NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0072-14T2
APPROVED FOR PUBLICATION
STATE OF NEW JERSEY IN THE November 18, 2015 INTEREST OF C.L.H.'S WEAPONS APPELLATE DIVISION ____________________________
Submitted September 16, 2015 – Decided November 18, 2015
Before Judges Sabatino, Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FO-06-254-13.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant State of New Jersey (Jason H. Chessman, Assistant Prosecutor, of counsel and on the brief).
Evan F. Nappen, attorney for respondent C.L.H. (Jeffrey A. Skiendziul, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
The State appeals from a final order of the Family Part
denying its motion to have C.L.H. forfeit five illegal assault
firearms, seventy-one other firearms and his firearms purchaser
identification card seized pursuant to the Prevention of
Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.
Because we conclude the court erred in determining the 2013 gun amnesty law, L. 2013, c. 117, applied here and section 3c(8) of
the Gun Control Law, N.J.S.A. 2C:58-3c(8), did not, we reverse.
Based on the parties' stipulations and the testimony at the
forfeiture hearing, the judge found that a temporary restraining
order (TRO) had been entered against C.L.H.'s wife in April 2013
arising out of a domestic violence complaint brought by her
eighty-one-year-old father. Because the victim noted the
existence of two to five long guns and a .22 caliber revolver
located in the house and shed at his daughter's home, the TRO
included a warrant directing law enforcement to search for and
seize those weapons. Although C.L.H. had nothing whatsoever to
do with the incident or the TRO, because he lived with his wife
at the address specified in the warrant, Cumberland County
sheriff's officers were authorized to enter their marital
residence with the warrant and seize weapons belonging to C.L.H.
for safekeeping pursuant to the Prevention of Domestic Violence
Act. See N.J.S.A. 2C:25-28j; State v. Harris, 211 N.J. 566, 580
(2012).
C.L.H. cooperated with the officers executing the warrant,
advising that there were weapons in the home in locked gun
safes. The sheriff's officers removed four bows, one machete,
four handguns and seventy-two long guns from C.L.H. and his
wife's home. C.L.H. also voluntarily turned over his firearms
2 A-0072-14T2 purchaser identification card.1 The officers did not find
magazines for any of the guns.
The Cumberland County Prosecutor's Office sent eight of the
guns seized to the State Police for testing and filed a timely
petition for forfeiture in May. A detective in the ballistics
unit testified that five of those guns, all of which were
operable, qualified as assault firearms under N.J.S.A. 2C:39-
1w(1), (2) or (4), as an enumerated weapon, one substantially
1 It would not appear that the officers could have lawfully seized C.L.H.'s firearms purchaser identification card, as opposed to his weapons, under the domestic violence warrant as C.L.H. was not the defendant in the domestic violence complaint. See N.J.S.A. 2C:25-28j, which provides in pertinent part:
Emergency relief may include forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39- 1, ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief.
[(Emphasis added).]
This distinction is reflected in the phrasing of the warrant included in the standard New Jersey Domestic Violence Court Order. Domestic Violence Procedures Manual (Oct. 9, 2008), http://www.judiciary.state.nj.us/family/dvprcman.pdf. It is also consistent with another portion of the statute governing the conduct of police officers responding to a scene of domestic violence. See N.J.S.A. 2C:25-21d(1)(b).
3 A-0072-14T2 identical to an enumerated weapon or a semi-automatic rifle with
a fixed magazine capacity exceeding fifteen rounds.
The court accepted the detective's testimony as credible in
all respects, and found the five guns are assault firearms,
illegal to own or possess under New Jersey law. Although C.L.H.
testified that he did not have paperwork for any of the five
assault firearms due to a "vindictive ex-wife" who destroyed his
records "about" fifteen years ago, the detective testified that
one of the enumerated weapons,2 the A[vtomat] K[alashnikov]-47
type semi-automatic firearm, was imported in 2003. The court
noted that the import date for that weapon, eleven years prior
to the forfeiture hearing, "would be less than 15 years ago."
