FORFEITURE/SEIZURE OF FIREARMS
Firearms are seized/forfeited primarily by four legal methods under New Jersey law: Chapter 64 (Criminal Forfeiture), Chapter 25 (Domestic Violence Forfeiture), Chapter 2A (Health Care Professionals Duty to Warn) and Chapter 58 (“Red Flag” Extreme Risk Protective Order).
Firearms are forfeited in two ways under Chapter 64. First, firearms that are unlawfully possessed, carried, acquired, or used are considered to be prima facie contraband. Firearms that are part of an illegal activity or proceeds of illegal activities are also subject to forfeiture. Whenever firearms that are not prima facie contraband are subject to forfeiture, the State must institute a civil action within 90 days of the seizure. After the State files a verified complaint and those with an interest in the property file a verified answer, the court will have a summary hearing to determine the disposition of the property. In a summary hearing, a person does not have a right to a jury trial and furthermore, the proofs by the State are based upon preponderance of the evidence, the lowest burden of proof.
All weapons seized pursuant to the Domestic Violence Law must be delivered to the County Prosecutor by the law enforcement officer who seized them. The officer must also prepare a written inventory of all the weapons. Within 45 days of the seizure, the County Prosecutor has to decide whether to file a forfeiture action to obtain title to the weapons and to revoke any and all permits and licenses, or whether to return the firearms to the owner (N.J.S. 2C:25-21). Routinely, the Prosecutor simply files the forfeiture action on every seizure. A court hearing is supposed to take place within 15 days from the notice by the Prosecutor. The court may order the firearms returned, or may order them disposed of or sold, and/or order revocation of all permits and licenses. The court may order surrender of any other owned firearms. The court may order the firearms forfeited or order any other relief it may deem appropriate (N.J.S. 2C:25-21). The forfeiture may still take place even if the underlying domestic violence complaint or restraining order has been dismissed. (See DOMESTIC VIOLENCE CONFISCATION OF FIREARMS - NEW JERSEY GUN LAW.)
Under N.J.S. 2A:62A-16 any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work, or marriage and family therapy shall notify the chief law enforcement officer of the municipality in which the patient resides or the Superintendent of State Police if the patient resides in a municipality that does not have a full-time police department that a duty to warn and protect has been incurred with respect to the patient and shall provide to the chief law enforcement officer or superintendent, as appropriate, the patient’s name and other non-clinical identifying information. Law enforcement, will use that information to ascertain whether the patient has been issued a firearms purchaser identification card, permit to purchase a handgun, or any other permit or license authorizing possession of a firearm.
If the patient has been issued a firearm license, or if there is information indicating that the patient otherwise may have access to a firearm, the information provided may be used in determining whether the patient has become subject to any of the disabilities set forth in subsection c. of N.J.S.2C:58-3. If so, any identification card or permit issued to the patient shall be void and subject to revocation by the Superior Court as per the law.
If the court determines that the patient disqualified and revokes the patient’s firearms purchaser identification card, the court may order the patient to surrender to the county prosecutor any firearm owned by or accessible to the patient and order the prosecutor to dispose of the firearms. When the court orders the county prosecutor to dispose of the firearms, the prosecutor shall dispose of the firearms as provided in N.J.S.2C:64-6. (See question 2 above)
If the court, upon motion of the prosecutor, finds probable cause that the patient has failed to surrender any firearm, card, or permit, the court may order a search for and removal of these items at any location where the judge has reasonable cause to believe these items are located. The judge shall state with specificity the reasons and the scope of the search and seizure authorized by the order.
A firearm surrendered or seized pursuant to this subsection which is not legally owned by the patient shall be immediately returned to the legal owner of the firearm if the legal owner submits a written request to the prosecutor attesting that the patient does not have access to the firearm.
A law enforcement officer or agency shall not be held liable in any civil action brought by any person for failing to learn of, locate, or seize a firearm pursuant to this subsection.
A patient who is determined to be subject to any of the disabilities and submits a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof in accordance with that paragraph shall be entitled to the reinstatement of any firearms license or permit
When the following conditions exist:
- The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat; or
- The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.
Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work, or marriage and family therapy, is given immunity from any civil liability for a patient's violent act against another person or himself unless the practitioner has incurred a duty to warn and protect the potential victim and fails to discharge that duty by not doing any one or more of the following:
- Arranging for the patient to be admitted voluntarily to a psychiatric unit of a general hospital, a short-term care facility, a special psychiatric hospital or a psychiatric facility;
- Initiating procedures for involuntary commitment to treatment of the patient to an outpatient treatment provider, a short-term care facility, a special psychiatric hospital or a psychiatric facility;
- Advising a local law enforcement authority of the patient's threat and the identity of the intended victim;
- Warning the intended victim of the threat, or, in the case of an intended victim who is under the age of 18, warning the parent or guardian of the intended victim; or
- If the patient is under the age of 18 and threatens to commit suicide or bodily injury upon himself, warning the parent or guardian of the patient.
Note: A practitioner who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work or marriage and family therapy who, in complying with subsection c. of this section, discloses a privileged communication, is immune from civil liability in regard to that disclosure.
Note: Under N.J.S. 2A:62A-17 When a duty to warn and protect arises from the receipt of a privileged communication from a patient in a drug or alcohol abuse program governed by federal law, a licensed practitioner may be required to obtain a court order authorizing disclosure prior to disclosure of information about the patient including the patient's threat of violence, in accordance with 42 U.S.C. s. 290dd-3 and 42 U.S.C. s. 290ee-3 and regulations promulgated thereunder.
