If you're facing a restraining order for domestic violence allegations, you might wonder how an order could affect your constitutional right to own weapons such as firearms.
It's vital you seek legal representation immediately if you're dealing with domestic violence accusations, as the consequences can be severe. An attorney such as Joseph D. Lento will fight to preserve your constitutional rights at all costs. In the meantime, though, we can summarize the general issues around weapons seizure in NJ restraining order cases.
Restraining Orders
A restraining order is a court-issued document that forbids someone from behaving in a certain way towards another person. The order might be temporary (TRO) or final (FRO), depending on the circumstances.
A TRO or FRO can include an order for the defendant to relinquish any weapons they own or possess. In some cases, this could lead to the permanent deprivation of your right to own weapons, which is why you need an experienced and committed attorney on your side to help defend your case.
What NJ Law Considers a “Weapon”
Under NJ law, “weapons” don't just mean firearms. Under Section 2C:39-1 of the N.J.S.A, a weapon is any object which may inflict serious bodily injury or be capable of lethal use. Examples of weapons include:
- Firearms
- Stun guns
- Daggers
- Switchblade knives
- Metal knuckles
- Weapon components
This is by no means an exhaustive list. There are many objects which could be considered weapons in a domestic violence case, depending on the circumstances.
When the Authorities Can Seize Weapons in NJ
Under Section 5.10.4 of the NJ Domestic Violence Procedures Manual (DVPM), the authorities can seize weapons if three conditions are met:
- The defendant owns or can access firearms
- The defendant committed an act of domestic violence
- There's an increased risk of injury or danger to the victim due to the defendant possessing a firearm
The seizure may be temporary or permanent, depending on the type of restraining order issued and the conditions attached.
The Process for Seizing Weapons
First, law enforcement officers will serve you with a TRO. If the order includes an order to seize any weapons you own, officers will visit your residence, and you're expected to voluntarily surrender any weapons in your possession.
- If you're not present at the location, officers can still remove any weapons they find
- It's not uncommon for the courts to issue a search warrant, which gives officers permission to search the premises to confirm there are no concealed weapons present
- If you don't hand over any weapons to law enforcement, you're violating the terms of the restraining order, which may lead to criminal penalties
Defendants can face serious criminal charges if they fail to hand over any weapons they possess. Seek legal counsel immediately if you're in any doubt over how to comply with a TRO or FRO.
Contesting a Restraining Order
First, make sure you instruct an attorney and attend your final order hearing. Otherwise, the judge may pass the FRO against you without contest, meaning you won't have a chance to make your case.
At the FRO hearing, your attorney will present your defense to show why the case should be dismissed. If, based on the “preponderance of the evidence,” the judge grants the FRO, your attorney can still appeal the order. Depending on the circumstances, your attorney may argue that the judge:
- Misunderstood the case facts
- Applied the law incorrectly
- Failed to make complete and valid findings
- Misapplied rules regarding permissible evidence
A skilled criminal defense attorney like Joseph D. Lento can ensure you have a fair hearing.
How to Reclaim Seized Weapons
If the judge decides not to grant a final restraining order, or the plaintiff drops the case, you might get your weapons back––it's not automatic.
Under Section 3.17.2(B)(1) of the New Jersey DVPM, the county prosecutor has 45 days from the seizure date to determine whether to return your weapons.
If the prosecutor believes it's unsafe for you to own a weapon, they can seek a court order to revoke your weapons in the long term. This involves a Weapons Forfeiture Hearing.
- Your attorney can plead your case and explain why your weapons should be returned to you
- If the judge finds against you, it will be very difficult to overturn the order
On the other hand, the county prosecutor may decide there's no risk in allowing you to retrieve your weapons, and they won't apply for a hearing. Your attorney can explain how to reclaim any seized weapons at this stage.
Firearm Ownership and FROs
Can you own a firearm if there's a final restraining order made against you? Typically, no.
If the judge grants a FRO, it's because they believe you remain a danger to others. So, while the FRO remains in place, you may be prohibited from owning or possessing a firearm. However, your attorney can sometimes appeal the FRO on the grounds that the judge misapplied the law or misunderstood the facts of the case.
It may also be possible to modify or amend the FRO in some way that allows you to own a firearm.
Gun ownership in domestic violence cases is a complex issue. Consult with your attorney immediately if you're subject to a FRO and wish to reclaim your firearms.
Why You Need an Attorney for Restraining Order Cases in NJ
If you're facing a temporary or permanent restraining order, it's crucial you get the legal advice you deserve at the earliest opportunity. You face losing significant legal rights and privileges, and you need an experienced attorney fighting for your interests.
Attorney Joseph D. Lento has the commitment, skill, and knowledge to stand in your corner. Contact him now at the Lento Law Firm on 888-535-3686 for legal representation.
