TRO requires the surrender of any firearm or other weapon, a law enforcement officer shall accompany the defendant to the scene of the domestic violence or any other location where the judge has reasonable cause to believe the firearm or other weapon belonging to the defendant is located, to ensure that the defendant does not gain access to any firearm or other weapon, and that the firearm or other weapon is appropriately surrendered in accordance with the order. J.S.A. 2C:25-28(j).
  • “If the order prohibits the defendant from returning to the scene of domestic violence or any other location where the judge has reasonable cause to believe any firearm or other weapon belonging to the defendant is located, any firearm or other weapon located there shall be seized by a law enforcement officer.” N.J.S.A. 2C:25-28(j).
  • “The judge shall state with specificity the reasons for and scope of any search and seizure authorized by the order. The provisions of this subsection prohibiting a defendant from possessing a firearm or other weapon shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.” N.J.S.A. 2C:25-28(j).
  1. Domestic Violence Warrant for the Search and Seizure of Weapons

1) The PDVA also authorizes a judge as a form of exparte relief to issue a Domestic Violence Warrant (DV Warrant) at the time of the issuance of the TRO, N.J.S.A. 2C:25-28(j), or at the time of the issuance of the FRO, N.J.S.A 2C:25-29(b)(16), to search and seize weapons.

2) The purpose of the issuance of a search warrant is to protect the victim of domestic violence from further violence and not to discover evidence of criminality.  State v. Hemenway, 239 N.J. 111, 131 (2019).

3) To authorize a DV warrant, the issuing court must find: (1) probable cause to believe that the defendant has committed an act of domestic violence; (2) probable cause to believe that a search for and seizure of weapons is “necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought,” N.J.S.A. 2C:25-28(f); and (3) probable cause to believe that there are weapons located in the place to be searched. State v. Hemenway, 239 N.J. 111 (2019).

4) “A specific description of the weapon and its believed location should, as much as practical, be set forth in the warrant. The court must make findings on the record and state with specificity the reasons for its decision and the scope of the search. The original return of the search warrant shall be delivered to the court within ten (10) days.” New Jersey Domestic Violence Procedures Manual, at 122.

5) “When a search warrant is recommended by a Domestic Violence Hearing Officer (DVHO), the Affidavit in Support of the Warrant shall set forth precise facts constituting the basis for the conclusion that the defendant’s possession of a weapon exposes the plaintiff to a risk of serious bodily injury. The affidavit shall be reviewed with the plaintiff on the record and signed by the plaintiff. The DVHO should witness the plaintiff’s signature.”  New Jersey Domestic Violence Procedures Manual, at 122.

6) A copy of every TRO or FRO in which the “seizure” box is checked should be forwarded immediately to the County Prosecutor’s Office. In addition, where seizure has not yet occurred but is ordered as part of an order prohibiting weapons possession pursuant to N.J.S.A 2C:25-29b(1), a copy of that order, with the appropriate boxes checked, should also be forwarded immediately to the Prosecutor’s Office. New Jersey Domestic Violence Procedures Manual, at 124.

7) New Jersey Courts do not have the authority to issue DV search warrants for weapons outside of New Jersey on TROs. If the defendant lives out of state, a request for a weapon seizure cannot be added as part of the order. Instead, a notation can be made on the TRO/FRO to alert law enforcement in that state. New Jersey Domestic Violence Procedures Manual, at 75, 120.

  1. Inventory and storage of firearms and other weapons

1) “When the service of a restraining order results in the seizure of weapons, the weapons inventory should be attached to the return of service and sent to the Family Division in the issuing county. The weapons themselves, along with any licenses, identification cards, other paperwork or documentation shall be secured for storage by the prosecutor in the seizing county.”  New Jersey Domestic Violence Procedures Manual, at 124; N.J.S.A. 2C:25-21(d)(2).

2) The firearms or weapons seized, along with any licenses, identification cards, or other documentation are secured for storage by the prosecutor. N.J.S.A. 2C:25-21(d)(2).

  1. Forfeiture of firearms and other weapons

1) In the event the plaintiff chooses not to pursue a FRO, or if the trial court does not issue an FRO, then firearms and weapons seized under the PDVA shall be returned to the owner, “except upon order of the Superior Court.”  N.J.S.A. 2C:25-21(d)(3) (emphasis added).

2) “The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.”  N.J.S.A. 2C:25-21(d)(3) (emphasis added).

3) “A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.”

4) If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner. N.J.S.A. 2C:25-21(d)(3).  If the police are late in transmitting the weapon to the prosecutor, the time period for the seizure action is extended.

5) After the hearing, the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines that:

  1. a) the owner is not subject to any of the disabilities set forth in [N.J.S.A. 2C:58-3(c)[2] (Purchase of Firearms] and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or
  2. b) if the defendant is found not guilty of the charges; or
  3. c) if the court determines that the domestic violence situation no longer exists.

[N.J.S.A. 2C:25-21(d)(3).]

6) “At least 10 days prior to returning the seized weapons, the prosecutor shall notify each claimant or victim that the weapons will be returned to the owner.”  N.J.S.A. 2C:25-21(d)(3).

7) If the court determines that the weapons are not to be returned to the owner, the court may:

(a) With respect to weapons other than firearms, order the prosecutor to 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; or

(b) Order the revocation of the owner’s firearms purchaser identification 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 60 days; or

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

[N.J.S.A. 2C:25-21(d)(3).]

8) Further, if an FRO is issued, the defendant must immediately surrender any firearm or weapon, and may not be permitted to own or possess any firearm for the duration of the order or for two years, whichever is greater.  N.J.S.A. 2C:25-29(b).  “The order shall require the immediate surrender of any firearm or other weapon belonging to the defendant.” N.J.S.A. 2C:25-29(b).  The court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1.   This provision does not, however, apply to any law enforcement officer while on duty, or to any member of the Armed Forces of the United States, or member of the National Guard while on duty or traveling to or from an authorized place of duty, provided the TRO or FRO expressly provides that the defendant may have access to weapons while on duty. New Jersey Domestic Violence Procedures Manual, at 74 (2022), https://www.njcourts.gov/sites/ default/files/courts/family/ dvprcman.pdf.

[1] A “weapon” means anything readily capable of lethal use or of inflicting serious bodily injury, including: 1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; 2) components which can be readily assembled into a weapon; 3) knives; and 4) stun guns and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury.  N.J.S.A. 2C:39-1(r).

[2] Forfeiture may be ordered under N.J.S.A. 2C:58-3(c), if the defendant’s possession of weapons “would not be in the interests of the public health safety or welfare.” Forfeiture of Personal Weapons, 225 N.J. 487, 511 (2016). The State must, however, carry the burden of proving that the defendant poses a continued public or personal danger. In re J.W.D., 149 N.J. 108 (1997).

2C:39-1.   This provision does not, however, apply to any law enforcement officer while on duty, or to any member of the Armed Forces of the United States, or member of the National Guard while on duty or traveling to or from an authorized place of duty, provided the TRO or FRO expressly provides that the defendant may have access to weapons while on duty. New Jersey Domestic Violence Procedures Manual, at 74 (2022), https://www.njcourts.gov/sites/ default/files/courts/family/ dvprcman.pdf.