3.16 CRIMINAL OFFENSES AGAINST THE ELDERLY AND DISABLED NJ

3.16 CRIMINAL OFFENSES AGAINST THE ELDERLY AND DISABLED NJ

3.16.1 Whereanelderlyordisabledpersonissubjectedtoacriminaloffenselistedasanact of domestic violence, police shall follow the appropriate procedure listed above.

3.16.2 Wheretheactionsoromissionsagainstanelderlyordisabledpersondonotmeetthe domestic violence conditions, police may file appropriate criminal charges against the offender.

3.16.3 A person may be charged with Endangering the Welfare of the Elderly or Disabled, N.J.S.A. 2C:24-8, if the person has a legal duty to care for or has assumed continuing responsibility for the care of a person who is:

A. B. C.

60 years of age or older, or

Emotionally, psychologically or physically disabled, and

The person unreasonably neglects or fails to permit to be done any act necessary for the physical or mental health of the elderly or disabled person.

3.17 GUIDELINES ON PROSECUTORIAL PROCEDURE REGARDING WEAPONS

III - 15THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

SEIZED IN DOMESTIC VIOLENCE CASES

Introduction These general guidelines outline the procedure a County Prosecutor should establish regarding the disposition of weapons seized in domestic violence cases.

3.17.1 Seizure of Weapons Used in Commission of a Criminal Offense. Any weapon used in the commission of a criminal offense or is contraband or evidence of criminal activity shall be seized by police and processed in accordance with established procedures for the handling of such evidence.

3.17.2 Seizure of Weapons for Safekeeping Purposes. Any weapon seized by police in a domestic violence incident pursuant to N.J.S.A. 2C:25-21d cannot be returned to the owner by the police.

A. The police must promptly deliver to the County Prosecutor’s Office:

1. The weapon involved in a domestic violence incident; along with any seized firearms identification card or permit to purchase a handgun;

2. The domestic violence offense report which includes an inventory of all weapons seized, and

3. Where applicable, a copy of the TRO or FRO, the criminal complaint, the Victim Notification Form and the police incident report.

4. Where seizure of weapons is pursuant to a TRO or FRO, the weapon inventory should also be forwarded to the Family Division Domestic Violence Unit.

B. When a weapon was seized at the scene pursuant to N.J.S.A. 2C:25-21d, 1. The County Prosecutor shall determine within 45 days of the seizure: a. Whether the weapon should be returned to the owner of the

weapon, or

b. Whether to institute legal action against the owner of the weapon.

2. If the County Prosecutor determines not to institute action to seize the weapon and does not institute an action within 45 days of seizure, the seized weapon shall be returned to the owner. N.J.S.A. 2C:25-21d(3).

3. If the County Prosecutor determines to institute action to seize the weapon, the Prosecutor shall, with notice to the owner of the weapon,

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a. File a petition with the Family Division of the Superior Court, Chancery Division, to obtain title to the weapon, or

b. Seek revocation of any firearms identification card, permit to purchase a handgun, or any other permit, license and other authorization for the use, possession, or ownership of such weapons. (See N.J.S.A. 2C:58-3f, 2C:58-4f and/or 2C:58-5 governing such use, possession, or ownership), or

c. Object to the return of the weapon on such grounds:

(1) As are provided for the initial rejection or later revocation of the authorizations pursuant to N.J.S.A. 2C:58-3c; or

(2) That the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular; or

(3) Seek a court order that defendant must dispose of the weapons by sale or transfer to a person legally entitled to take possession of the weapons.

C. Any weapon seized by police:

1. Pursuant to a temporary or final domestic violence restraining order, or

2. Pursuant to a Domestic Violence Warrant for the Search & Seizure of Weapons, or

3. As a condition of bail for a criminal offense involving domestic violence,

should be returned to the owner by the appropriate court specifically authorizing the return of the weapon if the order or criminal complaint is in effect. If the order or complaint is withdrawn or dismissed prior to a hearing, the provisions in Paragraph, 3.17.2B2 supra, should be followed.

3.17.3 Seizure of Weapons Outside the County Where the Domestic Violence Restraining Order Was Issued. When the service of a domestic violence restraining order results in the seizure of weapons,

A. The weapons inventory should be attached to the return of service that is III - 17

THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

brought or transmitted by facsimile back to the issuing county.

B. The weapons themselves, along with any firearms identification card, purchasers permit, licenses, identification cards, or other paperwork or documentation shall be secured by the County Prosecutor in the seizing county for storage. At such time that the seized property is needed by the County Prosecutor or Family Division in the issuing county, the Prosecutor in the seizing county shall make arrangements for the delivery of same.

