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Jonathan F. Marshall

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Camden, NJ

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Rights of Domestic Violence Offenders to Own Firearms Limited by NJ Supreme Court

Camden County NJ Domestic Violence AttorneysThe NJ Supreme Court’s latest ruling on firearms ownership rights in the Garden State could have a massive impact on gun crime laws going forward. Moreover, the court ruling had generated a ton of media attention because it marked the first time in 26 years that the state’s highest court has issued a ruling on gun possession rights.

The court’s unanimous decision implicated the NJ domestic violence prevention law, which was found to not constitute a violation of the 2nd Amendment of the U.S. Constitution. Under the New Jersey Prevention of Domestic Violence Act of 1991, NJ police have the ability to seize weapons from alleged domestic violence offenders who have been hit with a temporary restraining order (TRO) or a final restraining order (FRO).

The court ruling is drawing praise and criticism from different segments of the gun rights debate. That’s because there is a belief among many that an alleged domestic violence offender should not be stripped of their Second Amendment rights and required to hand over their guns to the state merely on the basis of an allegation.

When writing the unanimous decision for the NJ Supreme Court, Associate Justice Lee Solomon acknowledged the debate and said that a person’s constitutional right to bear arms can, in fact, be restricted under the law because that right is “subject to reasonable limitations.” Solomon followed by expanding upon what is meant by a “reasonable limitation” and emphasizing that “the police power of the state provides our Legislature with the authority to regulate firearms.”

Camden County NJ Gun Ownership Rights and Domestic Violence Allegations

The case involved a former cop whose wife had accused him of committing domestic violence in Morristown, New Jersey. As soon as the alleged victim obtained a restraining order against the defendant, local law enforcement attempted to enforce the NJ Prevention of Domestic Violence Act and seized the defendant’s firearms. Police specifically pointed to the suspect’s “volatile marital history” as a reason for believing that he posed a potential safety risk to his wife.

Two different NJ lower courts ruled that the defendant should be allowed to keep his weapons because his ex-wife was not very credible with her domestic violence allegations. The lower courts also said that the defendant’s constitutional rights should not be trumped by a prior history of marital difficulties.

Now the New Jersey Supreme Court has rejected the rationale offered by the lower courts and said that the defendant’s history of domestic violence altercations was enough to warrant forfeiture of his potentially deadly weapons.

Weapons Offenses in Camden County, New Jersey

The State of New Jersey is known for having some of the absolute toughest handgun possession laws in the entire country. Now it appears that the NJ Supreme Court is backing up these tough weapons offense laws by declaring that law enforcement has the authority to seize firearms and other weapons in domestic violence cases.

Prior to this ruling being handed down, the court’s last ruling in a firearms case was in 1990. This was a year before NJ lawmakers passed the New Jersey Prevention of Domestic Violence Act. In the 1990 gun possession case, the court ruled that two private detectives in NJ should not be granted firearms permits. This most recent case involved a former cop in Roseland New Jersey who was forced to surrender his guns and his firearms ID card due to a prior history of domestic violence. The NJ Supreme Court ruling sets the bar in domestic violence weapons offense cases very high because ex-cops like the defendant are generally able to get concealed carry permits and other difficult-to-acquire gun ownership licenses.

“Preponderance of the Evidence” as a Standard of Proof in NJ Domestic Violence Gun Possession Cases

New Jersey judges are likely to side with prosecutors and victims in domestic violence cases and err on the side of caution when an alleged domestic violence offender owns handguns and firearms. NJ courts will typically rule that police can confiscate a domestic violence offender’s weapons in order to protect the “public health, safety, or welfare.”

The standard of proof utilized by New Jersey judges when making determinations about whether weapons should be forfeited is the civil standard of “preponderance of the evidence.” This is a standard that means “more likely than not,” so NJ prosecutors merely need to show that the threat of violence posed by an alleged domestic violence offender is more likely than not to manifest in violence against the victim. At restraining order hearings, the same standard of proof is used by NJ judges. By contrast, criminal cases require prosecutors to prove the elements of a crime “beyond a reasonable doubt,” which is a much higher standard of proof.

What Does the NJ Supreme Court’s Ruling Mean for Domestic Violence Weapons Forfeiture Cases Going Forward?

As soon as the New Jersey Supreme Court handed down its ruling on gun ownership rights for domestic violence offenders, several people spoke out in favor of the court’s decision. For instance, Nancy Erika Smith, a legal advocate for domestic violence victims and founder of Wynona’s House in Newark NJ, said, “If you can’t control yourself, if you have to be violent to your own family, of course you shouldn’t have a gun.”

Another supporter of the court’s ruling is Alexander Roubian, the president of the New Jersey Second Amendment Society. Roubian noted that domestic violence offenders who could potentially commit further violence against their victims should not have easy access to dangerous weapons like handguns. In fact, said Roubian, “anybody who’s given due process and is guilty of domestic violence should not be allowed to own any type of weapon.”

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For the past 20 years, Mr. Marshall has provided his clients with excellent legal counsel in a broad variety of criminal matters. From straightforward issues to serious litigation, he offers you the experience and confidential advice you need to maneuver through the laws of Pennsylvania and New Jersey.

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