Directive Implementing Procedures for the Seizure of Weapons from Municipal and County Law Enforcement Officers Involved in Domestic Violence Incident

DOMESTIC VIOLENCE

Directive Implementing Procedures for the Seizure of Weapons from Municipal and County Law Enforcement Officers Involved in Domestic Violence Incidents

TO:

FROM: DATE: SUBJECT:

Issued August 1995 Revised September 2000

DIRECTOR, DIVISION OF CRIMINAL JUSTICE ALL COUNTY PROSECUTORS ALL LAW ENFORCEMENT CHIEF EXECUTIVES

JOHN J. FARMER, JR. ATTORNEY GENERAL SEPTEMBER 1, 2000 ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 2000-3

REVISION TO AUGUST 14, 1995, DIRECTIVE IMPLEMENTING PROCEDURES FOR THE SEIZURE OF WEAPONS FROM MUNICIPAL AND COUNTY LAW ENFORCEMENT OFFICERS INVOLVED IN DOMESTIC VIOLENCE INCIDENTS

I. INTRODUCTION

When law enforcement officers are charged with committing acts of domestic violence, it is important that the matters be uniformly and expeditiously handled. To achieve these objectives, it is necessary that there be a statewide policy governing the seizure of weapons from a law enforcement officer who is charged with committing an act of domestic violence.

The Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., requires the Attorney General “to provide for the general supervision of criminal justice” in this State. All law enforcement agencies and law enforcement officers in the State are required to cooperate with the Attorney General “to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the state.” N.J.S.A. 52:17B-98. Accordingly, it is directed that all law enforcement agencies and law enforcement officers who are authorized to carry weapons pursuant to N.J.S.A. 2C:39-6 are to comply with this directive.

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II. GUIDELINES FOR THE SEIZURE OF WEAPONS FROM A LAW ENFORCEMENT OFFICER INVOLVED IN A DOMESTIC VIOLENCE INCIDENT

A. Whenever an act of domestic violence as defined in N.J.S.A. 2C:25-19 has been alleged to have been committed by a law enforcement officer all weapons, department issued and personal, possessed by that officer shall immediately be

1. Seized by the law enforcement officer responding to the domestic violence call if the responding officer reasonably believes that the presence of weapons would expose the victim to a risk of serious bodily injury, or

2. Surrendered by the officer involved when served with a domestic violence restraining order, search warrant or bail condition which requires the surrender of weapons.

B. Whenever an act of domestic violence as defined in N.J.S.A. 2C:25-19 has been alleged to have been committed by a law enforcement officer resulting in the seizure of the officer’s weapons, or the officer has been served with a domestic violence restraining order or a domestic violence warrant for the seizure of weapons or there is a bail condition which requires the surrender of weapons, the officer must:

1. Immediately report that fact to the officer’s departmental supervisor who must promptly notify the Prosecutor’s Office in the county where the officer is employed.

2. Voluntarily surrender all weapons to the law enforcement officer responding to the domestic violence call or in response to a requirement in a domestic violence restraining order or a domestic violence warrant for the seizure of weapons or in a bail condition.

C. Where weapons have been seized from an officer, a report shall immediately be made to the arresting officer’s departmental supervisor who must notify the prosecutor’s office in the county where the charge had been filed.

III. CUSTODY AND CONTROL OF SEIZED OR SURRENDERED WEAPONS

A. Any department-issued weapon, which is seized or surrendered in connection with a domestic violence incident, is to be returned to the custody and control of the department which issued that weapon.

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Seizure of Weapons from Municipal and County Law Enforcement Officers

B. All other weapons owned, possessed, or controlled by the officer, which are seized or surrendered, are to be promptly forwarded to the county Prosecutor’s Office in the county where the seizure of weapons took place in accordance with the procedures set forth in the Attorney General’s Guidelines on Police Response Procedures in Domestic Violence Cases and the County Prosecutor’s Procedures for the seizure and transportation of firearms to the Prosecutor’s Office in accordance with the provisions of N.J.S.A. 2C:25-21d.