Based on the parties' stipulations, the judge found that
C.L.H. had no criminal history and no juvenile record. He was
not a defendant in the domestic violence proceeding, which was
later voluntarily dismissed in any event. The prosecutor did
2 The other enumerated weapons were an Uzi type semi-automatic firearm and an FN-FAL type semi-automatic firearm. The detective testified he found C.L.H.'s .223 caliber Bushmaster semi-automatic carbine substantially identical to the Bushmaster Assault Rifle under N.J.S.A. 2C:39-1w(2), because it had a flash suppressor, a bayonet lug, a pistol grip and a telescoping stock. The remaining weapon, the Winchester .22 long rifle caliber, semi-automatic carbine, the detective deemed an assault firearm under N.J.S.A. 2C:39-1w(4), because it had a fixed tubular magazine on the underside of the barrel with a capacity of fifteen plus one rounds.
4 A-0072-14T2 not file any charges arising out of the domestic violence
incident, or file charges against C.L.H. arising from his
illegal possession of the five assault firearms. The State
stipulated that it was not aware of any drug or alcohol problems
C.L.H. might have suffered or any record of involuntary
commitments.
The parties stipulated that C.L.H. had been a life-long
collector of the types of guns seized from his home. They also
stipulated that the Cumberland County Prosecutor's Office and
the Cumberland County Sheriff's Office conducted eleven separate
"Gun Buy Backs" from June 1997 through June 2010. The court
noted that "[a]ssuming that C.L.H. possessed the five . . .
illegal weapons during any of the times listed, he could have
turned in the weapons at any one of the 'buy backs,' perhaps for
money and with 'no questions asked.'"
Finally, the parties stipulated that C.L.H.'s counsel sent
a letter to the assistant prosecutor in December 2013 stating
that C.L.H. "hereby transfers to a license[d] firearms dealer
(whose name will be provided at a future date) . . . under P.L.
2013, Ch.117/A.3796, effective August 8, 2013," the five assault
firearms seized by the sheriff's officers in April 2013, citing
5 A-0072-14T2 N.J.S.A. 2C:25-21d(3)(b).3 That subsection of the statute allows
an owner whose firearms are not to be returned following the
hearing required under N.J.S.A. 2C:25-21d(3) to arrange for
their sale to a registered dealer within sixty days of the order
of forfeiture in order to avoid the weapons being disposed of by
the prosecutor.
The court found on the basis of the stipulations, C.L.H.'s
testimony and that of two friends who testified on his behalf
that there was "simply no basis to find that C.L.H. is a danger
to the community's health, safety, welfare or any other way."
Although not saying so directly, the court impliedly rejected
the prosecutor's contention that C.L.H. should be disqualified
under N.J.S.A. 2C:58-3c(5) (disqualification in the interest of
the public health, safety or welfare), based on his knowing
possession of an assault firearm in disregard of the State's gun
ownership laws.
The court also rejected the prosecutor's contention that
because C.L.H.'s weapons were seized pursuant to the Prevention
of Domestic Violence Act, and cannot be returned because they
are illegal firearms under N.J.S.A. 2C:39-1w, the Domestic
3 Counsel's letter referred to N.J.S.A. 2C:25-21d(3)(a) which refers to weapons other than firearms and is thus inapplicable. We assume he meant to refer to subsection d(3)(b) of the statute.
6 A-0072-14T2 Violence Forfeiture Statute, N.J.S.A. 2C:25-21d(3), disqualified
C.L.H. from obtaining a firearms purchaser identification card
under N.J.S.A. 2C:58-3c(8), or legally possessing the remaining
seventy-one firearms seized from his and his wife's home.
Acknowledging that "[a] strict interpretation of the law" would
lead to precisely that result, the court deemed it "not
equitable" here.
The court instead allowed C.L.H. to take advantage of the
2013 gun amnesty law based on his counsel's letter to the
assistant prosecutor sent during the 180 days of the amnesty
law's operation. The court rejected the prosecutor's argument
that the amnesty law did not apply because the assault firearms
were not in C.L.H.'s possession as of the law's August 8, 2013
effective date, having been seized from his and his wife's home
by Cumberland County sheriff's officers some four months
earlier. Reasoning that N.J.S.A. 2C:58-3c(8)'s bar must "be due
to some fault of the person whose guns were seized," see M.S. v.
Millburn Police Dep't, 197 N.J. 236, 251 (2008), the court found
"there is no 'fault' or other inappropriate, unlawful or bad
behavior of C.L.H., the guns were seized solely because of a
restraining order issued against a person he resided with, his
wife."
