3.17 DV GUIDELINES ON PROSECUTORIAL PROCEDURE REGARDING WEAPONS

3.17 GUIDELINES ON PROSECUTORIAL PROCEDURE REGARDING WEAPONS

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

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

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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