Can My Weapons Be Taken if a Restraining Order is Filed Against Me?
If a Restraining Order is filed against you, the police may confiscate any type of weapon or weapons that may cause harm or bodily injury to the alleged victim, including but not limited to firearms or your Firearms Purchaser Identification Card and Carry Permit. In fact, the Prevention of Domestic Violence Act requires the police to seize all weapons and permits if there is probable cause of domestic violence.
In addition to the initial confiscation, the State can move, pursuant to N.J.S.A. 2C:58-1, et. seq. and N.J.S.A. 2 C:27:17 et. seq, that the weapons not be returned and the card and permit revoked. However, as Defendant you are entitled to a Weapons Forfeiture Hearing. During this hearing, the court will determine whether or not your weapons will be returned.
In New Jersey there are different types of Restraining Orders, including Temporary Restraining Orders (TRO) and Final Restraining Orders (FRO). Whether or not the TRO is converted into a FRO will have an effect on whether or not your weapons are returned to you, but it is not the final determining factor. If the court issues a FRO against you, it is more likely than not that you will not be getting your weapons back; however, you are still entitled to a hearing. Conversely, if the TRO is dismissed and a FRO is not issued, the court may still hold a hearing to determine whether or not your weapons will be returned to you and whether or not the forfeiture is found to still be warranted pursuant to N.J.S.A. 2C58-3c.
“The burden is on the State to prove, ‘by a preponderance of the evidence, that forfeiture is legally warranted.’” In re Forfeiture of Personal Weapons and Firearms Identification Card belonging to F.M., 225 N.J. 487, 508 (2016)(emphasis in original)(quoting State v. Cordoma, 372, N.J.Super. 524, 533 (App. Div. 2004)). At the forfeiture hearing the court will look at, amongst other things, whether or not a FRO was issued, whether the weapon or weapons were actually used in an act of domestic violence, and whether you have a criminal history.
If the facts of your matter demonstrate that pursuant to the statutory law you are unfit to possess firearms and weapons, and such possession poses a threat to the public in general and to the alleged victim of domestic violence in particular, the State will request that an Order be entered directing that your weapons not be returned and that any Firearms Purchaser Identification Card and Carry Permit that you possess be revoked. As such, it is important that you hire a qualified and experienced attorney to navigate through this process.
If you or someone you know has any questions about a Weapons Forfeiture Hearing and what that entails, contact one of the skilled divorce lawyers in New Jersey at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.
Written by: William P. Lemega, Esq.