Kenneth Vercammen Law Office.732-572-0500. Edison, NJ.
November 9, 2015
hearing required on return of firearms after dismissed DV State v M.D.
hearing required on return of firearms after dismissed DV State v M.D.
STATE OF NEW JERSEY,
September 10, 2015
Submitted May 27, 2015 – Decided
Before Judges Hayden and Sumners.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FO-16-165-14.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1468-14T4
The State appeals a Family Part order from aRule 4:6-2(e) motion dismissing its application for a forfeiture of certain firearms and firearms purchaser identification card (firearms permit) voluntarily surrendered to the police by defendant M.D. during a domestic dispute investigation. We affirm in part, reverse in part, and remand.
I. We glean the facts from the record below, based primarily on a police incident report which formed the basis of the trial court's decision on defendant's motion.
On July 22, 2013, shortly before midnight, the Wayne Township Police Department responded to a domestic disturbance call at the home of defendant and his wife. There was no history of domestic disputes at the premises nor criminal history for either spouse.
Upon speaking to the couple separately, the police learned that while they were engaged in a verbal argument regarding their relationship, defendant removed a pistol case from a closet and stated he was "going to do something stupid." Defendant's wife took the pistol case from him without any resistance; the pistol was unloaded and never removed from its case. The wife also told police that she was not physically attacked by her husband, and that she did not consider his comments or actions as a threat against her, but his assertion that he might harm himself. After being advised of her domestic violence rights by the police, the wife did not file a complaint or seek a restraining order against her husband.
Defendant told police that he had been drinking but did not intend to harm his wife or use the gun. He said he was "stupid," and wanted her to think he might hurt himself, without actually planning to do so, so that she would leave him alone. The police did not arrest or file a complaint against defendant, and, with the wife's consent, allowed him to remain at the home as he stated he had no place to go.
Disclaiming he was suicidal, defendant refused a police request to seek a medical evaluation. However, defendant consented to a police request that he give them his two Ruger pistols, four BB rifles, and his firearms permit card, as a safety precaution.
On September 17, 2013, seven days after being notified by the police of the seizure, the Passaic County Prosecutor's Office filed a Notice of Motion in the Family Part pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-21(d)(3), to obtain title to defendant's weapons and firearm permit. In response, defendant filed a Rule 4:6-2(e) motion to dismiss the State's application for failure to state a claim upon which relief can be granted. Defendant did not challenge the seizure of the weapons and firearm permit.
On January 30, 2014, the trial judge rendered a bench decision granting defendant's motion. The judge found that under the present facts, the most applicable provision of the PDVA to seek a weapon forfeiture under N.J.S.A. 2C:25-21(a) was subsection 4, which provides a law enforcement officer must "arrest and/or file a complaint, if the officer has probable cause to believe that a weapon has been involved in the commission of an act of domestic violence." N.J.S.A. 2C:25-21(a)(4). Since the police did not arrest or file a complaint against defendant, the judge ordered there could be no forfeiture underN.J.S.A. 2C:25-21(a)(4).
The judge also considered the application ofN.J.S.A. 2C:25-21(b) to the State's petition, finding that the provision may apply if N.J.S.A. 2C:25-21(a)(4) does not apply, where a law enforcement officer may arrest or may sign a criminal complaint against a person based upon probable cause to believe an act of domestic violence occurred. The judge found that even without an arrest or complaint being filed, the facts did not evidence a predicate act of domestic violence; the wife was not physically struck, threatened, annoyed or alarmed during the argument with defendant.
The judge further commented that the Second Amendment of the United States Constitution giving citizens the right to bear arms was also "important . . . to consider." However, it is not clear from her decision how this constitutional right applied to the reasoning to grant defendant's motion. Lastly, the trial judge mentioned that prior police reports alleging that the couple's two teenaged sons, who still reside with them, were involved in separate threats of gun violence had "no bearing" on her decision to return the weapons to defendant.
On February 7, 2014, in response to the judge's decision, one of police officers who investigated the domestic dispute filed a municipal court complaint against defendant for the petty disorderly offense of harassment, N.J.S.A. 2C:33-4(c). Defendant was alleged to alarm or seriously annoy "by removing a pistol case and threatening to 'going to do something stupid' during the course of an argument with [his] wife." Three days later, the State filed a motion for reconsideration of the judge's decision granting defendant's motion to dismiss the forfeiture application. In the meantime, on June 19, 2014, the municipal court granted the State's motion to dismiss the harassment complaint. The record does not disclose the reasons for the motion and municipal court's dismissal.
