How Stalking Charges Impact Your Gun Rights in New Jersey
New Jersey Stalking Allegations and Loss of Firearms Rights After Stalking Convictions
Stalking may not seem like a big deal, but a conviction or even a restraining order as a result of an accusation of stalking can have a significant impact on the alleged stalker’s life. Along with the potential for a jail or prison sentence, individuals convicted of stalking or who have a restraining order as a result of an accusation can lose their Second Amendment right to own a firearm. If you have been convicted of stalking or are facing a charge or restraining order for stalking, it is critical to discuss your legal rights and options with a defense lawyer. Likewise, a gun law attorney on our team can help assess your eligibility to purchase, own, or possess a firearm and the potential ways to restore your firearms rights if possible.
What is Stalking under NJ Law?
While most people have their own idea of what constitutes stalking, the offense has a legal meaning. N.J.S.A. 2C:12-10 defines stalking as knowingly or intentionally engaging in a course of conduct directed at one specific person that would make any reasonable individual fear for their own safety or the safety of a third party or feel other significant emotional distress.
The law further defines this course of conduct as being activities such as maintaining physical or visual proximity to a person repeatedly, interfering with someone’s property, or repeatedly harassing a person. Other stalking conduct includes following, surveilling, observing, or monitoring a person by any method, action, means, or device, either directly or indirectly or through a third party. An individual may also engage in stalking conduct by repeatedly threatening a person through any means, including written, oral, or other communication means or implied by the alleged stalker’s conduct or any combination of these means.
The law also states that repeatedly means two or more occasions.
New Jersey Stalking Cases with Restraining Orders and Criminal Charges
While the law defines stalking behaviors, there is still much room for interpretation. Therefore, there are no clear specifications about when a restraining order will be issued and when an individual will face criminal charges. However, a new law went into effect on January 1, 2024, that does provide some clarity. The Victim’s Assistance and Survivor Protection Act (VASPA) allows an alleged stalking victim to apply for a protective order even if criminal charges are not filed and regardless of the disposition of criminal charges if they are filed. This means even those who do not qualify as victims of domestic violence may still file and obtain restraining orders if they are being stalked by someone else. Additionally, if an individual is convicted of stalking, an application for a permanent restraining order is automatically filed on behalf of the victim.
If the alleged stalker faces criminal charges, it will likely be a fourth-degree offense if it is the first time the individual has been convicted of stalking. This may mean an 18-month jail sentence and up to $10,000 in fines, along with a restraining order against them. If it is a second or subsequent offense against the same victim, the individual will be charged with a third-degree offense, and they can face a prison sentence of up to five years. Additionally, the individual can be charged with a third-degree offense if the accused individual was in jail or on probation or parole for an indictable offense or if there was a temporary restraining order already in place prohibiting contact between the alleged victim and the alleged stalker.
However, being charged with stalking is not the same as being convicted. There are some legal defenses to stalking charges, and a seasoned defense lawyer may be able to defend you and help you avoid a conviction.
Broadening Access to Restraining Orders for Stalking in New Jersey
Originally, New Jersey law only allowed victims of domestic violence to get a restraining order, or civil protection order, against their abuser. This required very specific relationships between an alleged victim and an alleged stalker, including a spouse, former spouse, or any person who is presently or has at any time in the past been a member of the same household as the victim; a person with whom the victim has a child or is expecting a child; or a person the victim once had a dating relationship with.
In May 2016, that law was expanded to include victims of sexual violence if they did not qualify for a restraining order for domestic violence. Prior to that, victims of sexual violence could only apply for a restraining order if criminal charges were filed.
The latest expansion, which took effect January 1, 2024, allows victims of stalking to apply for restraining orders with or without criminal charges being filed. This expansion means that a stalking victim does not have to be eligible as a domestic violence or sexual violence victim. The alleged stalker can be a complete stranger to the victim. While being stalked by a stranger is reported in less than 25% of cases, this expansion provides protection to those victims who were previously unprotected. However, it can also make it easier for individuals to be accused of stalking.
How Stalker Prohibitor Policies Extend Federal Prohibitions on Firearms Ownership
Federal law states that anyone convicted of a felony is disqualified from owning a firearm. In many states, stalking is not charged as a felony but as a lesser offense, which would technically allow convicted stalkers to continue to be armed after their conviction. This could present a danger to past or future victims, which is why 21 states, including New Jersey, have adopted stalker prohibitor policies relating to gun laws.
A stalker prohibitor policy does not make stalking a felony in those states. Instead, the policy extends the state’s gun laws to include the crime of stalking. That extension means that individuals who are convicted of stalking are prohibited from owning a firearm. In New Jersey, this prohibition is indefinite, meaning that a conviction of stalking could lead to the individual never being allowed to own or possess a firearm again during their lifetime.
Impact of a Stalking Conviction on Gun Rights in New Jersey
Because of the stalker prohibitor policy, any stalking conviction, regardless of the degree of offense, will result in the loss of gun rights. This means that even the first conviction, even if it is a lesser degree of offense, will prevent the convicted individual from owning a firearm after the date of conviction. A restraining order for stalking against you, whether temporary or permanent, also means you must forfeit any weapons in your possession and must not possess a firearm or gun permit. However, depending on what happens in the case, you may be able to get them returned to you with help from an experienced attorney.
Firearm Surrender in NJ Restraining Order Cases for Stalking
As mentioned, any restraining order, whether temporary or final, based on stalking will mean that the individual cannot own or possess firearms and must surrender any that they own as well as any licenses they have authorizing them to have firearms.
Additionally, violating a restraining order to continue stalking the victim will cause the alleged stalker to face additional criminal charges, which will also restrict the individual’s right to own a firearm. For example, if the defendant named in a temporary restraining order believes their alleged victim has falsely accused them of stalking and approaches them to try to explain or ask them to drop the restraining order, they can now be charged with a third-degree crime and if convicted, will lose their Second Amendment rights, even if they had not stalked the alleged victim before the restraining order.
What Happens if You are Found in Possession of a Firearm after a Restraining Order Has been Filed for Stalking in NJ?
If there is a temporary or final restraining order for stalking in place and you are found in possession of a firearm, you can be charged with a third-degree crime. If convicted, you could face up to five years in prison.
What Happens if You Have a Gun After a Stalking Conviction in NJ?
If you have been convicted of stalking and are found to possess a firearm, you can be charged with a second-degree crime. If convicted, you could face between five and ten years in prison.
Safeguard Your Gun Rights in Stalking Cases with NJ Attorneys Help
Stalking can be a very serious crime with significant impacts on the rest of your life. The inability to possess a firearm can limit your ability to work in law enforcement, corrections, or the military. A restraining order can severely limit your ability to move around freely, and a criminal conviction can limit employment options, as well as where you can live. A seasoned defense lawyer can assist you by using the evidence to show that your conduct did not meet the definition of stalking, that the alleged victim was not afraid or in emotional distress, or that no threats were made in order to prevent you from losing your gun rights. If you have already been convicted, it may be possible to get an expungement or to remove a restraining order based on stalking that has had a negative affect on your gun rights.
The Tormey Law Firm handles expungements to restore gun rights and restraining order removals in order to help our clients get their Second Amendment rights back statewide in NJ, including in Bergen County, Monmouth County, Middlesex County, Hudson County, Union County, and Essex County. We also defend clients accused of possessing weapons after stalking convictions and those arrested for alleged stalking while in possession of a gun or other weapon. Contact our firm today to discuss your case and learn more about your legal rights and options at (201)-614-2474. We offer free consultations seven days a week.