C. Where the weapons have been seized pursuant to a court order, domestic violence search warrant, condition of bail or at the scene pursuant to N.J.S.A. 2C:25-21d, the County Prosecutor’s Office where the civil and/or criminal charge was filed or incident occurred shall conduct an immediate investigation of the incident and determine whether the officer should be permitted to carry a weapon and what conditions, if any, should be recommended to the court for the return of the weapons to the law enforcement officer pending the disposition of the domestic violence proceedings. The County Prosecutor completing the investigation shall forward the report to the County Prosecutor within whose jurisdiction the officer is employed.

D. Where the domestic violence charges, either criminal or civil, which resulted in the seizure of weapons from a law enforcement officer have been dismissed or withdrawn before a hearing, the procedures in Paragraph IVD, listed below, should be followed for the return of the weapons to the law enforcement officer.

E. The chief of the law enforcement agency where the officer is employed shall

1. Conduct an investigation into the officer’s background and shall recommend to the appropriate County Prosecutor’s Office whether the officer should be permitted to carry weapons and what conditions, if any, should be imposed for the return of the weapons, consistent with any family or criminal or municipal court bail orders entered against the officer in the jurisdiction which the incident occurred.

2. If necessary, re-assign the officer charged with committing an act of domestic violence or served with a restraining order so that the officer will not have contact with the domestic violence complainant.

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Seizure of Weapons from Municipal and County Law Enforcement Officers

F. The County Prosecutor’s Office within whose jurisdiction the incident occurred should confer with the domestic violence complainant regarding the complainant’s position on the return of weapons. However, the recommendation or determination whether the weapons should be returned rests with the County Prosecutor, not the victim or the law enforcement agency where the officer is employed.

IV. RETURN OF SEIZED WEAPONS

A. When a court had specifically directed that the officer’s weapons be seized either pursuant to a domestic violence restraining order or a domestic violence warrant for the seizure of weapons; or as a condition of bail, the officer whose weapons have been seized because of a domestic violence incident may request an expedited court hearing to determine the officer’s status regarding the possession of weapons.

B. When a court order, either criminal or civil, which prohibits a law enforcement officer from possessing weapons is in effect, no weapons are to be returned to the officer subject to the domestic violence proceedings without a court order. If the domestic violence charges or complaint are withdrawn or dismissed prior to a court hearing, the provisions in Paragraph IVD, listed below, should be followed.

C. If it is determined by the County Prosecutor that the officer may carry weapons in accordance with that officer’s duty assignments while the domestic violence proceedings, either criminal or civil, are pending court action, the County Prosecutor may recommend to the appropriate court that:

1. The officer be permitted to carry a department issued handgun during on duty hours (duty hours means an officer’s daily active duty shift) but not carry a handgun off duty, and

2. The officer be directed not to enter his or her residence which is shared with the complainant while on duty and armed, or meet with the complainant or any other person covered by the restraining order, while armed.

3. The department owned weapons are to be issued by the department to the officer at the beginning of the officer’s daily active duty shift and the weapons are to be returned to the custody of the department at the end of the officer’s daily active duty shift.

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V.

Seizure of Weapons from Municipal and County Law Enforcement Officers

D. When a weapon has been seized from a law enforcement officer involved in a domestic violence offense but no criminal charges, court order or warrant has been issued or is pending regarding possession of weapons, a County Prosecutor may authorize the return of the seized weapons subject to conditions, if any, the Prosecutor determines necessary.

RESTRICTIONS ON RETURN OF FIREARMS

Pursuant to the provisions of the federal crime bill, 18 U.S.C.A. 922(g), if a final domestic violence restraining order is issued, and for the duration of that order,

VI.

A. A law enforcement officer may be authorized by a court to possess a department issued firearm under conditions recommended by the appropriate county prosecutor, and

B. The officer may not possess any personally owned firearms.

PURPOSE AND EFFECT OF THIS DIRECTIVE

This directive is binding upon all county prosecutors and all law enforcement officers in this State. This directive and the procedures set forth herein are implemented solely for the purpose of guidance within the criminal justice community. They are not intended to, do not, and may not be invoked to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.

