Bill Text: NJ S3105 | 2020-2021 | Regular Session | Introduced


Bill Title: Requires certain family or household members and victims be notified when firearms are returned to persons charged with domestic violence or subject to extreme risk protection order.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2020-11-05 - Introduced in the Senate, Referred to Senate Law and Public Safety Committee [S3105 Detail]

Download: New_Jersey-2020-S3105-Introduced.html

SENATE, No. 3105

STATE OF NEW JERSEY

219th LEGISLATURE

 

INTRODUCED NOVEMBER 5, 2020

 


 

Sponsored by:

Senator  VIN GOPAL

District 11 (Monmouth)

 

 

 

 

SYNOPSIS

     Requires certain family or household members and victims be notified when firearms are returned to persons charged with domestic violence or subject to extreme risk protection order.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain returned and seized weapons and amending P.L.1991, c.261 and P.L.2018, c.35. 

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 5 of P.L.1991, c.261 (C.2C:25-21) is amended to read as follows:

     5.    a.  When a person claims to be a victim of domestic violence, and where a law enforcement officer responding to the incident finds probable cause to believe that domestic violence has occurred, the law enforcement officer shall arrest the person who is alleged to be the person who subjected the victim to domestic violence and shall sign a criminal complaint if:

     (1)   The victim exhibits signs of injury caused by an act of domestic violence;

     (2)   A warrant is in effect;

     (3)   There is probable cause to believe that the person has violated N.J.S.2C:29-9, and there is probable cause to believe that the person has been served with the order alleged to have been violated.  If the victim does not have a copy of a purported order, the officer may verify the existence of an order with the appropriate law enforcement agency; or

     (4)   There is probable cause to believe that a weapon as defined in N.J.S.2C:39-1 has been involved in the commission of an act of domestic violence.

     b.    A law enforcement officer may arrest a person; or may sign a criminal complaint against that person, or may do both, where there is probable cause to believe that an act of domestic violence has been committed, but where none of the conditions in subsection a. of this section applies.

     c.     (1)  As used in this section, the word "exhibits" is to be liberally construed to mean any indication that a victim has suffered bodily injury, which shall include physical pain or any impairment of physical condition. Where the victim exhibits no visible sign of injury, but states that an injury has occurred, the officer should consider other relevant factors in determining whether there is probable cause to make an arrest.

     (2)   In determining which party in a domestic violence incident is the victim where both parties exhibit signs of injury, the officer should consider the comparative extent of the injuries, the history of domestic violence between the parties, if any, and any other relevant factors.

     (3)   No victim shall be denied relief or arrested or charged under this act with an offense because the victim used reasonable force in self defense against domestic violence by an attacker.

     d.    (1)  In addition to a law enforcement officer's authority to seize any weapon that is contraband, evidence or an instrumentality of crime, a law enforcement officer who has probable cause to believe that an act of domestic violence has been committed shall:

     (a)   question persons present to determine whether there are weapons on the premises; and

     (b)   upon observing or learning that a weapon is present on the premises, seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury.  If a law enforcement officer seizes any firearm pursuant to this paragraph, the officer shall also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.

     (2)   A law enforcement officer shall deliver all weapons, firearms purchaser identification cards and permits to purchase a handgun seized pursuant to this section to the county prosecutor and shall append an inventory of all seized items to the domestic violence report.

     (3)   Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", P.L.1991, c.261 (C.2C:25-17 et seq.) shall be returned to the owner except upon order of the Superior Court.  The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.

     A hearing shall be held and a record made thereof within 45 days of the notice provided above.  No formal pleading and no filing fee shall be required as a preliminary to such hearing.  The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.

     If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.           After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in [N.J.S.2C:58-3c.] subsection c. of N.J.S.2C:58-3 and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists.    At least 10 days prior to returning the seized weapons, the prosecutor shall notify each claimant or victim that the weapons will be returned to the owner. 

     Nothing in this act shall impair the right of the State to retain evidence pending a criminal prosecution.  Nor shall any provision of this act be construed to limit the authority of the State or a law enforcement officer to seize, retain or forfeit property pursuant to chapter 64 of Title 2C of the New Jersey Statutes.

     If, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:

     (a)   With respect to weapons other than firearms, order the prosecutor to dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days; or

     (b)   Order the revocation of the owner's firearms purchaser identification card or any permit, license or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 60 days; or

     (c)   Order such other relief as it may deem appropriate.  When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S.2C:64-6.

     (4)   A civil suit may be brought to enjoin a wrongful failure to return a seized firearm where the prosecutor refuses to return the weapon after receiving a written request to do so and notice of the owner's intent to bring a civil action pursuant to this section.  Failure of the prosecutor to comply with the provisions of this act shall entitle the prevailing party in the civil suit to reasonable costs, including attorney's fees, provided that the court finds that the prosecutor failed to act in good faith in retaining the seized weapon.

     (5)   No law enforcement officer or agency shall be held liable in any civil action brought by any person for failing to learn of, locate or seize a weapon pursuant to this act, or for returning a seized weapon to its owner.