7 A-0072-14T2 The court noted that "C.L.H. could have surrendered those
guns but for the fact that they were held by the Cumberland
County Prosecutor's [O]ffice due to no reason other than the
fortuitous circumstance of misfortunes that occurred to C.L.H.'s
wife." The court concluded that "to hold under these
circumstances that the guns in question were not in C.L.H.'s
possession so that he could not take advantage of the August 8,
2013 [gun amnesty] law allowing for a voluntary surrender of the
same is simply not equitable." The court granted the State's
application for stay pending appeal.
The State argues on appeal that the 2013 gun amnesty law
does not apply here, and because C.L.H.'s weapons were not
returned for a reason set forth in the Domestic Violence
Forfeiture Statute, N.J.S.A. 2C:25-21d(3), the weapons and
C.L.H.'s firearms purchaser identification card cannot be
returned to him under N.J.S.A. 2C:58-3c(8). We agree.
We begin our analysis by noting we have no quarrel with the
trial judge's factual findings. The findings are supported by
substantial credible evidence in the record, and we do not
disturb them. See In re Return of Weapons to J.W.D., 149 N.J.
108, 116 (1997) ("an appellate court should accept a trial
court's findings of fact that are supported by substantial
credible evidence"). Our disagreement is with the court's legal
8 A-0072-14T2 conclusions, to which we owe no deference under our plenary
standard of review. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference.").
The 2013 gun amnesty law provides in pertinent part that:
[a]ny person who has in his possession an assault firearm on the effective date of this act may retain possession of that firearm for a period of not more than 180 days after the effective date. During that time period, the possessor of the assault firearm shall:
(1) transfer the assault firearm to any person lawfully entitled to own or possess such firearm;
(2) render the assault firearm inoperable; or
(3) voluntarily surrender the assault firearm pursuant to the provisions of N.J.S.A. 2C:39-12.
[L. 2013, c. 117, § 2a.]
We cannot find under any construction of this statute that the
assault firearms seized from C.L.H. and his wife's home in April
2013 and made the subject of a timely forfeiture petition by the
prosecutor in May, were "in his possession" as of the August 8,
2013 effective date of the law. See DiProspero v. Penn, 183
N.J. 477, 492 (2005) (explaining it is not the function of
9 A-0072-14T2 courts "to 'rewrite a plainly-written enactment of the
Legislature []or presume that the Legislature intended something
other than that expressed by way of the plain language'")
(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). On that
date, the weapons were in possession of the prosecutor for
safekeeping where they remained through expiration of the
amnesty law on February 5, 2014.
Our plain reading of the amnesty statute's meaning is
buttressed by the Legislature's requirement that any voluntary
surrender under the amnesty law comply with the provisions of
N.J.S.A. 2C:39-12. See DiProspero, supra, 183 N.J. at 492
(directing that statutory words and phrases be read "in context
with related provisions so as to give sense to the legislation
as a whole"). That separate enactment allows a person to
voluntarily surrender firearms to law enforcement without
criminal liability "provided that the required [written] notice
is received by [law enforcement] before any charges have been
made or complaints filed against such person for the unlawful
possession of the weapon . . . and before any investigation has
been commenced by any law enforcement agency concerning the
unlawful possession." N.J.S.A. 2C:39-12.
The purpose of the limitation is obvious; it is to prevent
a person from escaping liability for possession of a weapon by
10 A-0072-14T2 trying to "voluntarily surrender" it to the authorities after it
has already been seized or otherwise come to the attention of
law enforcement. Without it, N.J.S.A. 2C:39-12, and the 2013
gun amnesty law, would be transformed from devices to encourage
the surrender of firearms to a "free pass" for those the police
have already found or suspect to be in illegal possession, a
result plainly not intended by the Legislature. As C.L.H.'s
counsel's notice to the prosecutor was well after the filing of
the complaint for forfeiture, C.L.H. was not entitled to
"voluntarily surrender" his assault firearms under the express
terms of the gun amnesty law and N.J.S.A. 2C:39-12, even were he
somehow deemed to be still in possession of the weapons after
they had been confiscated from his and his wife's home.
Having concluded that the 2013 amnesty law cannot be
applied to the circumstances here, we must consider whether the
trial court could have properly returned the assault weapons to
C.L.H., notwithstanding. We think the clear answer to that
question is no.