On October 29, 2014, the trial judge entered an order and issued a written decision denying the State's reconsideration motion. Applying the standards set forth in Rule 4:49-2, the judge rejected the State's argument "that the initial seizure of [d]efendant's weapons was constitutionally valid under the emergent circumstances exception to the warrant requirement [as] an attempt by the State to put forth a new argument that was not raised in the State's initial [f]orfieture [a]pplication." The judge found that the State's other two arguments concerning the application of N.J.S.A. 2C:58-3(c)(5), and N.J.S.A. 2C:25-21(d) were previously and properly addressed in her initial decision. This appeal followed.
Generally, factual findings by a family court are accorded higher deference "because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare v. Cesare, 154 N.J.394, 413 (1998)). Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). And, when the issue presented turns on a legal conclusion derived from the Family Part's fact-finding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011). Seealso,Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (we give no special deference to trial court's interpretation of "the legal consequences that flow from established facts.")
The State contends that the judge erred in not considering whether the firearms should be returned on the grounds that defendant was unfit, posed a threat to the public in general or a person or persons in particular, pursuant to N.J.S.A.2C:25-21(d)(3). Specifically, the State argues that the judge, relying upon the probable cause standard to arrest or file a complaint for domestic violence in accordance with N.J.S.A. 2C:25-21(a), erroneously concluded that probable cause did not exist because no complaint was filed against defendant. The judge should have conducted an evidentiary hearing to determine whether probable cause existed to arrest or file a complaint, rather than conclude probable cause did not exist on a Rule4:6-2(e) motion, and dismissing the forfeiture petition based upon law enforcement's inaction. The State also argues that the judge erroneously concluded that defendant's conduct was not harassment as defined by N.J.S.A. 2C:33-4(a). A finding would have established that an act of domestic violence occurred thereby warranting consideration of the defendant's fitness to possess the weapons and firearm permits.
In addition, the State asserts that a municipal court harassment complaint was filed against defendant subsequent to the judge's decision, but the judge refused to reconsider her decision solely due the fact the complaint was dismissed. This is contrary to In re Return of Weapons to J.W.D., 149 N.J. 108, 116 (1997), which held the State retains the right to bring a forfeiture action despite the dismissal of a domestic violence complaint.
The State also argues that pursuant toN.J.S.A. 2C:25-21(b), the State can seize weapons under the PVDA without the filing of a criminal complaint where a law enforcement officer believes there is probable cause that domestic violence occurred and has the discretion to make an arrest or file a complaint. Alternatively, the State contends that the court should have considered whether to return the firearms without relying upon the PVDA. The State argues that the judge erred by refusing to consider forfeiture based upon the best interest of the public health, safety or welfare, pursuant to N.J.S.A. 2C:58-3(c)(5), which does not require a probable cause finding of domestic violence.
We begin our inquiry with scrutiny of the relevant provisions of the PVDA. N.J.S.A. 2C:25-21(a) and -21(b) set forth the authority for arresting and/or signing a complaint against a person where there is probable cause to believe that domestic violence occurred.
N.J.S.A. 2C:25-21(a)(1)-(4) provides four specific conditions to justify an arrest and complaint: 1) an injured victim of domestic violence; 2) an outstanding warrant; 3) probable cause violation of contempt of a court order or protective order pursuant to N.J.S.A. 2C:29-9; or 4) probable cause to believe a weapon defined byN.J.S.A. 2C:39-1 was used to commit domestic violence. N.J.S.A. 2C:25-21(b) provides that where none of the conditions in N.J.S.A. 2C:25-21(a)(1)-(4) exist, a law enforcement officer may arrest or may sign a criminal complaint, or do both, if there is probable cause that domestic violence has been committed.
