Recently, the New Jersey Supreme Court provided some important clarification with regard to the issue of firearm forfeiture in the wake of an arrest and firearm seizure pursuant to the New Jersey Prevention of Domestic Violence Act (NJPDVA), N.J.S.A. 2C:25-17 to 35. In In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., the Supreme Court squarely addressed the following important question: Under what circumstances can a personal firearm and firearms purchaser identification card seized pursuant to the NJPDVA be forfeited pursuant to the firearms forfeiture statute N.J.S.A. 2C:58-3(c)(5)?
The Facts & Evidence
The firearm owner at the center of this case – “F.M.” – was involved in a Domestic Violence proceeding in March 2010, wherein he was named defendant. As a result of the domestic violence incident, F.M.’s personal firearm and identification card were confiscated by the police. In addition to the domestic violence proceedings, F.M. was charged with simple assault. Notably, F.M. himself worked as a police officer and, therefore, had not only a personal weapon but also a service weapon. At a hearing to determine whether a Final Restraining Order should be entered against F.M. for the protection of his wife, the Court decided against the entry of same and dismissed the case against F.M.
Although one might think that, upon dismissal of an FRO, any weapons seized in connection with the restraining order are automatically returned to the defendant, this is not always the case. The State may move to forfeit a personal weapon and identification card under N.J.S.A. 2C:58-3(c)(5) even if the domestic violence case under which the weapons were initially seized is dismissed. This is precisely what the State did in the instant case. Reserving on the State’s motion, the trial court judge noted that the court would issue a decision on the final disposition of F.M.’s personal and service weapons after he completed a batterer-intervention program and attended individual counseling. F.M. did so, and subsequently filed a motion seeking the return of his personal weapon, the weapon at issue in this matter.
The State opposed F.M.’s motion, arguing that the return of F.M.’s personal firearm and identification card would not be in the interest of the public health, safety, or welfare. To make out its case, the State relied upon the testimony of F.M.’s wife, who testified as to F.M’s history of violence against her, as well as the arresting office who responded to the March 2010 incident and confiscated F.M.’s personal firearm and identification card. Interestingly, the State also relied upon the testimony of two licensed psychologists who had previously performed Fitness for Duty (FFD) evaluations on F.M., and had interviewed F.M.’s wife in connection with same. Although their evaluations were directly applicable to the issue of F.M.’s service weapons, their testimony was permitted to address the issue of forfeiture of his personal weapon as well. One of the psychologists had concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger  to himself or others.” The other psychologist concluded that, although he couldn’t be classified as having a personality disorder, F.M. exhibited elements of various personality disorders that negatively impacted his ability to effectively serve as a police officer; he concluded that F.M. suffered from “a nearly paranoid sense that everyone was out to get him, poor impulse control, poor anger control, and poor judgment.” He also stated that he believed the public would be endangered if F.M. continued to serve as an armed police officer and that F.M was not fit for duty.
The Path to the N.J. Supreme Court
Largely because there were no findings of clinical mental illness or personality disorder – but rather only elements of same, or what the trial court judge called “subclinical personality styles and tendencies” – the trial judge ordered the return of the personal weapon and identification card. Interestingly, the Court rejected the psychologists’ conclusions as to the credibility of F.M.’s wife, because the judge him or herself had had more “exposure” to the altercations between F.M. and his wife as the Family Part Judge handling their domestic violence proceedings. The Family Part judge also seems to have concluded that F.M.’s wife had played a part in instigating the dispute that led to the seizure of the weapon, and that there was no prior instance during which F.M. had actually used a gun to harm anyone. The Appellate Division largely agreed with the Family Part judge’s analysis and findings, noting that deference is accorded to Family Part judges given their intimate involvement with the facts of family part cases. The State then appealed to the Supreme Court, arguing that the Family Part judge had misapplied the law.
The N.J. Supreme Court Decision
The N.J. Supreme Court agreed with the State as to its contention that the Family Part judge had misapplied the law and, in according the Family Part deference, the Appellate Division had erred. In making its decision, the Court looked to the applicable statute which describes who may obtain a personal firearm and identification card, N.J.S.A. 2C:58-3(c), which states:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.
The statute goes on to list 10 “disqualifiers” for purchase of a personal weapon and issuance of a firearms purchaser identification card, including:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense; [. . .](5) To any person where the issuance would not be in the interest of the public health, safety, or welfare; [. . .].
Relying on prior decisions, the Court noted that, in order to forfeit a weapon under subpart five (5) of the statute, the State only had to prove by a preponderance of the evidence (a lower evidentiary standard equating to “more likely than not”) that an individual’s possession of a firearm would be against the public health, safety, or welfare. The purpose of the low evidentiary standard is, perhaps obviously, “to prevent firearms from coming into the hands of persons likely to pose a danger to the public.”
Contrary to the holding in the lower courts, the Supreme Court found that the testimony of F.M.’s wife, the responding officer, and the psychologists – despite their lack of finding a clinical mental illness or personality disorder – suggested that F.M.’s possession of a firearm would indeed more likely than not pose a danger to the public.
Takeaways for the Family Law Practitioner
Those of us who practice family law are well versed in the precedential law that says that the Appellate Division and Supreme Court accord great deference to Family Part Judges. In this case, however, the Supreme Court reminded us that, although such deference is given to Family Part judges as to the facts of a case, a judge’s legal determinations are of course not immune to review by the higher courts. A Family Part judge may have a greater “feel” for the case given its familiarity with the parties and issues, but – and perhaps this is stating the obvious – that doesn’t mean their application of the law to the facts must be given deference on appeal. In this case, the Family Part overlooked the plain language of the statute and appropriate evidentiary standard, and instead made its own justifications for returning the personal weapon and identification card to the defendant.
For those involved in domestic violence matters, this case also serves as a reminder that weapons forfeiture under that statute is black-and-white when an FRO is entered. If a final restraining order is entered, under subpart (1) of N.J.S.A. 2C:58-3(c), the defendant’s firearm and identification card will be forfeited, something that must be taken into consideration if you are representing a defendant who is a licensed firearm owner.
And yet, if the domestic violence case is dismissed, the issue becomes more gray. Even if the domestic violence matter that led to the initial confiscation of a firearm and ID card is dismissed against a firearm-owning defendant, the case discussed here makes clear that weapons can still be forfeited if there is credible testimony showing by a preponderance of the evidence that the defendant may be a danger to the public. Notably, the outcome here also shows that, even if a plaintiff’s testimony in his or her domestic violence matter is insufficient to sustain the entry of a restraining order under the NJPDVA, his or her testimony may be used to prove that the defendant’s firearm and identification card should be forfeited on other grounds.
Whether you represent the party pursuing a restraining order or defending against one, this is important knowledge to have when dealing with a firearm-owning client or adverse party in a domestic violence matter.