The trial court found that five of the weapons seized from
C.L.H. and his wife's home under the Prevention of Domestic
Violence Act were assault firearms as defined by N.J.S.A. 2C:39-
1w(1), (2) or (4). C.L.H. has not challenged that finding on
appeal, and because it is supported by substantial credible
11 A-0072-14T2 evidence in the record, we do not disturb it. See J.W.D.,
supra, 149 N.J. at 116. Those weapons are contraband and can
never lawfully be returned to C.L.H. N.J.S.A. 2C:39-1w; :39-5f;
:64-1a(1). Because the five assault firearms were seized
pursuant to the Prevention of Domestic Violence Act and cannot
be returned to C.L.H. under the Domestic Violence Forfeiture
Statute, N.J.S.A. 2C:25-21d(3), he is expressly disqualified
from obtaining a handgun purchase permit or firearms purchaser
identification card under the Gun Control Law, N.J.S.A. 2C:58-
3c(8), and thus from regaining possession of his seventy-one
other firearms and his firearms purchaser identification card
held by the prosecutor.
To the extent the trial judge determined forfeiture to be
"not equitable," because C.L.H. was not a defendant in the
domestic violence complaint, we think he erred. The law is well
settled that the Family Part has the authority to order a weapon
forfeiture following the dismissal of a domestic violence
complaint regardless of whether the dismissal was voluntary or
for lack of evidence. See J.W.D., supra, 149 N.J. at 116; State
v. Cordoma, 372 N.J. Super. 524, 533-34 (App. Div. 2004); State
v. One Marlin Rifle, 319 N.J. Super. 359, 371 (App. Div. 1999);
State v. Freysinger, 311 N.J. Super. 509, 514-15 (App. Div.
1998); State v. Volpini, 291 N.J. Super. 401, 412-13 (App. Div.
12 A-0072-14T2 1996). As the Domestic Violence Forfeiture Statute applies to
defendants against whom no domestic violence was ever proved, we
see no logical reason to limit its scope to only those accused.
In addition to allowing the issuance of a warrant for the
search and seizure of "any firearm" and the seizure of any
firearms purchaser identification card or purchase permit
"issued to the defendant," N.J.S.A. 2C:25-28j, the Act provides
that "a law enforcement officer who has probable cause to
believe that an act of domestic violence has been committed
shall:"
(b) upon observing or learning that a weapon is present on the premises, seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury. If a law enforcement officer seizes any firearm pursuant to this paragraph, the officer shall also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.
[N.J.S.A. 2C:25-21d(1)(b) (emphasis added).]
We must assume the distinction between seizing "any
firearm" without restriction as to ownership and seizing only
those firearms cards "issued to the person accused of the act of
domestic violence" was intentional.4 A domestic violence
4 The language regarding the seizure of a defendant's firearms card and permit to purchase a handgun was added in the 2003 (continued)
13 A-0072-14T2 defendant, as here, could well have access to firearms, not her
own, that would expose a victim to the risk of serious injury,
thus necessitating their temporary seizure for safekeeping.
Although it would be unreasonable to seize a domestic violence
defendant's firearms for safekeeping but not the documents to
allow her to purchase additional weapons, see In re Seized
Firearms Identification Card of Hand, 304 N.J. Super. 360, 370
(Ch. Div. 1997), the same is not true for a firearms card
belonging to one whose only threat to the victim is posed by the
ready accessibility of his weapons to the defendant.
Accordingly, it seems plain that the Legislature intended
that weapons, but not firearms cards, could be temporarily
seized under the Prevention of Domestic Violence Act from
persons who are not defendants in domestic violence complaints.
See supra, note 1. Of course, regardless of whether seized from
a defendant or some other person, all weapons and any firearms
(continued) amendment, L. 2003, c. 277. The legislative history does not offer an explanation for differentiating between the seizure of weapons reasonably believed to pose a threat to the victim, regardless of ownership, and the seizure of a firearms card belonging to defendant only. We note, however, that N.J.S.A. 2C:25-21d(3), which governs return of any weapons seized, has since enactment referred to "the owner" and not "the defendant." We take from this that the Legislature has never intended to limit the seizure of firearms under the Act to only those owned by the defendant, but anticipated that some weapons that would pose a threat to the victim by being accessible to the defendant could be owned by others not accused of domestic violence.
