A report from the National Coalition Against Domestic Violence explains that more than 10 million people in the U.S. are abused by an intimate partner each year. They estimate that approximately 25% of women and 11% of men will experience violence involving an intimate partner. Some common examples include physical or sexual violence, stalking, harassment, and others.
Prevalence of Weapons in Acts of Domestic Violence
In roughly 19% of domestic violence cases in New Jersey, there is a weapon used. Having a gun in a household raises the likelihood of a homicide occurring by 500%. New Jersey lawmakers implemented a law that individuals convicted of misdemeanor-level domestic violence offenses (or higher) are prohibited from owning or possessing a firearm.
Understanding Domestic Violence
The state provisions that relate to domestic violence are established according to the Prevention of Domestic Violence Act of 1991. It is defined as an incident that occurs between those who are currently or have been intimate partners. This may include those who have a child in common (or are expecting one), a spouse, or those in some dating relationship.
Domestic violence is not a specific criminal offense contained in the state statutes. The following are offenses that may be deemed as acts of domestic violence: include murder, physical or sexual assault, making terroristic threats, kidnapping, criminal restraint, false imprisonment, lewdness, criminal mischief, burglary, criminal trespass, harassment, cyber-harassment, stalking, criminal coercion, or robbery.
New Jersey's Definition of a Weapon (2C:39-1)
A weapon is defined as something that can inflict severe or fatal bodily injury. This includes a firearm regardless of whether it is actually loaded at the time or is fully assembled. Others examples of weapons include gravity or switchblade knives, metal knuckles, stun guns, tear gas, bands that are studded with blades or filings, daggers, dirks, stilettos, billies, blackjacks, bludgeons, sand clubs, slingshots, and more.
The Arrest of Alleged Attacked and Weapon Seizure (2C: 25-21)
When an officer of law enforcement responds to an incident of potential domestic violence there is a specific protocol that applies. If someone claims to be a victim of domestic violence, the officer may proceed to arrest the suspect when probable cause exists. The factors considered in making this determination are as follows:
- A victim has injuries that appear to have been the result of domestic violence
- The suspect has an active warrant for their arrest
- There is a reason to believe that the suspect has violated an existing court order (contempt of court)
- Probable cause exists that a weapon was used in an act of domestic violence
An officer of law enforcement may question individuals at the scene regarding whether weapons exist. The officer may seize any weapons that they deem to be a safety risk. Seized weapons are taken to the local prosecutor's office, added to the inventory, and the details are then added to applicable domestic violence reports.
The prosecutor in possession of a seized weapon may petition a judge to revoke an offender's firearm permit or license. This applies when there are grounds to believe that returning the weapons to the owner is a threat to public safety. Those who have had their weapon(s) seized and forfeited in this manner may appeal the decision to the Appellate Division of the Superior Court.
When a weapon is forfeited for the interests of public safety, the owner may arrange to have ownership transferred (or sold) to another person. If this process is not completed in 60 days, the prosecutor may have the weapon disposed of. The law does allow the owner of a seized firearm to pursue civil actions if the prosecutor fails to return the weapon according to a written request from the court.
Weapon Provisions Involving Defendant Release Before Trial (2C:25-26)
In preparation for a defendant's release from custody during ongoing legal proceedings, the court may issue an order that prohibits a defendant from possessing a weapon. When reasonable cause exists, the court may order that a search for weapons be conducted and potentially seized. The court will provide the defendant with a summary explaining the justification for a search and seizure order.
Weapon Provisions Involving Law Enforcement of Military Members
Courts implement restraining orders for the safety of the victim. In most cases, these orders will contain provisions that prohibit the defendant from “purchasing, owning, possessing or controlling a firearm.” This requirement remains in effect for either two years or during the duration of the restraining order, whichever is greater.
An exception is made for officers of law enforcement, members of the U.S. Armed Forces, or the National Guard. This exception applies exclusively during any time that the individual is actually on duty or is “traveling to or from an authorized place of duty.”
Violations of Weapons Provisions
An officer of law enforcement may arrest a defendant and take them into custody when they have probable cause to believe that a restraining order was violated. A violation, such as having possession of a weapon, is considered to be a criminal charge of contempt of court. The judge who implemented the original order will be notified of the violation.
Those who are found to have committed contempt may be charged with a fourth-degree criminal offense. The maximum penalties that may be imposed include up to 18 months of incarceration and fines of up to $10,000. Any person that has a second conviction for violating the provisions of a restraining order related to domestic violence are subject to a minimum penalty of 30 days of imprisonment. This sentence is imposed in addition to any other penalties of imprisonment that may be ordered by the court.
The Importance of Consulting With Seasoned Legal Counsel
Parties that are facing allegations of domestic violence are encouraged to promptly seek the assistance of an experienced lawyer. The New Jersey courts take these matters very seriously and may impose court orders and pursue criminal charges with significant penalties.
Experienced Defense Attorney for Allegations of Domestic Violence
Attorney Joseph D. Lento has many years of experience representing clients in the New Jersey court system. He will ensure sure your rights are protected and aggressively represent your interests. Contact the office today at (888) 535-3686 for a case evaluation.