3.17.4 Seizure of Weapons from Law Enforcement Officers Involved in a Domestic Violence Incident. See Attorney General Directives 2000-3 and 2000-4 (Appendix 17).

When a law enforcement officer, who is authorized to carry weapons pursuant to N.J.S.A. 2C:39-6, is involved in an act of domestic violence, the seizure of weapons shall be governed by the Attorney Generals Directives 2000-3 and 2000- 4. (See Appendix 17)1

A. If a law enforcement officer is required by departmental regulations to personally purchase his or her official duty firearm, that firearm shall be considered the same as if it had been departmentally issued for purposes of applying the provisions of the Attorney General Directives 2000-3 and 2000- 4 and the provisions of the federal gun control law, 18 U.S.C.A. 922(g).

B. When a personal firearm is seized from a member of a state law enforcement officer, which includes members of the State Police, the State Department of Corrections, the Division of Criminal Justice, Rutgers University Campus Police, state college and university police, N.J. Transit Police, Division of Parole, Juvenile Justice Commission, Human Services Police, any officer of Fish, Game and Wildlife authorized to carry a firearm, State Commission of Investigation, and Division of Taxation;

1. The county Prosecutor’s Office must inform the Division of Criminal Justice whether it will or will not institute forfeiture proceedings pursuant to N.J.S.A. 2C:25-21d for the seizure of the member’s approved off-duty firearms and other personally owned firearms,

1

The Directives are similar in content: Directive 2000-3 Revision to August 14, 1995, Directive Implementing Procedures for the Seizure of Weapons from Municipal and County Law Enforcement Officers is applicable to municipal and county law enforcement and requires the county prosecutor to investigate whether a police officer, having his firearms seized pursuant to the Prevention of Domestic Violence Act of 1990, should and under what conditions, would have his firearms, agency owned and personal, returned to him. Directive 2000-4, Revision to August 14, 1995, Directive Implementing Procedures for the Seizure of Weapons from All State Law Enforcement Officers Involved in Domestic Violence Incidents places the responsibility of determining the conditions upon which a state law enforcement officer would have his right to carry a firearm restored with the Division of Criminal Justice.

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THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

2. The Division of Criminal Justice will determine whether that officer shall be authorized to carry that firearm or any firearm either on duty or off duty and whether conditions should be imposed for such authorization pursuant to the Attorney General Directive 2000-4 at IVD.

3. The Division of Criminal Justice will inform the County Prosecutor’s Office of its decision whether that officer would be authorized to carry a firearm either on duty or off duty and whether conditions had been imposed for carrying a firearm.

3.17.5 Restrictions on Return of Firearms

A. If a final domestic violence restraining order is issued pursuant to the provisions of both New Jersey and federal gun control laws, N.J.S.A. 2C:39- 7b(3) & 18 U.S.C.A. 922(g), the named defendant shall not be permitted to possess, purchase, own, or control any firearm for the duration of the order or for two years, whichever is greater. N.J.S.A. 2C:25-29b

B. If a law enforcement officer is subject to a temporary or final restraining order issued pursuant to the provisions of both New Jersey and federal gun control laws, N.J.S.A. 2C:39-7b(3) & 18 U.S.C.A. 922(g)and sec 925, the County Prosecutor may permit a municipal or county police officer to be armed while actually on duty provided that the restraining order specifically permits the possession of a firearm on duty, and the firearm is issued to the officer upon reporting for a scheduled tour of duty and surrendered upon completion of the tour of duty. In the event a state law enforcement officer is subject to a final restraining order, the Attorney General, by the Division of Criminal Justice, may permit a subject officer to be armed while on duty provided said restraining order specifically permits, and the firearm is issued to the officer upon reporting for a scheduled tour of duty and surrendered upon completion of the tour of duty.

C. A law enforcement officer who has been convicted of a misdemeanor domestic violence offense anywhere in the nation is prohibited from possessing a firearm pursuant to 18 U.S.C. 922(g)(8). This federal law applies to offenses that have as an element (1) the use or attempted use of physical force, 9r (2) the threatened use of a deadly weapon. Under New Jersey law, a disqualifying offense would be:

1. Harassment, N.J.S.A. 2C:33-4b by striking, kicking, shoving 2. Simple assault, N.J.S.A. 2C:12-1a(1) by attempting to or purposely

knowingly or recklessly causing bodily injury

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3. Simple assault, N.J.S.A. 2C:12-1a(2) by negligently causing bodily injury to another with a deadly weapon

D. A law enforcement officer who has been convicted of stalking, or a crime or disorderly persons offense involving domestic violence may not purchase, own, possess or control a firearm, and may not be issued a permit to purchase a handgun or firearms identification card. N.J.S.A. 2C:39-7 & 2C:58-3.