The Second Amendment to the U.S. Constitution gives us the right to bear arms, but this right is a hot topic in today’s society. Gun ownership is the subject of heated debates, especially as the number of mass shootings continues to grow. At the heart of this debate is a person’s right to own a gun versus a person’s right to be safe in public from those who want to use guns for harm. Which takes precedence—public safety or gun ownership—or is there a way for these concerns to be handled without taking away a constitutional right?
In a recent case, the New Jersey Supreme Court addressed the issue of gun ownership and firearm forfeiture laws in the context of a domestic violence matter. That case, In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., provides clarity on how courts should determine when a personal firearm, or a purchaser identification card, can be seized under the New Jersey Prevention of Domestic Violence Act.
F.M. was a police officer who owned a personal weapon and a service weapon. When F.M.’s wife filed a domestic violence claim against him in March of 2010, his firearms were confiscated, along with his identification card. The court ultimately decided not to enter a Final Restraining Order against F.M., but it also did not automatically return the confiscated weapons.
In some cases, the State can move to have personal weapons and firearm paraphernalia confiscated under N.J.S.A. 2C:58-3(c)(5), even if the domestic violence case that prompted the confiscation has been dismissed. In F.M.’s case, the State determined that a final decision on the confiscation of his personal firearm could be held after he attended counseling and completed an intervention program. F.M. met these criteria and filed for the return of his personal weapon. The State opposed his motion, citing testimony from his wife, as well as licensed psychologists who had performed Fitness for Duty evaluations, that pointed to F.M. as a danger to society. However, the trial judge ordered the return of the firearm.
At the Supreme Court
On appeal, the State argued that the family judge who ordered the weapon’s return had misapplied the law. The New Jersey Supreme Court agreed with this argument, citing N.J.S.A. 2C:58-3(c. This statute dictates who can apply for and receive a personal firearm and identification card, and qualifies that “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…shall be denied a permit to purchase a handgun or firearms purchaser identification card, except as hereinafter set forth.”
The statute goes on to list a variety of factors that would disqualify a person from owning a gun or applying for a permit. One such disqualifier states that “any person who has been convicted of any crime…or an act of domestic violence” should not be granted access to a firearm. It is this portion of the law that the NJ Supreme Court used to rule that F.M.’s firearm should not be returned to him even though the lower court had declined to enter a domestic violence restraining order.
Know Your Rights
If you are charged with domestic violence, it could have a widespread impact on every aspect of your life, including your right to own or use guns. For more information, or a consultation on your case, contact Scott Gorman, a leading Morristown domestic violence lawyer at The Gorman Law Firm, today.
Published in Categories: Domestic Violence