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New Jersey’s Firearm Forfeiture Law: You Get To Have A Hearing

by | Dec 29, 2016 | Uncategorized


New Jersey is known for having the strictest firearm laws in the United States (rivaled by only California). A person who has managed to secure either a pistol or rifle (both require separate licenses), can have those licenses/firearms subject to forfeiture in almost any criminal charge/conviction.

However, forfeiture is mandated under the State’s domestic violence laws. You don’t even have to be convicted or charged for this to happen. Under the law, a police officer responding to a domestic violence call is required to confiscate all weapons/licenses if there is probable cause that such violence did occur. If a charge is brought, a prosecutor then has 45 days to ask the court to permanently revoke those licenses/weapons from the person. Even if the charge is dismissed, getting your firearm back can and will be an uncomfortable, expensive, and time consuming process.

With or without a Final Restraining Order (in a domestic violence case), a person is still entitled to a weapons forfeiture hearing. Practically speaking, a court will typically uphold the forfeiture if a Final Restraining Order is entered, if the weapon was in any way connected to the charge, if you have any criminal history, or if the court simply wants to prevent you from having your firearm for any other reason.

Interestingly, New Jersey provides an exception for police officers in retaining their service weapon. The following is a case that illustrates all of these processes, a litigation spanning 3 years, and a police officer trying to overcome these hurdles.

In a December 15th the Appellate Division ruled that a police officer in a firearm forfeiture hearing is entitled to adjournment to get a lawyer, even when he was previously prepared to represent himself. In June 2012, an ex-girlfriend filed a domestic violence complaint. She claimed that he hit her in the forehead with his palm and threatened to kill her if she reported it to the police, which might cause him to lose his job. As the law required, a Temporary Restraining Order was immediately issued, and carried with it an order that the officer immediately surrender his firearms, weapons, and permits.

The officer, whose name was Miles, worked in Camden at the time and the forfeiture caused him to also lose his service weapon. A couple weeks later the ex-girlfriend dismissed the TRO, because she did not want him to lose his job.

Even with this dismissal, the prosecutor moved to have the forfeiture upheld “on the ground he posed a threat to public safety.” Miles and the State then made an agreement that if he took an anger management course and did a psychological evaluation, it would consider allowing him to be rearmed as a cop.

He did these, and received the State’s consent (a necessary rule) to carry his service weapon, as of November 2012. Just two days later, this consent was revoked because the State found out that Miles was previously charged with simple assault at a nightclub. But in February 2013 that charge was dismissed.

Once again, even though the other charge was dismissed, the prosecutor pursued its case in the forfeiture action. In July 2013, the hearing was postponed, because Miles wanted a lawyer. But at the September 10, 2013 hearing, he decided he would represent himself. It was again postponed because the court was too busy that day.

Roughly a month later, the hearing was finally set. Miles came to court prepared to defend himself, with the assumption that the prosecutor would only be using the domestic violence charge to prove its case that he was a “threat to public safety.” When he got there, he noticed numerous people from the nightclub incident and quickly realized that the prosecutor would be using both the assault charge and the domestic violence incident to prove its case. He was not prepared to defend himself on these, and he was not notified of it beforehand. So he told the court and asked for another postponement to hire a lawyer. The judge refused and the hearing went on.

The prosecutor presented 6 witnesses and Miles was forced to cross-examine them as best he could. Three days later, when the hearing resumed, he brought his attorney who he used for the assault charge. But the testimony from the first day of the hearing was too damaging and the court upheld the forfeiture. He appealed, saying that the judge abused its discretion in denying the adjournment request to seek counsel.

The Appeal Court judges felt that his request was not unreasonable. He was only ready to represent himself on one incident. “There is no indication the adjournment request was made in bad faith with a purpose to unduly delay the hearing or prejudice the State,” the upper court said. Also, the judges looked at the trial documents, including the transcripts of the direct and cross examinations of the 6 witnesses. The testimony of five of them “was pivotal to the court’s finding Miles was not fit to possess a weapon,” they said.

“We note the State’s direct examination of these witnesses included objectionable and prejudicial leading questions, to which Miles did not object, and some of the witnesses’ answers contained inadmissible hearsay. . .Miles’ cross-examination of the State’s witnesses was unskilled. Many of his questions drew out or repeated testimony damaging to his case, questions the average attorney would know not to ask.” As such, the matter was vacated and remanded for a brand new trial.

Hopefully, Miles will bring a lawyer to that one. This case is a perfect example of why it is important to hire an attorney, at least for cases that will have a major impact on your life and your employment. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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