New Jersey's leadership is unabashedly tough on firearms and other weapons. State leaders often cite safety as the impetus for preventing or revoking weapon ownership. In April 2021, Governor Phil Murphy approved a “red flag” law that expanded the state's powers to seize firearms under the guise of protective orders.
New Jersey's restrictive view on firearm possession extends to the way it handles restraining orders. Authorities will generally take your weapons when you are hit with a temporary restraining order (TRO) in New Jersey. At first, this measure is temporary. However, issuing a final restraining order (FRO) may deprive you of your weapons for good.
Even if a judge dismisses your temporary restraining order (TRO), there is no guarantee that you will receive your weapons. The state could petition for permanent revocation of your right to own certain weapons. A legal process may be necessary to recover any weapons seized by New Jersey law enforcement.
Attorney Joseph Lento has an uncompromising respect for clients' rights. You deserve due process, and sometimes it takes a skilled lawyer to properly protect your rights. Whether you seek dismissal of a TRO, revocation of a FRO, or return of your weapons, the Lento Law Firm can help.
What Is a Temporary Restraining Order (TRO)?
A temporary restraining order, or TRO, is a court-ordered measure intended to protect an alleged victim of domestic violence.
Temporary restraining orders impose different limits on each defendant. Generally, though, a TRO may:
- Forbid you from direct contact with a plaintiff, with “contact” being defined by a geographical distance
- Forbid you from texting, calling, emailing, socially messaging, or contacting the plaintiff in any other manner
- Forbid you from visiting specific locations, including but not limited to property shared with the plaintiff
- Forbid you from possessing any weapons
- Impose other restrictions upon you
A judge in the county where alleged domestic violence occurred may issue the TRO against you. They can issue this temporary order without your presence.
A TRO is temporary, as its name indicates. However, a TRO has immediate consequences, which may include the seizure of your weapons.
Will Authorities Automatically Seize My Weapons Because of a Temporary Restraining Order (TRO)?
You may generally face seizure of your weapons if you are the defendant named in a temporary restraining order (TRO). N.J.S.A 2C:25-28 explains that if the plaintiff receives “relief in the nature of a temporary restraining order,” then the judge has broad powers concerning your firearms (and other weapons).
Upon granting the TRO, the court may forbid you from “possessing any firearm or other weapon.” The court may err on the side of protecting the plaintiff. Through this protective lens, a judge may make the removal of your weapons a priority.
If the plaintiff files a temporary extreme risk protection order against you (N.J.S.A. 2C:58-23), then you will almost certainly have all weapons relinquished from your custody. Extreme risk protection orders indicate that “the respondent poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.”
Even without an extreme protection order, there is a strong chance that you will lose your weapons as the subject of a restraining order.
What Does the State of New Jersey Consider a Weapon?
N.J.S.A 2C:39-1(r) defines a “weapon” as “anything readily capable of lethal use or of inflicting serious bodily injury.” Weapons include:
- All firearms, even those unloaded, without a clip, or are not immediately operable
- “Components which can be readily assembled into a weapon”
- “Gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood”
- Stun guns
- Any item that releases tear gas or “any other substance intended to produce temporary physical discomfort or permanent injury”
These definitions are expansive. If you face a restraining order, authorities may dispossess you of any item that could possibly be used as a weapon.
What Grounds Does the Court Need To Seize Your Weapons?
The State of New Jersey Domestic Violence Procedures Manual (NJDVPM) details how the courts, and law enforcement agencies, justify seizing weapons. These procedures are specific to cases of alleged domestic violence.
Section 5.10.4 of the NJDVPM highlights the “test” for the removal of firearms. You may lose your firearms if a New Jersey court has reasonable cause to believe that:
- You have committed an act of domestic violence
- You possess or have access to firearms
- Your access to or possession of weapons increases the risk of danger or injury to the purported victim
If a judge approves a Weapons Seizure Affidavit, their decision indicates the completion of this test. The test for removing your firearms may be even more straightforward—if the court files any form of protective order, then it may have grounds to take your weapons.
How Does the Court Separate Defendants From Their Weapons?
Section 3(j) of N.J.S.A. 2C:25-28 explains that law enforcement may remove your weapons from your property whether or not you are present:
“...a law enforcement officer shall accompany the defendant, or may proceed without the defendant if necessary, to the scene of the domestic violence or any other location where the judge has reasonable cause to believe any firearm or other weapon belonging to the defendant is located, to ensure that the defendant does not gain access to any firearm or other weapon, and that the firearm or other weapon is appropriately surrendered in accordance with the order.”
Law enforcement agents will generally remove your weapons on their own if you are prohibited from being on the property where your weapons reside. Officers may rely on the plaintiff's knowledge to locate your weapons or conduct a search and seizure. Circumstances allowing, you may turn your weapons over directly to law enforcement.
How Does the Court Verify That You Have Turned Over All Firearms in Your Possession?
