New Jersey Domestic Violence Weapons Forfeiture Attorneys

Defending Clients Against Seizure of Weapons in New Jersey Domestic Violence Cases

Were your weapons seized based on a NJ domestic violence arrest or a temporary restraining order (TRO) being filed against you? Are the police or prosecutors refusing to return your weapons and filing a forfeiture action to try to keep your weapons permanently?

The highly skilled criminal defense attorneys at the Tormey Law Firm have extensive experience with domestic violence and weapons defense. Our lawyers represent defendants in restraining order proceedings, criminal cases linked to domestic violence, and associated hearings involving weapons forfeiture in New Jersey. With a defense team including several former county prosecutors who served on behalf of the State in domestic violence and weapons cases, as well as a former member of the Morris County Prosecutor’s Office’s Weapons Forfeiture unit, we have unique insight into the State’s approach to these cases. Now, we leverage our extensive experience on the other side of the legal aisle to build the most effective strategies for representing clients in domestic violence and weapons forfeiture hearings.

With offices in Newark, Morristown, and Hackensack, we regularly appear in courts across New Jersey, including in Essex, Bergen, and Morris counties, fighting for the rights of those whose weapons were confiscated as a result of alleged acts of domestic violence. If you find yourself in a similar situation, you deserve an aggressive advocate who will work tirelessly to restore your reputation and retrieve what is rightfully yours. For additional information and the answers you need to move forward, contact our offices today at (201)-614-2474. Initial consultations are always provided free of charge.

Seizure of Weapons at a Domestic Violence Scene in New Jersey

When an alleged act of domestic violence occurs in New Jersey, and law enforcement authorities are called to the scene, responding officers are required to arrest the individual accused of domestic violence if their initial investigation reveals probable cause that an act of domestic violence occurred. Police are also required to adhere to a strict protocol with regard to weapons in cases of domestic violence. The New Jersey Statute that addresses procedure involving weapons at a domestic violence scene is found in section N.J.S.A. 2C:25-21d(1) of the New Jersey Criminal Code and is entitled “Seizure of Weapons for Safekeeping.”

According to this statute, if a responding officer finds probable cause that an act of domestic violence occurred, they must question everyone present to determine if there are weapons on the premises. If the officer reasonably believes that a weapon would expose the victim to a risk of serious bodily injury, the officer must confiscate the weapon. There are a variety of ways that an officer might identify the presence of weapon, including:

• Observing the weapon in plain view
• Learning from a person at the scene that a weapon is present
• Obtaining consent from the victim to search the premises for weapons (note that if the victim and alleged assailant share a residence, the victim can provide consent to the search)
• Requesting that the alleged assailant or a third party who possesses the weapon voluntarily surrender the weapon
• Obtaining a search warrant for the search and seizure of weapons, if the accused individual refuses to consent to the search and the victim does not have authority to consent

Seizure of a Weapons after a Temporary or Final Restraining Order in New Jersey

New Jersey law also mandates that a person subject to a temporary or final restraining order surrender their weapon(s). This policy is outlined in sections N.J.S.A. 2C:25-26 and N.J.S.A. 2C:25-28j of the New Jersey Criminal Code, entitled “Seizure of a Weapon Pursuant to Court Order.” Under this policy, if an alleged victim of domestic violence victim obtains a temporary restraining order (“TRO”) or a final restraining order (“FRO”), an officer must demand that the accused person surrender the weapon. If the person refuses to surrender their weapon, the officer must:

1. Inform the person that the court order authorizes a search of the premises for the named weapon;
2. If the person refuses to surrender the named weapon, arrest the person for failing to comply with the court order; and
3. Conduct a search of the named premises for the named weapon and seize the named weapon upon discovery.

Types of Weapons that can be Seized based on Domestic Violence Allegations

It is important to understand exactly what constitutes a “weapon” in these circumstances. When most people think of a weapon in a criminal context, they probably think of a firearm such as a handgun, rifle, machine gun, or other assault weapon. As set forth by the NJ Criminal Code, however, the types of weapons that may be seized by law enforcement in a domestic violence case include stun guns, knives, brass knuckles, slingshots, and any other object that can be used to cause serious bodily harm. This means that just about any object that could be used to inflict violence against someone may be subject to police seizure in a domestic violence incident.

