Domestic Violence Charges and New Jersey Gun Ownership

Domestic Violence Charges and New Jersey Gun Ownership--
An Overview

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 the area of domestic violence, however, federal law is sometimes more restrictive than even 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 rationale.

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 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 clear violation of the Second Amendment. We discuss this violation in greater detail in the federal section just below. Until courts invalidate these laws, however, or until these laws change, 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. Two particular federal laws interrelate domestic violence restraining orders with the Second Amendment. Those laws are 18 U.S.C. 922(g)(8) and 18 U.S.C. 922(g)(9).

18 U.S.C. 922(g)(8) specifies:

It shall be unlawful for any person...who is subject to a court order that
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(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury
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to possess any firearm or ammunition.

Gun Lawyers in New Jersey™ have long believed that 18 U.S.C. 922(g)(8) violates the Second Amendment. The Bruen decision reinforced that belief. The United States District Court for the Western District of Texas, Pecos Division, has now weighed in. United States of America, v. Litsson Antonio Perez-Gallan, PE:22-CR-00427-DC, decided November 10, 2022, holds that in criminalizing possession of firearms while a domestic violence restraining order is in effect, 18 U.S.C. 922(g)(8) is unconstitutional. In the Unites States Court of Appeals for the Fifth Circuit, United States of American v. Zackey Rahimi, Docket 21-11001, filed March 2, 2023, reached the same conclusion. Both courts held that 18 U.S.C. 922(g)(8) violates the Second Amendment.

18 U.S.C. 922(g)(9) specifies:

It shall be unlawful for any person...who has been convicted in any court 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.