The Right to Bear Arms vs. The Domestic Violence Law

As we all know, a police officer has the authority to seize any weapon that is evidence or an instrument of a crime. However, there is another instance where the government can require to you forfeit your firearms, which is a domestic violence situation.

Under the Prevention of Domestic Violence Act of 1991, the government may seize your weapons in two different situations. If a police officer who has probable cause to believe that an act of domestic violence has been committed and reasonably believes that the weapon would expose the victim to a risk of serious bodily injury, the officer can take possession of all weapons in a home or other place of storage. This includes all types of guns, bows and arrows, BB guns, pellet guns, antique firearms and rifles and antique swords. Any type of instrument or weapon that could be used to cause harm to a victim will be seized.

Once seized, the police will deliver the seized weapons to the county prosecutor and keep an inventory of them. Next, the prosecutor’s office is given 45 days from the seizure of the weapons to determine whether to institute legal action against the owner of the weapon or return it or them to the owner. So if legal action is not instituted against the owner within 45 days, the weapons must be returned.

Another situation is if a domestic violence victim obtains a Final Restraining Order (“FRO”) directing that the alleged domestic violence assailant surrender a named weapon, the police will surrender of it or them. There also have been instances where a judge will order the seizure of weapons when a Temporary Restraining Order (“TRO”) has been issued.

But in any scenario, the person charged has the right to a weapons forfeiture hearing, during which, the court will determine whether the weapons should be returned to the owner. A defendant is less likely to have weapons returned if he or she has a criminal history, if a final restraining order has been issued, if the weapons were actually used in an act of domestic violence, or if the court believes that the public interest requires that the weapons should not be returned.

If the court decides it will not return the weapons to the owner, the prosecutor will dispose of them, if the owner does not arrange for a transfer or sale to an appropriate person within 60 days. Also, a judge may revoke the owner’s firearms purchase ID card or any permit, license, or authorization to purchase weapons. These laws were put in place to prevent domestic violence and to keep guns out of the hands of the wrong people. But if a gun owner is innocent of the charge or charges, the weapons forfeiture hearing is a safeguard to protect a person’s right to keep legal firearms and other weapons. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.