Seizure of Weapons in a Domestic Violence Arrest
When making any lawful arrest, the police have the authority to seize any weapon that is contraband or that is evidence or that may be an instrumentality of a crime. However, when making an arrest based on an alleged act of domestic violence, the police have additional authority to seize any and all weapons on the premises, regardless of whether they have anything at all to do with the alleged domestic violence or any illegal activity. New Jersey criminal defense attorney Lance Brown of Lance Brown & Associates fights to make sure this law is properly followed by law enforcement and that private individuals are not unfairly deprived of their constitutional right to keep and bear arms.
Process for Seizing Weapons in a Domestic Violence Arrest Under New Jersey Law
The law allowing for seizure of weapons in a domestic violence arrest is section 2C:25-21 of the New Jersey Code of Criminal Justice, part of the Prevention of Domestic Violence Act of 1991. This law requires a law enforcement officer to question persons present to determine whether or not there are any weapons on the premises. If there are, the officer is required to seize any weapon “that the officer reasonably believes would expose the victim to a risk of serious bodily injury.” When seizing any such firearm, the officer will also take away the firearm purchaser ID card or handgun permit from the person accused of domestic violence.
All weapons, ID cards and permits seized are turned over to the county prosecutor. The prosecutor has 45 days to petition the judge to either obtain title to the seized weapons or revoke any or all permits and licenses, or otherwise object to the return of the weapons to their owner. If the prosecutor petitions the judge, a hearing is held within 45 days on the matter. This hearing is held in Superior Court and is appealable to the Appellate Division. If the prosecutor does not petition the court within 45 days of the initial seizure, the weapons are to be returned to their owner.
If the court determines that the owner should not keep the weapons, the owner has 60 days to arrange for their transfer or sale to an appropriate person. After that period, the prosecutor is authorized to dispose of the weapons.
Two Standards for Seizing Weapons in a Domestic Violence Arrest
There are two different standards that apply before the police can seize weapons under the Domestic Violence Act. First, the law enforcement officer must have probable cause to believe that an act of domestic violence has been committed. Second, the officer must reasonably believe that failure to seize the weapon would expose the alleged victim to a risk of serious bodily injury. Probable cause is a high standard and is the same standard required by the Constitution in order to obtain a search warrant or arrest warrant in most cases. “Reasonable belief” is a lower standard, but still the officer should be able to articulate why the officer believes the weapons must be seized, based on the facts and the circumstances in that particular situation.
Civil Lawsuit for Wrongful Failure to Return a Seized Firearm
If the owner is entitled to have his weapons returned, but the prosecutor fails to return them after receiving a written request to do so, the owner may file a civil action to force the prosecutor to return the items. If successful in this civil suit, including proving bad faith on the part of the prosecutor, the gun owner can recover attorney’s fees and costs of the lawsuit.
Help with Domestic Violence Charges from an Experienced New Jersey Criminal Defense Attorney
Attorney Lance Brown is skilled and experienced in civil litigation as well as criminal defense in New Jersey. If you have been arrested for domestic violence, Lance Brown can provide you with advice and representation throughout the entire process, including challenging the imposition of restraining orders, making sure that your firearms are not unlawfully taken away, and ensuring that they are returned in accordance with the law. If you need help with a domestic violence charge in New Jersey, contact Lance Brown & Associates for immediate assistance.