Of course, the type of weapon that is typically at issue in these cases is a handgun or other type of firearm. Importantly, even if you are not accused of using the firearm against the alleged victim, the police can still potentially seize it. Moreover, depending on what happens in your case, you could permanently lose your firearm, as well as your firearms ID card and/or handgun purchaser permit. If the weapon confiscated is a firearm, the officer will also obtain the accused person’s firearm purchaser identification card, permit, and any other licenses or authorizations related to firearms.

Process after a Weapon is Seized in New Jersey Domestic Violence Cases

After officers seize a weapon, they must immediately transfer the weapon, firearms purchase identification card, permit, and any other licenses to the Prosecutor’s Office in the county in which the alleged act of domestic violence occurred. They must also provide the Prosecutor’s Office with the domestic violence police report, domestic violence complaint if criminal charges were filed, and the temporary restraining order if applicable.

Within 45 days, the Prosecutor’s Office must determine whether or not to file a forfeiture action to permanently remove the weapon(s) from the person’s possession, as well as to revoke their permits and licenses. They may also elect to return the weapon(s) to the person. If the Prosecutor moves forward with the forfeiture action, a hearing must be held at the Superior Court within 45 days of the notice from the Prosecutor. At this hearing, the Court will determine whether to return the weapon(s) or to permanently remove the weapon(s) from the person’s possession. If the Court does not return the weapon(s) to the person, he or she is now barred from purchasing, owning, possessing, or controlling any firearm in the state of New Jersey.

Frequently Asked Questions (FAQ) Regarding Weapons Seizure for Domestic Violence Cases in NJ

FAQ: What happens to my weapons if I am served with a temporary restraining order (TRO)?

If you are named as a Defendant in a TRO, your weapons are taken by law enforcement for safekeeping depending on how the underlying TRO gets resolved. If you become named as Defendant in a Final Restraining Order (FRO), then your lose the ability to lawfully own your weapons (or any weapons, for that matter) and your property can be sold to a FFL where you can get the proceeds from the sale OR your weapons are destroyed. If you prevail and get the TRO dismissed then you have further court proceedings to determine whether your weapons will be returned to you. The manner in which the TRO is dismissed – voluntary dismissal by Plaintiff, trial, etc. should not have a bearing on the ultimate question of whether your weapons get returned to you, as you still have to go through the proper legal channels to get the weapons returned.

FAQ: My restraining order was dismissed, do I automatically get my guns back? 

Short answer is NO, not automatically. You still must make a request to the Prosecutor’s Office in the county where the TRO was issued against you to ask to have your weapons returned to you. If the prosecutor’s office agrees to the return, then you obtain an Order from the court which would authorize the return of your weapons to you, including any permits taken from you initially. If the Prosecutor’s office objects to returning your weapons to you once the TRO is dismissed, then you must go through the proper legal channels and have a separate court hearing to have the firearms returned to you.

FAQ: What happens in court if I have to appear to get my weapons back?

If you have to go to court, then you will appear before a Superior Court Judge and go up against a prosecutor. You will be given the overview of the trial process, be explained the consequences of not having firearms returned to you, you will be afforded the opportunity to hire a lawyer (no public defenders), and the trial will be a bench trial, where the judge acts as a juror, or the finder of fact. The trial process will begin by you and the prosecutor making an opening statement explaining why you should prevail, whether it be to Order the return of your weapons or deny the order to return weapons. Then, each side will call witnesses and present evidence in support of their respective positions, including making any legal objections when appropriate. Next, each side would make a closing argument, which explains why the weapons either should or should not be returned. Finally, after hearing all the witness testimony and reviewing all of the evidence, the judge makes a decision to either order the return of weapons to the Defendant or to deny the return of weapons.

FAQ: What needs to happen to have my weapons returned to me?