N.J.S.A.2C:25-28j explains that when a court issues a TRO against you, the court may also issue a search warrant. Law enforcement officers may conduct a thorough search and remove any weapons they find on your property or in your possession.
Authorities may also review records of firearm possession, demanding that you turn over any weapons that they did not locate during a search.
Do You Have a Choice of Whether To Turn Over Your Firearms?
If you fail to turn over any weapon voluntarily, and law enforcement fails to locate such weapons on their own, then you may be vulnerable to serious criminal penalties.
Depending on your specific circumstances, you could be subject to penalties under:
- N.J.S.A 2C:39-4(a) Possession of a Weapon for Unlawful Purposes
- N.J.S.A 2C:39-5(b), Unlawful Possession of a Handgun
- N.J.S. 2C:35-5(c), Unlawful Possession of a Rifle or Shotgun.
You may also be subject to N.J.S.A. 2C:43-6(c), also known as the “Graves Act.” New Jersey has expanded the reach of this act, which may apply to your case based on:
- The type of weapon you are found in possession of
- Whether you are accused of another criminal act simultaneous to possession of a firearm
- Your general legal circumstances
The Graves Act imposes a minimum three-year prison sentence. Other weapons-related charges may produce similarly serious consequences, from significant fines to loss of your freedom.
In addition to any weapons-specific charges, you may face a criminal contempt charge for violating the terms of your TRO. Potential penalties for criminal contempt include jail time and hefty fines.
How Can You Contest a TRO?
Once a New Jersey judge issues a TRO against you, there are two main possibilities for your case. The plaintiff in your case may:
1) Choose not to pursue a final restraining order (FRO) against you, at which point the court may rescind the TRO
2) Choose to pursue a final restraining order (FRO)
We will explain what happens to your weapons in the case of a rescinded TRO in a bit. For now, let's focus on what happens if the plaintiff pursues a final restraining order.
What Can You Expect From an FRO Hearing?
New Jersey Courts explain that you will receive a date for an FRO hearing when you receive notice of a temporary restraining order. The courts generally consider these matters time-sensitive, and your FRO hearing will generally be no more than ten days from your receipt of a TRO notice.
Should you fail to appear at your FRO hearing, the Family Division of the Superior Court of New Jersey may grant the plaintiff an FRO without contest. It is in your interest to attend an FRO hearing and do so with an attorney alongside you.
The general process for an FRO hearing is as follows:
1. The plaintiff in your case will make their case for an FRO
As part of this case, they may explain why they requested a TRO. Witness accounts, evidence of injury or harassment, and other supporting documentation may be central to their case. The plaintiff will generally have an attorney representing them.
2. Your attorney may cross-examine eligible witnesses
Your attorney may question witnesses, experts, and the alleged victim. Your lawyer may point out factual errors, question the credibility of certain parties, clarify any unclear points, and generally cast doubt upon the allegations against you.
3. Your attorney may present your case for the judge to deny the FRO
During this portion of the FRO hearing, you may testify on your behalf. Your attorney may also call witnesses, present favorable evidence, and make oral arguments.
4. The plaintiff's attorney may cross-examine you and other witnesses
The plaintiff's attorney has the same right to cross-examination as your lawyer does.
5. The plaintiff's attorney may rebut features of your case
After your attorney presents evidence and witness testimony, the plaintiff's attorney may have one more opportunity to respond. This response is known as a rebuttal.
6. The judge will make a ruling
Judges are an important variable in any FRO hearing. They have immense power to influence proceedings. The presiding judge can decide which evidence is permissible, determine whether a rebuttal is necessary, and make other impactful rulings.
Most importantly, the judge will make the final ruling about whether to instate a final restraining order against you.
How Does a Judge Determine Whether To Uphold or Dismiss an FRO Request?
The judge overseeing your FRO hearing will use the “preponderance of evidence” standard to make a ruling.
If the judge believes that it is most likely you committed an act of domestic violence or pose a threat to the victim, they may uphold the FRO request. If there is insufficient evidence that you have a history of domestic violence, have committed a specific act, or pose a threat to the plaintiff, then the judge may not issue a final restraining order.
Do You Get Your Weapons Back if the Judge Does Not Impose an FRO?
Whether the plaintiff chooses not to pursue an FRO or the judge issues a ruling in your favor, you may not have to deal with a final restraining order. With your TRO lifted and no FRO in place, surely you will receive your weapons back in a timely manner, right?
Not necessarily. Though you could receive your weapons back without pushback, there is a chance that you will not.
Per Section 3.17.2(B) of the New Jersey Domestic Violence Procedures Manual, the prosecutor in your county can take action to deprive you of your weapons on a long-term basis, even if there is no FRO against you. The prosecutor has 45 days from the seizure of your weapons to take such action.
Once the prosecutor takes formal steps to revoke your firearms on a long-term basis, the status of your TRO is no longer relevant. Section 5.12.1 of the NJDVPM states that “The [weapons forfeiture] hearing must be held even if the plaintiff withdraws or seeks dismissal of the domestic violence Complaint/TRO or FRO.”
