§ 6.2.8 Return of Firearms Seized by Police for Safe Keeping
Where police seize or take possession of legally owned firearms for safe keeping purposes and where the firearms are not contraband or instrumentalities or crime, and the weapons are not forfeited, there may no legal basis for law enforcement to keep those weapons. A firearm, which is voluntary (sic) surrendered to police for safe keeping purposes or seized by police based on a reasonable belief that the presence of a firearm presents a risk of serious bodily injury to a victim of domestic violence is only being held temporarily by police as part of their community care taker function. In such cases, there was no transfer or exchange of ownership of the firearm. In these cases, the firearm had not been used or threatened to have been used in the commission of a criminal act. The firearm is being removed from the control of the owner to prevent the possibility of a criminal act. If the firearm had been used or threatened to have been used, the firearm should be considered an instrumentality of a crime and then held as evidence of the crime.
When firearms are seized for safe keeping purposes in connection with a domestic violence incident, the State domestic violence laws provide that weapons shall be returned to the owner except upon order of the Superior Court. (See also § 22.6 of this manual.) The County Prosecutor, upon notice to the owner, may petition a judge of the Family Part of the Superior Court within 45 days of seizure to obtain title to the seized weapons or to revoke any permits, licenses held by the owner. A court may order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered firearms dealer within 60 days or may order the weapons forfeited to the State and the weapons destroyed.
While there is no statutory procedure for the return of a firearm taken for safe keeping purposes, there is a basis both in existing State law and case law for the establishment of a procedure for the return of a firearm taken for safe keeping purposes or for the return of property stolen from its lawful owner. The decision in State v. Cunningham provides guidance for the establishment of a standardized procedure for the return of firearms. In Cunningham, the Court said:
In Cunningham, the court noted that State law would prohibit the return of a firearm to its owner at a time when the owner would be disqualified from obtaining a permit to acquire the firearm in accordance with the provisions of N.J.S.A. 2C:58-3. In that case, the court held that Cunningham was not qualified to take possession of his firearm because it would not be in the best interest of the public health, safety or welfare. Cunningham was required to transfer the firearm to a person legally qualified to take possession of it. He was entitled to the proceeds of the sale. Because the firearm was not contraband or an instrumentality of a crime there was no basis for the State to seek forfeiture of the firearm and to have it destroyed.
The majority opinion in Cunningham did not specify a procedure that should be used for the return of a firearm seized by police for safe keeping purposes. However, the Cunningham majority expressed a valid point: firearms cannot be returned to an individual who is not qualified to take possession of them. Thus, there is a basis for the establishment of a uniform procedure for the return of firearms taken from safe keeping purposes. There is no requirement that the individual must complete a new application to purchase a handgun, if the firearm seized was a handgun, or a new application for a firearms purchaser identification card, if the firearm seized was a rifle or shotgun. While the person may have a basic ownership right to regain possession of the seized firearms, it is incumbent upon law enforcement to determine that this person is not disqualified from taking possession of the firearms.
Before the firearm can be returned to the owner, the gun owner should be required to complete a certification for the return of weapons seized by police for safe keeping purposes in which the person certifies that he or she is not subject to any of the disabilities enumerated in the initial application to purchase a firearm. A false statement on a certification is a fourth degree crime. Either the law enforcement agency or the County Prosecutor’s Office should conduct a NCIC check to determine whether the firearm is listed as stolen and run a National Instant Criminal Background Check System (NICS) pursuant to the federal gun control law to determine if the owner is disqualified from possessing a firearm. In New Jersey, the appropriate agency should contact the State Police, the point of contact for the NICS check, which also will check the State registry to determine if the owner is disqualified from possessing a firearm. If the owner is disqualified, the firearm should not be returned to the owner who must then make arrangements for the proper disposition of the firearms, either by sale to a person legally qualified to take possession of them, or to a licensed firearms dealer. The State cannot simply have the firearms destroyed without giving the owner an opportunity to lawfully dispose of the firearms.
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