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DOMESTIC VIOLENCE

Directive Implementing Procedures for the Seizure of Weapons from State Law Enforcement Officers Involved in Domestic Violence Incidents

Issued August 1995 Revised September 2000

DIRECTOR, DIVISION OF CRIMINAL JUSTICE ALL COUNTY PROSECUTORS ALL LAW ENFORCEMENT CHIEF EXECUTIVES

JOHN J. FARMER, JR. ATTORNEY GENERAL SEPTEMBER 1, 2000 ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 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

TO:

FROM: DATE: SUBJECT:

I. INTRODUCTION

When law enforcement officers are charged with committing acts of domestic violence, it is important that the matters be uniformly and expeditiously handled. To achieve these objectives, it is necessary that there be a statewide policy governing the seizure of weapons from a law enforcement officer who is charged with committing an act of domestic violence.

The Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., requires the Attorney General “to provide for the general supervision of criminal justice” in this State. All law enforcement agencies and law enforcement officers in the State are required to cooperate with the Attorney General “to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the state.” N.J.S.A. 52:17B-98. Accordingly, it is directed that all state law enforcement agencies and law enforcement officers who are employed by the State Department of Corrections, the Division of Criminal Justice, the Division of State Police, Human Services Police, Juvenile Justice Commission or the State Park Ranger Service and who are authorized to carry weapons pursuant to N.J.S.A. 2C:39-6 are to comply with this directive.

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Seizure of Weapons from State Law Enforcement Officers

II. GUIDELINES FOR THE SEIZURE OF WEAPONS FROM A LAW ENFORCEMENT OFFICER INVOLVED IN A DOMESTIC VIOLENCE INCIDENT

A. Whenever an act of domestic violence as defined in N.J.S.A. 2C:25-19 has been alleged to have been committed by a state law enforcement officer all weapons, department issued and personal, possessed by that officer shall immediately be

1. Seized by the law enforcement officer responding to the domestic violence call if the responding officer reasonably believes that the presence of weapons would expose the victim to a risk of serious bodily injury, or

2. Surrendered by the officer involved when served with a domestic violence restraining order, search warrant or bail condition which requires the surrender of weapons.

B. Whenever an act of domestic violence as defined in N.J.S.A. 2C:25-19 has been alleged to have been committed by a state law enforcement officer resulting in the seizure of the officer’s weapons, or the officer has been served with a domestic violence restraining order or a domestic violence warrant for the seizure of weapons or there is a bail condition which requires the surrender of weapons, the officer must:

1. Immediately report that fact to the state officer’s departmental supervisor who must promptly notify the Prosecutor’s Office in the county where the officer is employed and also notify the Division of Criminal Justice, Prosecutors and Police Bureau;

2. Voluntarily surrender all weapons to the law enforcement officer responding to the domestic violence call or in response to a requirement in a domestic violence restraining order or a domestic violence warrant for the seizure of weapons or in a bail condition.

C. Where weapons have been seized from a state law enforcement officer, a report shall immediately be made to the arresting officer’s departmental supervisor who must notify the Division of Criminal Justice, Prosecutors and Police Bureau.

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Seizure of Weapons from State Law Enforcement Officers III. CUSTODY AND CONTROL OF SEIZED OR SURRENDERED WEAPONS

A. Any department-issued weapon, which is seized or surrendered in connection with a domestic violence incident, is to be returned to the custody and control of the department which issued that weapon.

B. All other weapons owned, possessed, or controlled by the officer, which are seized or surrendered, are to be promptly forwarded to the County Prosecutor’s Office in the county where the seizure of weapons took place in accordance with the procedures set forth in the Attorney General’s Guidelines on Police Response Procedures in Domestic Violence Cases and the County Prosecutor’s Procedures for the seizure and transportation of firearms to the Prosecutor’s Office in accordance with the provisions of N.J.S.A. 2C:25-21d.