What Should You Expect From a Weapons Forfeiture Hearing?
Without an FRO issued against you, there are a few possible outcomes to your weapons forfeiture hearing. Those outcomes include:
- Forfeiture of any weapons that you currently own
- Revocation of any active, weapons-related permits and licenses
- Revocation of your right to own weapons, and firearms in particular
- Return of your weapons and maintenance of your rights
This hearing is “summary in nature,” meaning that a judge makes the final ruling rather than a jury. During this hearing, your attorney will generally have the opportunity to:
- Cite the fact that the FRO request against you was dropped or denied
- Clarify any misunderstandings about past criminal convictions or allegations
- Present witnesses who may speak to your fitness to possess your weapons (and rights)
- Present any evidence that is relevant to the hearing
- Make a comprehensive argument as to why you should retain your weapons and rights
As in FRO hearings, a judge may have broad discretion over a weapon forfeiture hearing. With few guarantees of how the hearing will unfold, an experienced attorney could be of immense help to you.
Revocation of your firearms and your rights may be extremely difficult to reverse. This is particularly true in New Jersey, where laws on gun ownership are only becoming more restrictive. It is vitally important that you put up a strong defense during your forfeiture hearing.
Under What Basis Can a Judge Revoke Your Right To Own Certain Weapons?
N.J.S.A. 2C:58-3 lists several features that can disqualify you from weapon ownership in New Jersey. A judge may cite one or more of these features as grounds to revoke your weapons and ownership rights.
The basis for revoking your rights may include:
- A past domestic violence conviction (even if it is unrelated to the recent TRO order against you)
- An offense that you committed as a juvenile
- An alleged drug dependence
- Alleged “habitual” drunkenness
- A stay in a mental health facility, hospital, or sanitarium due to a “mental disorder”
- “A physical defect or disease which would make it unsafe for [you] to handle firearms”
- The allegation that your possession of a weapon would not be “in the interest of public health, safety, or welfare”
- Your presence on certain watchlists
Yet again, we find that these are broad criteria for confiscating your weapons. Issues like mental fitness, drug dependence, and drunkenness leave much room for interpretation. The “interest of public health, safety, or welfare” is perhaps the broadest of all grounds for revoking your rights.
You may need to defend yourself from multiple allegations of unfitness. This is yet another reason to retain attorney Joseph D. Lento, who has familiarity with weapons forfeiture proceedings in New Jersey.
Lento and his team will defend you against an allegation of unfitness to own weapons. If necessary, he will carry out all available appeals.
Do You Get Your Weapons Back if the Judge Imposes an FRO Against You?
If a judge issues a final restraining order against you, then your odds of receiving your weapons are slim. Section 3.17.5 of the NJDVPM generally forbids firearm possession by the defendant named in an FRO:
“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.”
So long as the court deems you a danger to another person—the implication made by an FRO—then you may be forbidden from possessing weapons. However, your lawyer may be able to:
- Appeal the FRO
- Remove the FRO (after a certain period has passed)
- Modify the terms of an FRO
- An appeal is a time-sensitive matter. You generally have 45 days from the issuance of an FRO to file an appeal. Grounds for appeal may include:
- Misinterpretation of facts by the presiding judge
- Misapplication of the law by the presiding judge
- Inappropriate rulings regarding the entry or suppression of evidence
- Incomplete findings by the judge (in other words, lack of justification for imposing your FRO)
As an American, you have the right to due process. However, New Jersey's restrictive stance on weapons ownership is a significant challenge. Attorney Joseph Lento will fight tirelessly to restore and preserve the rights that you are entitled to.
What Are Additional Consequences of an Unfavorable Ruling Against You?
Whether a judge maintains an order against you or revokes your right to own a firearm, you may:
- Be at near-constant risk of violating an order
- Face potential criminal sanctions indefinitely
- Be unable to defend yourself and your loved ones (due to loss of your weapons)
- Face professional consequences because of criminal proceedings against you
- Suffer emotionally, psychologically, and physically
These are significant consequences, do not take them lightly.
Should You Hire an Attorney for a TRO or FRO Issue in New Jersey?
Without question, you should hire an attorney for any of the following:
- An allegation of domestic violence made against you
- A temporary restraining order was issued against you
- An impending FRO hearing
- An issue related to weapons confiscation
- Your appeal of a TRO, FRO, or weapons confiscation
Those accused of domestic violence may face each of these issues. Do not hire just any attorney, hire Joseph D. Lento and his team at the Lento Law Firm.
Attorney Joseph D. Lento will quickly become familiar with the facts of your case. He will devise a strategy for your defense, prepare you, and accompany you to all legal proceedings. You could be facing permanent revocation of your rights, and you need an experienced, skilled legal defender.
Call the Lento Law Firm today at 888-535-3686 to discuss your case. Do not wait to call, as you may face extremely sensitive, case-altering deadlines.