14 A-0072-14T2 cards seized under the Act must be returned to the owner within
forty-five days unless the prosecutor, within that period,
petitions a judge of the Family Part to obtain title to the
weapons or to revoke any permits for their possession on notice
to the owner. N.J.S.A. 2C:25-21d(3). If such a person is
determined to be disqualified from regaining possession of his
weapon under the Domestic Violence Forfeiture Statute, then that
person is permanently barred from obtaining a firearms card, see
Millburn, supra, 197 N.J. at 246, notwithstanding that he was
not a perpetrator of domestic violence or a defendant in the
underlying domestic violence action.
By focusing on C.L.H.'s lack of culpability in the
circumstances leading to the seizure of his firearms from his
and his wife's home under the Prevention of Domestic Violence
Act, a fact not critical to the outcome of the forfeiture
hearing, the court lost sight of the fact that was critical –
that C.L.H. was in possession of five fully-functioning assault
rifles. The knowing possession of an unlicensed, operable
assault firearm is a crime of the second degree. N.J.S.A.
2C:39-5f. Possession of assault firearms, except under limited
circumstances not present here, has been illegal in this State
since 1990. N.J.S.A. 2C:58-12. As the trial court noted, at
least one of the assault firearms in C.L.H.'s possession was not
15 A-0072-14T2 imported until 2003, well after the assault weapon ban went into
effect. Further, as the testimony also made clear, C.L.H. was
knowledgeable and selective about the firearms in his
collection. As there is no question on this record but that
C.L.H. was in knowing possession of five illegal assault
weapons, that those weapons could not be returned under the
Domestic Violence Forfeiture Statute was certainly "due to some
fault" of C.L.H. Millburn, supra, 197 N.J. at 251.
Because the Domestic Violence Forfeiture Statute expressly
allows the prosecutor to petition "to obtain title to the seized
weapons, or to revoke any and all permits . . . for the use,
possession, or ownership of such weapons pursuant to the law
governing such use, possession, or ownership," N.J.S.A. 2C:25-
21d(3), and the five illegal assault firearms seized from
C.L.H.'s and his wife's home are prima facie contraband in which
no property right exists and which are subject to forfeiture
under N.J.S.A. 2C:64-1a(1), the court erred in concluding that
the forfeiture of those illegal assault firearms was not
mandated on the facts it found. We agree with the holding of
State v. 6 Shot Colt .357, 365 N.J. Super. 411, 417 (Ch. Div.
2003), that the knowing possession of an assault firearm
contrary to this State's gun control laws is sufficient basis
for forfeiture under N.J.S.A. 2C:25-21d, without the need to
16 A-0072-14T2 find that C.L.H. is unfit or a danger to the public under
N.J.S.A. 2C:58-3c(5).5 Accord In re Osworth, 365 N.J. Super. 72,
81 (App. Div. 2003) ("[I]t does not serve public safety to issue
a handgun purchase permit to someone who has demonstrated his
willingness to disregard the gun laws of this State."), certif.
denied, 179 N.J. 310 (2004).
Because the five assault firearms were lawfully seized from
C.L.H. and his wife's home pursuant to the Prevention of
Domestic Violence Act and cannot be returned to C.L.H. under the
Domestic Violence Forfeiture Statute as they are contraband
under N.J.S.A. 2C:64-1a(1), C.L.H. is expressly disqualified
from obtaining a handgun purchase permit or firearms purchaser
identification card under the Gun Control Law, N.J.S.A. 2C:58-
other firearms and his firearms purchaser identification card
Accordingly, we reverse and remand for the entry of an
order revoking C.L.H.'s firearms purchaser identification card
and directing that the five assault weapons be forfeited to the
prosecutor for destruction in accord with N.J.S.A. 2C:25-
5 Although not relevant given our disposition of the appeal, we note that we have elsewhere addressed and rejected the arguments C.L.H. makes that the public health and safety exception of N.J.S.A. 2C:58-3c(5) is unconstitutionally vague, see In re Dubov, 410 N.J. Super. 190, 196-97 (App. Div. 2009).
17 A-0072-14T2 21d(3)(c) and 2C:64-6a, with the remaining weapons to be
disposed of by the prosecutor only if C.L.H. does not arrange
for their lawful sale in accordance with N.J.S.A. 2C:25-
21d(3)(b).
Reversed and remanded for the entry of an order consistent
with this opinion. We do not retain jurisdiction.
18 A-0072-14T2