C. Where the weapons have been seized pursuant to a court order, domestic violence search warrant, condition of bail or at the scene pursuant to N.J.S.A. 2C:25-21d, the Division of Criminal Justice, Prosecutors and Police Bureau shall conduct an immediate investigation of the incident and determine whether the officer should be permitted to carry a weapon and what conditions, if any, should be recommended to the court for the return of the weapons to the law enforcement officer pending the disposition of the domestic violence proceedings. The Division of Criminal Justice, Prosecutors and Police Bureau shall promptly forward its report and recommendations to the County Prosecutor within whose jurisdiction the officer is employed.

D. Where the domestic violence charges, either criminal or civil, which resulted in the seizure of weapons from a state law enforcement officer have been dismissed or withdrawn before a hearing, the procedures in Paragraph IVD, listed below, should be followed for the return of the weapons to the law enforcement officer.

E. The chief of the law enforcement agency where the officer is employed shall

1. Conduct an investigation into the officer’s background and shall recommend to the Division of Criminal Justice, Prosecutors and Police Bureau who shall determine whether the officer should be permitted to carry weapons and what conditions, if any, should be imposed for the return of the weapons, consistent with any family or criminal or municipal court bail orders entered against the officer in the jurisdiction which the incident occurred.

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Seizure of Weapons from State Law Enforcement Officers

2. If necessary, re-assign the officer charged with committing an act of domestic violence or served with a restraining order so that the officer will not have contact with the domestic violence complainant.

F. The Division of Criminal Justice, Prosecutors and Police Bureau or designee generally should confer with the domestic violence complainant regarding the complainant’s position on the return of weapons. However, the recommendation or determination whether the weapons should be returned rests with the Division of Criminal Justice Prosecutors and Police Bureau, not the victim or the law enforcement agency where the officer is employed.

IV. RETURN OF SEIZED WEAPONS

A. When a court had specifically directed that the officer’s weapons be seized either pursuant to a domestic violence restraining order or a domestic violence warrant for the seizure of weapons; or as a condition of bail, the officer whose weapons have been seized because of a domestic violence incident may request an expedited court hearing to determine the officer’s status regarding the possession of weapons.

B. When a court order, either criminal or civil, which prohibits a state law enforcement officer from possessing weapons is in effect, no weapons are to be returned to the officer subject to the domestic violence proceedings without a court order. If the domestic violence charges or complaint are withdrawn or dismissed prior to a court hearing, the provisions in Paragraph IVD, listed below, should be followed.

C. If it is determined by the Division of Criminal Justice, Prosecutors and Police Bureau that the state law enforcement officer may carry weapons in accordance with that officer’s duty assignments while the domestic violence proceedings, either criminal or civil, are pending court action, the Division of Criminal Justice, Prosecutors and Police Bureau may recommend to the appropriate court that:

1. The officer be permitted to carry a department issued handgun during on duty hours (duty hours means an officer’s daily active duty shift) but not carry a handgun off duty, and

2. The officer be directed not to enter his or her residence which is shared with the complainant while on duty and armed, or meet with the complainant or any other person covered by the restraining

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V.

Seizure of Weapons from State Law Enforcement Officers order, while armed.

3. The department-owned weapons are to be issued by the department to the officer at the beginning of the officer’s daily active duty shift and the weapons are to be returned to the custody of the department at the end of the officer’s daily active duty shift.

D. When a weapon has been seized from a state law enforcement officer involved in a domestic violence offense but no criminal charges, court order or warrant has been issued or is pending regarding possession of weapons, Division of Criminal Justice, Prosecutors and Police Bureau may authorize the return of the seized weapons subject to conditions, if any, the Division of Criminal Justice, Prosecutors and Police Bureau determines necessary.

RESTRICTIONS ON RETURN OF FIREARMS

Pursuant to the provisions of the federal crime bill, 18 U.S.C.A. 922(g), if a final domestic violence restraining order is issued, and for the duration of that order,

VI.

A. A law enforcement officer may be authorized by a court to possess a department issued firearm under conditions recommended by the appropriate county prosecutor, and

B. The officer may not possess any personally owned firearms.

PURPOSE AND EFFECT OF THIS DIRECTIVE

This directive is binding upon all county prosecutors and all law enforcement officers in this State. This directive and the procedures set forth herein are implemented solely for the purpose of guidance within the criminal justice community. They are not intended to, do not, and may not be invoked to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.