In furtherance of the PVDA's policy to protect domestic abuse victims, the seizure of weapons and firearm permits is authorized by N.J.S.A. 2C:25-21(d). SeeState v. Cassidy, 179 N.J. 150, 163-64 (2004);State v. Volpini, 291 N.J. Super. 401, 408-09 (App. Div. 1996). A law enforcement officer is authorized to seize weapons on the premises and firearm permits issued to the person accused of the act of domestic violence regardless of whether the weapons are "contraband, evidence, or an instrumentality of crime" when there is "probable cause to believe that an act of domestic violence has been committed." N.J.S.A. 2C:25-21(d)(1). After the taking of weapons and firearm permits, the county prosecutor may petition the Family Part for a summary hearing to obtain title to the weapons and revoke the permits, or object to the return of the weapons, "on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21(d)(3). There is no formal pleading or filing fee in advance of a summary hearing. Ibid. The State has the burden of proof at a summary hearing to show "by a preponderance of the evidence, that the forfeiture is legally warranted." State v. Cordoma, 372 N.J. Super. 524, 533-34 (App. Div. 2004); N.J.S.A. 2C:25-21(d)(3).
Seized weapons and firearm permits shall be returned to the owner when,
the court determines the owner is not subject to any of the disabilities set forth in N.J.S. 2C:58-3c and finds that the complaint has been dismissed at request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is not guilty of the charges; or if the court determines that the domestic violence situation no longer exists.
Thus, even though a domestic violence complaint has been dismissed and there is no probable cause to indict, weapons and firearm permits can be forfeited if the court determines the owner is unfit pursuant to N.J.S.A. 2C:58-3(c).
Applying these standards, we conclude that once the police seized the defendant's weapons and firearm permits, forfeiture was governed byN.J.S.A. 2C:25-21(d)(3). Thus, a summary hearing should have been held, requiring a N.J.S.A. 2C:58-3(c) disabilities analysis to determine if defendant's possession of weapons and a firearm permit "would not be the interest of the public health, safety, welfare" and the domestic violence situation still exists. N.J.S.A. 2C:25-21(d)(3). Defendant's motion did not challenge the seizure, but rather questioned whether the state had a legal right to retain his weapons and revoke his firearm permit. Thus, it was not proper to dismiss the State's petition on the motion based upon a finding that probable cause of a domestic violence did not exist. That standard would only have been relevant under N.J.S.A. 2C:25-21(a) and -21(b), which as noted addresses an arrest of, or complaint against, a person accused of committing domestic violence.
We do however agree with the trial judge's decision that the State's forfeiture petition is based upon the PVDA, and not a N.J.S.A. 2C:58-3(f) application. Lastly, in light of our ruling, we need not address the trial judge's reconsideration motion decision rejecting consideration of the municipal court harassment complaint filed after she initially dismissed the State's forfeiture petition.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
 The police incident report was submitted as an attachment to defense counsel's certification in support of the motion to dismiss the State's forfeiture application.
 In accordance with N.J.S.A. 2C:25-21(d)(3), a forfeiture application must be made within forty-five days that the weapons and firearms permit are seized. However, in State v. Saavedra, 276 N.J. Super. 289, 294 (App. Div. 1994), we held that the forty-five day period did not commence until the county prosecutor came into possession of the weapons, or had knowledge of the seizure. Thus, the timeliness of the application in this case is not an issue.
 On December 8, 2014, the trial judge denied the State's motion to stay the return of the weapons to defendant pending appeal. After granting the State leave to file emergent relief, we denied the State's emergent application for stay on January 16, 2015.
N.J.S.A. 2C:33-4(a) provides, in pertinent part, "a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm [.]"
 The reference to N.J.S.A. 2C:58-3(c) was added by 2003, c.277, sec 4, eff. Jan. 14, 2004. This amendment reflects the ruling in J.W.D., supra, 149N.J. at 116, which held the trial court must still consider taking weapons from a person for posing a threat to public health, safety, or welfare despite dismissal of the domestic violence complaint for lack of evidence.
N.J.S.A. 2C:58-3(f) provides that a firearm permit can be revoked upon a finding that the holder becomes subject to any of the disabilities set forth in N.J.S.A. 2C:58-3(c).
 However, we are constrained to add that dismissal of the complaint is not dispositive of the State's petition, N.J.S.A. 2C:25-21(d)(3), and that the record does not reveal the basis for the judge's decision. SeeR. 1:6-2(f).