Domestic Violence Charges and New Jersey Gun Ownership--
New Jersey residents seeking to exercise their Second Amendment rights must comply with two sets of laws--State and federal. In the arena of domestic violence, State and federal laws contain much overlap. Further, federal laws governing Second Amendment rights make heavy reference to events that are the subject of New Jersey laws. Second Amendment laws as they relate to domestic violence is a prime example.
As is well known, when it comes to denying persons their Second Amendment rights, New Jersey is a leader. In almost every area, New Jersey laws are as restrictive or more restrictive as federal laws that deal with the same subject. In one instance involving domestic violence, however, federal law is even more restrictive than New Jersey law.
On this page, Gun Lawyers in New Jersey™ explain both New Jersey and federal domestic violence laws as they affect Second Amendment rights.
New Jersey Domestic Violence Laws and the Second Amendment
New Jersey's Prevention of Domestic Violence Act of 1991 severely affects gun owners' Second Amendment rights. This Act is a comprehensive collection of statutes adopted by the New Jersey Legislature. Its definition begins at N.J.S. 2C:25-17. Domestic Violence Act provisions cover obtaining restraining orders, and the effects of such orders. Persons subject to a domestic violence restraining order, or against whom a domestic violence restraining order is being sought, can find elsewhere an overview of how it works.
The Domestic Violence Act gives law enforcement officers enormous powers and duties. N.J.S. 2C:25-21 gives the exact wording of these powers and duties. They begin when allegations of domestic violence are first made.
One of those domestic violence duties is to seize any weapons that the officer “reasonably believes” would expose the “victim” to a risk of serious bodily injury. If the officer seizes a firearm, he must also seize any firearms purchaser identification card (“FPID”), or permit to purchase a handgun, issued to the accused individual. The Domestic Violence Act requires the officer to then turn those items over to the county prosecutor.
It is important to note that the person whose firearms are seized need not be the same person accused of the acts of domestic violence. The test for seizure of the firearms is not whether their owner is the accused individual. The test, rather, is whether the accused individual is a person who would have access to the firearms. Thus the firearms that are seized may even be firearms belonging to the victim. A New Jersey case entitled In re Clark explains that retionale.
The Domestic Violence Act requires the prosecutor to do one of two things within forty-five days of the seizure. The prosecutor's first alternative is to return the seized items to their owner. The other alternative is for the prosecutor to seek a court order to keep the items; or to object to their return; or to revoke the FID or permit. If the prosecutor chooses that second alternative, then the Domestic Violence Act requires the court to hold a hearing within forty-five days from when the prosecutor advises his decision.
New Jersey judges for the most part allow county prosecutors to ignore that forty-five day requirement with impunity. Thus if the forty-five days has passed with the prosecutor having taken no court action, the New Jersey gun owner is far from home free.
Even with no conviction, and no finding of domestic violence, seizure of a firearm under the Act constitutes a serious threat to gun owners' Second Amendment rights. N.J.S. 2C:58-3c(8) specifies that anyone whose firearm has been so seized is immediately disqualified from obtaining or retaining a firearms purchaser identifier card. This disqualification continues until the firearm is returned. If the firearm is never returned, New Jersey law makes the disqualification permanent.
Gun Lawyers in New Jersey™ believe that the permanent ban just mentioned constitutes a blatant violation of the Second Amendment of the United States Constitution. They are ready, willing, and able to challenge that provision in court. Regardless, possessing a firearm without the FID exposes the possessor to a prison sentence and high fines. For these reasons, firearms owners must never walk away from the seized firearm under the belief that they can just replace it with another. They can't. Treat firearms seizures therefore with the seriousness they deserve.
Federal Domestic Violence Laws and the Second Amendment
As with New Jersey, the federal government has enacted laws relating to domestic violence. These laws are set forth in Chapter 110A of Title 18 of the United States Code. Severely less detailed than New Jersey's Prevention of Domestic Violence Act, Chapter 110A nonetheless defines domestic violence-related crimes, and prescribes harsh penalties.
In most instances, New Jersey is more restrictive than federal law when it comes to exercising Second Amendment rights. For convictions arising out of domestic violence situations, however, federal restrictions upon Second Amendment rights surpass those of New Jersey.
When a person has been convicted of a crime, both New Jersey law and federal law take away that person's Second Amendment rights. Under the New Jersey Code of Criminal Justice, if the conviction arose from a domestic violence situation, it need not have been a conviction for a crime. N.J.S. 2C:58-3c(1) specifies that no firearms purchaser identification card can be issued when the person has been convicted of even a disorderly persons offense when the charge arose out of an act of domestic violence.
A person charged in New Jersey with domestic violence simple assault may be able to retain Second Amendment rights that N.J.S. 2C:58-3c(1) would otherwise take away through this strategy: Negotiate a downgrade of the simple assault charge to violation of a municipal ordinance. Then plead guilty to that downgraded charge. A solution even better than that, of course, is to fight the simple assault charge in court and win!
The strategies just described preserve the gun owner's Second Amendment rights under New Jersey law. Under federal law, however, the story may not end there. 18 U.S.C. Section 922(g)(9) specifies that it is unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess any firearm or ammunition. 18 U.S.C. Section 921(a)(33)(A) defines “misdemeanor crime of domestic violence” to include any misdemeanor that has, as an element, use or attempted use of physical force against persons presently or previously in specified domestic relationships. These specified relationships include spouse, parent, or “a person similarly situated.” Thus, even when the alleged domestic violence offense is downgraded to a municipal ordinance, if an element of that ordinance involves physical force, actual or just attempted, the federal prohibition can apply.
Domestic Violence Charges and New Jersey Gun Ownership--Concluding Thoughts
The information above is only a summary (and a brief one at that) of how federal law, and laws relating to New Jersey's Prevention of Domestic Violence Act affect Second Amendment rights. These laws are complicated. New Jersey gun owners affected by these laws should seek skilled legal help immediately upon becoming involved in a domestic violence situation. Gun Lawyers in New Jersey™ can provide that help.
Time is of the essence.
Allan Marain |
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