To prevail in your attempt to have weapons returned to you, the following must happen: First, the TRO must be dismissed. Second, if there are any criminal charges, they must be dismissed. Third, it must be shown that the Domestic Violence situation between the Plaintiff and Defendant from the Original TRO no longer exists, even if the TRO is subsequently dismissed. Lastly, the Defendant must not be disqualified from being able to lawfully possess firearms pursuant to N.J.S.A. 2C:58-3(c), as there are fifteen (15) reasons an individual cannot lawfully own firearms in the State of New Jersey. Among those reasons is N.J.S.A. 2C:58-3(c)(8), which states that firearms taken from an individual and not returned to an individual pursuant to the Prevention of Domestic Violence Act are grounds to be denied the ability to own a firearm lawfully in the future in New Jersey. In other words, either you get your weapons returned to you after the TRO is dismissed or your second amendment rights in New Jersey are extinguished.

FAQ: What happens if I win at the hearing and the Judge orders that my weapons be returned to me?

If you prevail, congratulations. You can now once again lawfully exercise your second amendment rights in the State of New Jersey. Coordinate with the Prosecutor’s Office and the Police Department that are in possession of your weapons to coordinate a date and time to have your firearms returned to you.

FAQ: What happens if I do not prevail and my weapons are not returned to me?

You can file an appeal with the Appellate Division, or higher court, within forty-five (45) days from the date of the Order by filing a Notice of Appeal, which notifies the higher court you disagree with what happened at trial, you explain the reason(s) you disagree with the trial court’s decision not to return weapons to you, order transcripts, write a brief explaining why the lower court made the wrong decision, and respond to the prosecutor’s brief which explains why the lower court made the right decision not to return your weapons to you. Then, the Appellate Division writes an opinion deciding on whether the lower court decided correctly on their
decision. We can assist you with this entire process.

Important Points to Remember regarding Weapons Forfeiture in NJ

1. The fact that you were once subject to a TRO as a Defendant in and of itself can be enough of a reason to deny returning your weapons to you depending on the facts behind the underlying TRO. The fact that the TRO was dismissed, regardless of how it was dismissed, can still be taken into consideration whether your weapons will be returned to you after the trial in Superior Court.
2. If there are pending criminal charges filed against you because of the TRO, you must wait until the outcome of the criminal charges to move forward with the forfeiture hearing. Even if your charge was expunged, the prosecutor can ask the judge to open the dismissed criminal charge for the limited purpose of determining whether your weapons can be returned to you.
3. The fact that the Plaintiff supports your efforts to have your weapons returned to you does not guarantee victory in the forfeiture hearing. You can still be denied the return of your weapons even if the Plaintiff insists on the return of weapons, as the underlying facts that led to the issuance of the TRO are going to be taken into consideration.
4. Having items in your possession at the time your weapons were taken from you, even if lawfully obtained, and even if not in any way used in the underlying TRO, can in and of itself be enough of a reason to deny the return of the remaining weapons.
5. Pay attention to your living situation, as residing with someone who cannot lawfully own firearms can be enough of a reason to deny the return of your weapons, even if that person who is disqualified from owning firearms was not involved in the underlying TRO that led to the seizure of your weapons.
6. Not all states will prohibit you from owning firearms even if your weapons are not returned to you. Depending on where you relocate to, (if you decide to relocate to another state) you may still be able to lawfully own weapons and firearms in another state. Check with local laws to determine which states, if any, would allow you to exercise your second amendment rights if your weapons are not returned to you after the dismissal of a TRO.
7. Don’t be discouraged from contesting the Prosecutor’s office decision not to return weapons to you if the TRO is dismissed based on the value of the weapons taken from you (or lack thereof). If you have the means to retain help to contest the decision of the prosecutor to not return weapons, such as an attorney or expert, you should do so as your second amendment rights are at stake in New Jersey. You can make more money down the road, but once the decision is made not to return weapons to you after a dismissed TRO, you lose your second amendment rights in New Jersey.

Contact our Bergen County Weapons Seizure Lawyers for a Free Consultation

Clearly, the stakes in domestic violence weapons forfeiture case are exceedingly high, with implications that can permanently alter your life and the rights that you are afforded under the law. To protect yourself and your liberties, it is essential to enlist a legal advocate who will fight tirelessly on your behalf. Contact our New Jersey weapons seizure attorneys today to begin building your case.