By: John P. Paone, Jr., Esq. and Cassie Murphy, Esq.*

In New Jersey, any person who is a victim of domestic violence may apply for a Temporary Restraining Order against the aggressor. In the event a Temporary Restraining Order is granted, a Court hearing, or trial, is then scheduled to occur within a short period of time to determine if the Temporary Restraining Order should be made final, or permanent. That hearing is called a Final Restraining Order hearing.

Notwithstanding the fact that a proceeding under the Prevention of Domestic Violence Act is a civil and non-criminal proceeding, once a Temporary Restraining Order is awarded, it is commonplace for the police to seize the weapons of the domestic violence aggressor. Most often, this action involves the seizure of guns, including handguns, shotguns, hunting rifles, and even pellet guns. Whether these weapons will be returned to the owner is an issue decided separate from the Final Restraining Order hearing. Even if a Temporary Restraining Order is dismissed, the weapons may not be immediately returned to their owner.

Instead, the State of New Jersey (through the county Prosecutor) may seek to retain the weapons, and/or to revoke the owner’s licenses to own or use weapons. Generally, the basis for an objection to the weapons being returned to the owner is that the owner is unfit to own the weapons, or poses a threat to the public, other individuals, or himself. More specifically, the Prosecutor may allege that an individual is unfit to own the weapons due to a criminal background, drug dependency, or mental disorder, or because he poses a threat to the public health, safety, and welfare. These allegations are balanced against the fundamental right of an individual to bear arms, as set forth in the Second Amendment of the United States Constitution.

If the Prosecutor intends to oppose the return of the weapons to the owner, he must notify the owner within 45 days of their seizure. In that event, a Court hearing will take place to determine whether the weapons will be returned to the owner. If your weapons have been seized in connection with a domestic violence matter, or if you are a domestic violence victim who opposes the return of seized weapons to a domestic violence aggressor, you should explore with your attorney the various options you may have in connection with a weapons forfeiture proceeding.

*John P. Paone, Jr., Esq. and Cassie Murphy, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski, Brown & Murray, with offices in Red Bank and Woodbridge.