N.J.S.A. 2C:25-29(b)(16) provides that in addition to entering an order prohibiting a defendant found to have committed an act of domestic violence from possessing any firearm, a “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.”

Although martial arts items (e.g., a sword, throwing spikes and stars, crossbow, staffs, spear, knives, and nunchucks) are not specifically identified as weapons in N.J.S.A. 2C:39-1, the definition of “weapon” contained in this section as, “anything readily capable of lethal use or of inflicting serious bodily injury,” includes martial arts equipment. Ibid. Thus, the entry of an order permanently prohibiting defendant from possessing martial arts weapons is the type of relief a court is expressly permitted to grant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. However, as the language of the Act makes clear, such a prohibition is permissive, not mandatory. N.J.S.A. 2C:25-29(b)(16).

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The Gun Control Law [N.J.S.A. 2C:58-1 to -18], i.e., N.J.S.A. 2C:58-3(c)(8), imposes a statutory bar to obtaining a gun permit only when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3) [Prevention of Domestic Violence Act of 1991 (N.J.S.A. 2C:25-17 to -35)].

N.J.S.A. 2C:58-3(c) provides: “No handgun purchase permit or firearms purchaser identification card shall be issued: . . . (8) To any person whose firearm is seized pursuant to the ‘Prevention of Domestic Violence Act of 1991,’ and whose firearm has not been returned.”

Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded. A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)’s bar to the issuance of a firearms card be due to some fault of plaintiff

Only when a person’s firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and “has not been returned” for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), is that person permanently barred from obtaining a firearms card. That is the only sensible interpretation of N.J.S.A. 2C:58-3(c)(8) and the only interpretation that is fully consistent with what the Legislature must have intended. Therefore, under N.J.S.A. 2C:58-3(c)(8), the reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3) or by an admission made by a plaintiff in a consent judgment.

N.J.S.A. 2C:58-3c(8) provides that no firearms purchaser identification card (FPIC) shall be issued to any person whose firearm is seized pursuant to the Prevention of Domestic Violence Act and whose firearm has not been returned. And, correspondingly, N.J.S.A. 2C:39-7b(3) makes it a third-degree crime for a person whose firearm is seized pursuant to the Prevention of Domestic Violence Act and whose firearm has not been returned to purchase, own or possess a firearm.

The structure of the Prevention of Domestic Violence Act and the corresponding provisions of Title 2C dealing with firearms, do not contemplate return of firearms and FPICs to individuals merely because the domestic violence proceeding is concluded. See M.S. v. Millburn Police Dep’t, 395 N.J. Super. 638, 642 (App. Div.) (the disqualification under N.J.S.A. 2C:58-3c(8) survives vacation of a domestic violence restraining order), certif. granted, 193 N.J. 223 (2007); State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004) (the voluntary dismissal of a domestic violence complaint does not mandate the automatic return of firearms seized in connection with that proceeding). The prosecutor retains an independent right to seek forfeiture if the prosecutor deems it appropriate. If the affected person wishes to contest the proposed forfeiture, he or she is entitled to a hearing, N.J.S.A. 2C:25-21d(3), for a determination as to whether he poses a threat to the public in general or to anyone in particular.

When the FPIC is “revoked,” it connotes a permanent deprivation.

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N.J.S.A. 2C:25-21(d)(3), authorizes a prosecutor who has possession of seized weapons to petition a judge of the Family Part, within forty-five days of the seizure to obtain title to a seized weapon, or to revoke any “permits, licenses and other authorizations for the use, possession, or ownership of such weapons . . . .” The forty-five day time period for filing petition for forfeiture does not begin to run until the prosecutor comes into possession of the weapon or has knowledge of the seizure. State v. McGovern, 385 N.J. Super. 428, 431 (App. Div. 2006).

Title to weapons seized following an arrest for an act of domestic violence may be forfeited “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). In addition, the statute “implicitly refers to N.J.S.A. 2C:58-3, the statute regulating the issuance of firearms purchaser identification cards.” In re J.W.D., 149 N.J. 108, 115 (1997). N.J.S.A. 2C:58-3(c)(5) provides that no handgun permit or FPIC shall be issued “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare.” The two statutes, when read together, reflect the Legislature’s intent that courts not return confiscated weapons “to a defendant in a domestic violence action, even after the dismissal of the complaint, if the court finds that the defendant poses a threat to public health, safety, or welfare.” J.W.D., supra, 149 N.J. at 116.

As observed in State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004): “[A] judicial declaration that a defendant poses a threat to the public health, safety or welfare involves, by necessity, a fact-sensitive analysis. It requires a careful consideration of both the individual history of defendant’s interaction with the former plaintiff in the domestic violence matter, as well as an assessment of the threat a defendant may impose to the general public.” [Id. at 535.]

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The voluntary dismissal of a domestic violence complaint does not mandate the automatic return of any firearms seized by law enforcement officers in connection therewith. State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004); In re Return of Weapons to J.W.D., 149 N.J. 108, 110 (1997). That is so because the issuance of a permit to purchase a firearm or firearms purchaser identification card is limited by N.J.S.A. 2C:58-3c(1) to (8) to persons who are not subject to any of eight enumerated disabilities. Disability (1) pertains to persons who have been convicted an act of domestic violence, and disability (6) to “any person who is subject to a restraining order issued pursuant to the [DVA] prohibiting the person from possessing any firearms.” Thus, a permit previously issued may be revoked if the person becomes subject to any of the statutory disabilities. The Prosecutor retains the statutory right to seek the forfeiture of any seized firearms, provided it can show that defendant is afflicted with one of the legal “disabilities” enumerated in N.J.S.A. 2C:58-3c.

Within forty-five days of seizure, the State can petition the Family Part for a forfeiture order “to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for use, possession, or ownership of such weapons.” N.J.S.A. 2C:25-21d(3); State v. Wahl, 365 N.J. Super. 356, 362 (App. Div. 2004). The proceedings are to be conducted in a summary fashion and the burden of proof is upon the State to show, by a preponderance of the evidence, that forfeiture is legally warranted.

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 the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c 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 if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists. [N.J.S.A. 2C:25-21d(3).]

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Defendant may be ordered to forfeit weapons, permits, and licenses pursuant to N.J.S.A. 2C:25-21, of the Prevention of Domestic Violence Act, and N.J.S.A. 2C:58-3c(5), which precludes the issuance of a handgun purchase permit or firearms purchaser identification card “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare.”

There is no sixth amendment right to counsel in a weapons forfeiture proceeding. See Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971). The forfeiture of weapons neither results in imprisonment nor causes the type of serious consequence that concerned the Court in Rodriguez.

N.J.S.A. 2C:58-3c(5), which precludes the purchase of handguns when “not [] in the interest of the public health, safety or welfare,” “must be liberally construed to effectuate the overarching public policy objectives of the Prevention of Domestic Violence Act.” State v. Cordoma, 372 N.J. Super. 524, 534 (App. Div. 2004).

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