A family or household member or law enforcement officer may file a petition for a temporary extreme risk protective order alleging that the respondent poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm. The petition shall be heard by the court in an expedited manner. Petition forms are be readily available at the courts, and at State, county, and municipal law enforcement agencies.
The temporary extreme risk protective order shall prohibit the respondent from having custody or control of, owning, purchasing, possessing, or receiving firearms or ammunition, and from securing or holding a firearms license or permit during the period the protective order is in effect. Additionally the order shall require the respondent to surrender firearms and ammunition in the respondent’s custody or control, or which the respondent possesses or owns, and any firearms license or permit and shall be immediately revoked as per of N.J.S.2C:58-3f.
(See “RED FLAG” EXTREME RISK PROTECTIVE ORDERS CONFISCATION OF FIREARMS - NEW JERSEY GUN LAW.)
Seized firearms are normally run through NCIC to check if they are stolen. Additionally, a State computer check of firearm records is run on the individual who possessed the firearms to see if the person was in fact licensed to acquire the seized firearms.
In our observation, most authorities disgracefully care for seized firearms. No statutory requirement exists to maintain seized firearms in good condition. We have seen firearms piled one on top of the other into the trunk of a law enforcement vehicle. Guns are banged about and stored in conditions conducive to rust, scratching and other damage. We have seen handguns one on top of another in milk crates and rifles and shotguns stored barrel down in garbage cans. Sometimes, firearms are inadvertently destroyed due to “clerical error” by the authorities.
Firearms forfeited to the State are generally destroyed by the State. The only other legal disposition of the firearms is the donation to the National Guard Museum if they have any present or historical military value pursuant to N.J.S. 2C:64-9.
New Jersey’s “M.O.” is to seize firearms and ask questions later. We have seen motions filed by the State to take away a person’s guns with absolutely no basis in law, and have a judge grant the motion under some vague notion of public safety. We have no doubt that should a “Katrina” type situation befall New Jersey, the State will try to take away guns. There is no law prohibiting the State from such actions. There is, however, a Federal law U.S.C. 42 § 5207, which prohibits any “…officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency…” from arbitrarily seizing guns. This federal law was passed due to the “Katrina” fiasco. (See the Selected Federal Laws section in the Appendix for USC 42 § 5207) New Jersey has yet to pass any such protective law, even though the majority of other states have passed such laws.
es! On January 14, 2004, New Jersey’s gun laws changed and a brand new category of persons was banned from guns. Anyone who has had firearms seized and not returned because of a domestic violence allegation, lost their gun rights.
Although this law has been in effect for almost 10 years, the New Jersey State Police have failed to ask about it on New Jersey’s gun permit application forms and Certificates of Eligibility. Are the New Jersey State Police incompetent or is this a conspiracy to criminally entrap unsuspecting gun owners? Once the question is on all the forms it will educate the public about this law. The New Jersey State Police need to do their job and fix the forms now! The law was changed in two places:
NJS 2C: 58-3c(8) “No handgun purchase permit or firearms purchaser identification card shall be issued: … To any person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned.”
NJS 2C:39-7b(3) “A person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned… pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.)who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree
In other words, if the State is holding your guns, or your guns were not returned to you (e.g. sold to a dealer, transferred to a third party, destroyed by the State, etc.) you lose your gun rights in NJ. Anyone with guns “seized and not returned” who purchases or possesses a firearm faces five years in the New Jersey State Prison and a $15,000 fine.
LOOPHOLES & PITFALLS:
Frequently you hear of proposed legislation to allow the State to sell firearms that it has seized. Although no firearm enthusiast likes to see firearms being destroyed, it would be a serious mistake to support this type of legislation. If the State were allowed to sell forfeited firearms, it would provide new financial incentive and encourage even more seizure and forfeiture of law-abiding citizens’ firearms!
It is important to maintain good records of firearms that one possesses. These records should be maintained in a separate location from the firearms themselves. These records may avoid firearms becoming “lost” or “unaccounted for.” It is also a good idea to keep on hand protective firearm covers such as “silicone socks,” which are treated with silicone to prevent rust and are available at most gun shops. Many gun cases will promote rust if firearms are stored for a long period of time. If you fear forfeiture of your firearms, it is also important to have an attorney who is knowledgeable about firearms and New Jersey gun law to provide assistance when necessary.
Warning: The gun disqualifier of “having a firearm seized but not returned” was enacted into law in 2004. Yet the state has failed to include questioning about this disqualifier on its gun permit applications and “Certificates of Eligibility” (for long arm transfers.) This sets a trap for the unwary to unlawfully possess firearms. Not only could you be denied your permit but you could be prosecuted as well. Your gun rights are revoked upon the mere seizure of your firearms. It is important to pursue and succeed at a hearing to return your seized firearms, because only the return of your guns will guarantee restoration of your gun rights. In other words, your rights are attached to your guns. If you have ever had a “firearm seized but not returned” (even sold to dealer instead of being returned), you are in danger of prosecution for gun purchase, possession, ownership or control.
Have the NJ State Police failed to fix the forms to keep folks in the dark so that they don’t fight to get their guns returned? If people knew about this law many would NOT simply agree to have their seized guns sold to a dealer, transferred to a third party, or forfeited to the State. Then, the prosecutors and the courts would have to do lot more hearings for gun returns. (Note: prosecutors and the judges are under no legal obligation tell the unsuspecting former gun owners that their gun rights will be lost by making such a deal with the State.)
No other state has such a law. However, it is the law in NJ. Until it is repealed, many gun owners are failing to insist upon the return of their seized guns and prohibited persons are unknowingly acquiring guns. Maybe that is the plan all along?
New Jersey Gun Law - 25th Anniversary Edition
By Evan F. Nappen, Esq.