ASSEMBLY, No. 3370

STATE OF NEW JERSEY

216th LEGISLATURE

INTRODUCED JUNE 9, 2014

 


 

Sponsored by:

Assemblyman  JOHN F. MCKEON

District 27 (Essex and Morris)

Assemblywoman  MILA M. JASEY

District 27 (Essex and Morris)

 

 

 

 

SYNOPSIS

     Authorizes gun violence restraining orders and firearm seizure warrants.

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act authorizing gun violence restraining orders and firearm seizure warrants and supplementing Title 2C of the New Jersey Statutes.    

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    For the purposes of this act:

     “Firearm seizure warrant” shall mean a court order regarding a person who is subject to a gun violence restraining order and who is known to own or possess one or more firearms, that directs a law enforcement officer to seize any firearms in the possession of the person and to bring the unloaded firearm before the judge.

     “Gun violence restraining order” shall mean a court order prohibiting a person from purchasing, owning, possessing, or controlling a firearm for a period of up to one year.

 

     2.    Any person may submit an application to the court setting forth the facts and circumstances necessitating the issuance of a gun violence restraining order.  The Administrative Office of the Courts shall prescribe the manner and form of the application.

     a.  A gun violence restraining order shall be issued to prohibit a person from possessing a firearm if an affidavit, signed by the applicant under oath, and any additional information provided to the court demonstrates, to the satisfaction of the court, that the person poses a significant risk of personal injury to himself or others by possessing a firearm.

     b.    In determining whether a gun violence restraining order should be issued, the judge may examine, under oath, the person seeking the order and any witnesses the person produces.

     (1)   In determining whether grounds for a gun violence restraining order exist, the judge shall consider all of the following:

     (a)   a recent threat or act of violence by the person

directed toward others;

     (b)   a recent threat or act of violence by the person

directed toward himself;

     (c)   a recent violation of a restraining order; and

     (d)   a conviction for a weapons offense under the provisions of chapter 39 of Title 2C of the New Jersey Statutes. 

     (2)   In determining whether grounds for a gun violence restraining order exist, the judge may consider any of the following: 

     (a)   the reckless use, display, or brandishing of a firearm by the person;

     (b)   the history of use, attempted use, or threatened use of physical force by the person against other persons;

     (c)   any prior arrest of the person for a crime or offense;

     (d)   any history of a violation by the person of a restraining order;

     (e)   evidence of recent or ongoing abuse of controlled substances or alcohol by the person; or

     (f)   evidence of recent acquisition of firearms or other deadly weapons.

     (3)   The affidavit shall set forth the facts establishing the grounds of the application, or probable cause for believing that they exist.  In lieu of the required written affidavit, the judge may take an oral statement under oath.

     c.    If the judge is satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, the judge shall issue a gun violence restraining order.

     d.    A gun violence restraining order shall include:

     (1)   a statement of the grounds asserted for the order;

     (2)   the date and time the order expires;

     (3)   the address of the Superior Court for the county in which the restrained party resides; and

     (4)   a statement to the restrained person stating:  the time and date that the order expires; that the person may not own, possess, purchase, or receive, or attempt to purchase or receive a firearm while this order is in effect; that the person is entitled to submit one written request for a hearing at any time during the effective period of the order for an order permitting the person to own, possess, purchase, or receive a firearm; that the person may seek the advice of an attorney as to any matter connected with the order; and that the attorney should be consulted promptly so that the attorney may assist the person in any matter connected with the order.

     e.    When serving a gun violence restraining order, the law enforcement officer shall inform the person that the person may submit one written request for a hearing, pursuant to section 5 of this act, at any time during the effective period of the order and provide the person with a form to request the hearing.

 

     3.    If there is probable cause to believe that a person who has been issued a gun violence restraining order possesses or owns a firearm, the judge shall issue a firearm seizure warrant to the appropriate law enforcement officer directing the officer to seize any specified firearm and to retain the firearm subject to the order of the court.

     a.    A firearm seizure warrant shall be issued upon probable cause, supported by an affidavit, naming or describing with reasonable specificity the facts and circumstances justifying the court order and listing any firearm to be seized pursuant to the court order.

     b.    A firearm described in the firearm seizure warrant may be taken from any place, or from any person in whose possession the firearm may be.

     c.    When a law enforcement officer takes property under a firearm seizure warrant, the officer shall give a receipt for the property taken, specifying it in detail, to the person from whom it was taken. In the absence of a person, the officer shall leave the receipt in the place where the property was found.

     d.    All firearms seized pursuant to a firearm seizure warrant by a law enforcement officer shall be delivered to the county prosecutor.

     e.    If the location to be searched during the execution of a firearm seizure warrant is jointly occupied by multiple parties and a firearm located during the execution of the seizure warrant is owned by a person other than the person in the firearm seizure warrant, the firearm shall not be seized if the firearm is stored in a manner that the person named in the firearm seizure warrant does not have access to or control of the firearm and there is no evidence of unlawful possession of the firearm by the owner.

     f.     If the location to be searched during the execution of a firearm seizure warrant is jointly occupied by multiple parties and a gun safe that is owned by a person other than the person named in the firearm seizure warrant is located therein, the contents of the gun safe shall not be searched except in the owner’s presence, or with the owner’s consent, or unless a valid search warrant has been obtained.

