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If the police take your guns, you’ll have to fight to get them back

While forfeiture cases are nothing new in New Jersey, it seems to me that they are increasing in number.  I first really noticed it when I had a client who filed a restraining order against his wife.  At the hearing date, she announced that she wanted to file one against him.  Since this was clear retaliation, we easily won.  His temporary restraining order was converted into final restraining order and her TRO was dismissed. 

So, now that we won, it was time to get his guns back.  The prosecutor informed me that she would still be moving to forfeit them.  My response was, wait, he’s the victim and  you still want his guns?  Another client just hired me with a similar situation.  He gave his guns to the police for safe keeping while the TRO situation was sorted out.  They didn’t  even want them.  Nevertheless, the State is now moving to forfeit all of his firearms even though the TRO was dismissed.

Another problem is what happens when firearms are seized due to a TRO but  they belong to a third party that is not involved in the TRO hearing?  In the past, it was rather easy to get them back.  However, I think we will see the State looking for any reason to take them.

Here’s the worst part.  The State doesn’t have to meet any standard of proof before they make a motion for forfeiture.  Thus, you are not only put on the defense but you are in a position where you have to prove that you should get your own guns back.  Crazy huh?  Something needs to be done about this.  Maybe a few law suits against the State for filing frivolous actions will stop this.

Appeals that probably could have been avoided

Two clients called me up today to appeal their denial of their purchase permits.  They are good examples of permits that should have been approved.  The first client says that his application has been pending for 3 years!  The longest that I have heard of is around 18 months.  At some point during this ordeal, he got into an argument with his wife and she told the police to deny his application.  Months later, she changed her mind.  Apparently, the police thought she was coerced into making this statement and denied him anyway.  What a bunch of garbage huh?

The next guy had a criminal charge from many years ago that was dismised.  He applied for a permit and was denied.  When he appealed, the  judge asked him why he needed a gun and the guy didn’t have a good answer, so the judge denied it.  Of course, the burden is not on you to prove why you want to exercise your rights.  He applied again and was denied again. 

Both men now have to either give up or spend much more money on appeal than it would have cost if they would have hired an attorney to begin with.  Thus, I view this as such a waste of time and money.

Victim of domestic violence has a right to keep firearms

If you are reading this blog, you are probably a big fan of the 2nd amendment already.  However, if you could care less or if you think that an attorney isn’t necessary when applying for a permit or dealing with other legal issues, then consider this scenario. 

Husband, a volunteer firefighter and civil war reenactor is the victim of years of domestic violence from his wife.  He finally decides to file for divorce.  When she is served, she flips out and tries to kill herself.  After she spends a few weeks in the hospital, she assaults her husband during an argument.  He files for a temporary restraining order (TRO) and she is forced to leave the residence.

At the return date for the TRO, the wife decides she wants to file for a TRO as well so everyone has to come back on another date.  Problem is, now Husband gets his guns taken away until the TRO issue is resolved.  At the hearing for both TROs, the husband wins and defeats the wife’s TRO.  Thus, in New Jersey, the TRO is converted into a final restraining order.  

Great.  Case over right?  Husband can go pick up his guns now because he is obviously the victim right?  WRONG!  The prosecutor still decides that Husband should not have his firearms back.  The reason?  Because there is a restraining order in place.  You know, the one where the Husband is the victim!

I have lived this scenario for about the last 10 months and today, we finally ended it.  At first, the prosecutor tried to argue that a victim of domestic violence could not own guns if they are protected by a restraining order.  Of course, that is ridiculous.  But, this is New Jersey so you have to actually fight this as a court will not look at this and throw this out of court.  I showed the court and the prosecutor that the prosecutor’s theory is crazy and that my client should get his firearms back.  The prosecutor suggests we wait until after the divorce is over to see if everything calms down.  Fine.

Many months later, the divorce is now over.  However, the now ex-wife still doesn’t want my client to have his firearms back.  In fact, right as the divorce case was ending, she files another TRO which is also denied.  However, there were some more firearms that were left in her house that were also taken when this new TRO was first signed.  Thus, my client, at that point, had lost even more firearms.

This week, we finally had the hearing.  The prosecutor moved under the theory that returning the weapons to my client would be against the safety and welfare of the general public.  Keep in mind that, unlike almost every other case an attorney handles, there is no discovery and no deposition.  The State puts on their witness and you don’t really know what they will say or what evidence they will introduce.  To say you need to be a damn good attorney to process everything, develop cross examination on the fly, and then come up with a good summation is an understatement.  To complicate this matter even further, the law on this issue is rather vague.

The ex-wife got on the stand and lied about my client.  However, she can make up a good sob story.  I was genuinely worried that the judge would buy her garbage and side with the prosecutor.  One thing I forgot to mention is that my client is a really good guy.  While I like all of my clients, this guy is one of the best people you will ever find.  It really came out in the stand and I asked all the right questions.  

I was a little concerned because the judge is new to family court and I don’t know how many of these cases she has handled.  She decided to research the issue and place her decision on the record several days later which, from then, is today.  So, I came back to court today and I anxiously awaited the decision.  Basically, I won hands down.  It wasn’t even close.  However, that is only because the judge actually listened to what I had to say, paid attention to the testimony and researched the law.  In New Jersey, you don’t find a judge like this every day. 

If you are every facing a situation like this, I do not suggest you handle this by yourself.  If you are an attorney and you don’t handle these issues, I don’t suggest you just wing it.  For those attorneys who handle these issues, here’s a few tips, some of which are rather basic:

1.  Like any case, your client’s demeanor is key.

2.  Know the law.  The prosecutor had nothing to say when it came to the law.   

3.  I didn’t feel the need to cross examine her to death.  It was rather easy to tear down her credibility due to the two dismissed TRO’s, my client’s FRO, and the fact that she said that an entire police department conspired against her because my client is a volunteer fireman.  Oh yeah, the fact that she tried to kill herself didn’t help her either. 

4.  I stressed many positive aspects about my client.  He has never been pulled over for DWI and has never been arrested.  He works hard, volunteers his time has a fireman, etc.  Basically, he’s a great guy as I’ve said before.

5.  I refuted every allegation she made.  This is important and is often over looked by some attorneys.  If she brings it up, you have to knock it down.

6.  Explain why your client has guns.  Again, another big point often over looked.  No one likes a “gun nut”.  Yeah, I know, I’m using their terms, not mine.  You have to fight against that perception if your client has more than just one or two guns.  My client explained that some guns were used for shooting while others were used for the civil war reenacting.  Thus, the judge felt that he had a legitimate need for his weapons.  Keep in mind that his isn’t a factor or some other requirement, but it helps the court. 

I hate to make one case seem more important than any other, but lets face it, that happens.  Because my client is just a cool guy and he was getting screwed, I just had to win this case.  I felt that I needed to send the message that this is wrong and they should know that they cannot do this to anyone else.  It feels good that even in New Jersey, preparation, skill and a judge that is willing to apply the law will win the day in the end so that the rights of everyone else will be protected.