(cf:  P.L.2003, c.277, s.1) 

 

     2.    Section 7 of P.L.2018, c.35 (C.2C:58-26) is amended to read as follows:

     7.    a.  When a temporary or final extreme risk protective order is issued pursuant to section 4 or 5 of P.L.2018, c.35 (C.2C:58-23 or C.2C:58-24), the court shall order the respondent to surrender to the local law enforcement agency all firearms and ammunition in the respondent's custody or control, or which the respondent owns or possesses, and any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun held by the respondent.  The court also shall notify the respondent that the respondent is prohibited from purchasing firearms or ammunition or applying for a firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun. 

     b.    If the petition for the temporary extreme risk protective order indicates that the respondent owns or possesses any firearms or ammunition, the court shall issue a search warrant with the temporary or final extreme risk protective order and the law enforcement officer who serves the order shall request that all firearms and ammunition immediately be surrendered.

     (1)   The respondent immediately shall surrender, in a safe manner, all firearms and ammunition in the respondent's custody or control, or which the respondent owns or possesses, and any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun held by the respondent to the control of the law enforcement officer. 

     (2)   The respondent may request that the law enforcement agency sell all firearms and ammunition in a safe manner to a federally licensed firearms dealer pursuant to section 8 of P.L.2018, c.35 (C.2C:58-27). 

     (3)   The law enforcement officer or licensed firearms dealer taking possession of any firearms or ammunition pursuant to this subsection shall issue a receipt identifying all firearms and ammunition that have been surrendered by the respondent.  The officer or dealer shall provide a copy of the receipt to the respondent at the time of surrender. 

     (4)   If the respondent surrenders firearms and ammunition to a law enforcement officer pursuant to paragraph (1) of this subsection or surrenders or sells firearms and ammunition to a licensed dealer pursuant to paragraph (2) of this subsection, the respondent shall, within 48 hours after being served with the order, file the receipt with the county prosecutor.  Failure to timely file the receipt or copy of the receipt shall constitute contempt of the order.

     c.     The court which issued the protective order may issue a search warrant for a firearm or ammunition that is in the custody or control of, owned, or possessed by a respondent who is subject to a temporary or final protective order issued pursuant to section 4 or 5 of P.L.2018, c.35 (C.2C:58-23 or C.2C:58-24) if the respondent has lawfully been served with that order and has failed to surrender the firearm or ammunition as required by this section.

     d.    The respondent may petition the agency for the return of any surrendered firearms or ammunition upon termination of an order pursuant to section 6 of P.L.2018, c.35 (C.2C:58-25). Within 30 days of receiving a petition for the return of surrendered firearms or ammunition and after the termination of the order, the agency shall return the firearm or ammunition unless:

     (1)   the firearm has been reported as stolen; or

     (2)   the respondent is prohibited from possessing a firearm under State or federal law.

     At least 10 days prior to returning the firearms or ammunition, the local law enforcement agency shall notify the family or household member that the firearms or ammunition will be returned to the owner.  Nothing in this act shall prohibit revocation and seizure of a person's firearms purchaser identification card, permit to purchase a handgun, permit to carry a handgun, and weapons as authorized pursuant to applicable law.    

     e.     If a person other than the respondent claims title to any firearm or ammunition surrendered pursuant to this section, and the law enforcement agency determines that the person is the lawful owner of the firearm or ammunition, the firearm or ammunition shall be returned to that person.

     f.     If the respondent has surrendered a firearm or ammunition to a federally licensed firearms dealer, after termination of the order, the respondent may request the law enforcement agency, in writing, to authorize the return of the firearm or ammunition from the dealer.  The dealer shall transfer the firearm or ammunition to the respondent in accordance with procedures required when a firearm or ammunition is being sold from the dealer's inventory in accordance with N.J.S.2C:58-2. 

(cf:  P.L.2018, c.35, s.7) 

 

     3.    This act shall take effect on the first day of the seventh month following the date of enactment. 

 

 

STATEMENT

 

     This bill requires notification to be provided to victims when seized or surrendered weapons are returned to a person charged with domestic violence.  The bill also requires notification to be provided to family or household members who petitioned for an extreme risk protection order when a seized firearm is returned to the person after the order is terminated.             

     Under the "Prevention of Domestic Violence Act of 1991", P.L.1991, c.261 (C.2C:25-17 et seq.), a law enforcement officer may take possession of any weapons owned by a person charged with domestic violence.  The weapons are transferred to the county prosecutor's office, which is required to determine within 45 days whether to file for forfeiture of the weapons.  The weapons are returned if the forfeiture action is not filed within 45 days.  A court hearing a domestic violence case also is required to order the return of the weapons when: 1) the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; 2) the defendant is found not guilty of the charges; or 3) the court determines that the domestic violence situation no longer exists.  This bill requires the prosecutor to notify each claimant or victim that the seized or surrendered weapons are to be returned to the defendant.

     The "Extreme Risk Protective Order Act of 2018", P.L.2018, c.35 (C.2C:58-20 et seq.), allows a family or household member to petition the Superior Court for an extreme risk protective order (ERPO) against persons who pose a significant danger of bodily injury to themselves or others by possessing or purchasing a firearm. The ERPO prohibits the subject from possessing or purchasing a firearm or ammunition and from holding a firearms purchaser identification card, permit to purchase a handgun, and permit to carry a handgun.  A person who is subject to the order is required to surrender his or her firearms or ammunition to a law enforcement agency but may petition the agency for the return of any surrendered firearms or ammunition upon termination of the order.  This bill requires the law enforcement agency to notify the family or household members who petitioned for the ERPO that the firearms or ammunition are to be returned.

     The bill requires the notification to be provided at least 10 days prior to returning the weapons or ammunition to persons who were charged with domestic violence or subject to an ERPO.

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