 

     4.    Except as provided in subsection f. of this section, no later than 14 days after the execution of a gun violence restraining order and a firearm seizure warrant, if applicable, the court that issued the order and seizure warrant shall hold a hearing to determine whether the person who is the subject of the order may possess, own, purchase, or receive a firearm and, when applicable, whether a seized firearm should be returned to the person named in the warrant.

     a.    At the hearing, the State shall have the burden of proving, by clear and convincing evidence, that the person poses a significant risk of personal injury to himself or others by owning or possessing the firearm.

     b.    If, at the hearing, the person is found to pose a significant risk of personal injury to himself or others by purchasing, owning, possessing, or controlling a firearm, the firearm seized pursuant to the warrant shall be retained by the law enforcement agency for a period not to exceed one year or until ownership of the firearm is transferred to a licensed firearms dealer.  The person shall be prohibited from purchasing, owning, possessing, or controlling a firearm for a period not to exceed one year.

     c.    If the person violates subsection b. of this section, the person commits a crime of the fourth degree.

     d.    The court shall notify the Department of Law and Public Safety of the gun violence restraining order no later than two business days after issuing the order. The court also shall notify the department of any order restoring the person’s ability to own or possess firearms no later than two business days after issuing the order to restore the person’s right to own or possess any type of firearm that may be lawfully owned and possessed.  Any notice or report submitted pursuant to this subsection shall be in an electronic format, in a manner prescribed by the department.

     e.    If the court finds that the State has not met the required standard of proof, the firearm seized pursuant to the warrant shall be returned to the person.

     f.     If the person is prohibited by law from purchasing, owning, possessing, or controlling a firearm for a period of one year or more by any other provision of State or federal law, a hearing pursuant to this section shall not be required and the court shall issue an order to hold the firearm until either the person is no longer prohibited from owning a firearm or the person sells or transfers ownership of the firearm to a licensed firearms dealer.

     g.    If any other person claims title to a firearm seized pursuant to the warrant, the firearm shall be returned to the lawful owner.

 

     5.    A person who is the subject of a court order pursuant to subsection b. of section 4 of this act may submit one written request at any time during the effective period of the order for a hearing for an order permitting the person to possess, own, purchase, or receive a firearm.

     The request shall be submitted in a form and manner as prescribed by the Administrative Office of the Courts.

 

     6.  a.  If a law enforcement agency has probable cause to believe that a person subject to a gun violence restraining order continues to pose a significant risk of personal injury to himself or others by purchasing, owning, possessing, or controlling a firearm, the agency may initiate a request for a renewal of the order, setting forth the facts and circumstances necessitating the request.

     The request shall be submitted in a form and manner as prescribed by the Administrative Office of the Courts.

     (1)   A hearing held pursuant to this section shall be held in Superior Court to determine if a request for renewal of the order shall be issued.

     (2)   The person named in the restraining order shall be given written notice and an opportunity to be heard.

     b.    A judge may, upon his own motion, or upon request of another person, issue a renewal of a gun violence restraining order when there is probable cause to believe that a person subject to the order continues to pose a significant risk of personal injury to himself or others by purchasing, owning, possessing, or controlling a firearm, after written notice to the person named in the restraining order and after the person has been given an opportunity for a hearing.

     7.  This act shall take effect on the first day of the seventh month after enactment.

 

 

STATEMENT

 

     This bill authorizes courts in this State to issue gun violence restraining orders to persons who pose a significant risk of personal injury to themselves or others by possessing or owning a firearm.  The bill also authorizes courts to issue a firearm seizure warrant authorizing a law enforcement officer to seize a firearm from a person who has been issued a gun violence restraining order.

     Specifically, the bill authorizes any person, including family members or friends, to submit an application to the court setting forth the facts and circumstances necessitating the issuance of a gun violence restraining order. Under the bill, the court is to issue the restraining order if it finds, based upon the applicant’s sworn and signed affidavit and other information received, that the person poses a significant risk of personal injury to himself or others by possessing a firearm.  The bill defines a gun violence restraining order as a court order prohibiting a person from owning, purchasing, possessing, or receiving any firearms for a period of up to one year.

     Under the bill, the court also is authorized to issue a firearm seizure warrant if there is probable cause to believe that a person who has been issued a gun violence restraining order possesses or owns a firearm.  The warrant is to be issued to the appropriate law enforcement officer directing that officer to seize any specified firearm and to retain the firearm subject to the order of the court.  The bill defines a “firearm seizure warrant” as a court order regarding a person who is subject to a gun violence restraining order and who is known to own or possess one or more firearms, that directs a law enforcement officer to seize any firearms in the person’s possession and to bring the unloaded firearm to the county prosecutor.

     The bill requires the court to hold a hearing within 14 days of the execution of a gun violence restraining order and firearm seizure warrant, if applicable, to determine whether the person who is the subject of the order may possess, own, purchase, or receive a firearm and whether a seized firearm should be returned to the person.

     A person who is the subject of a gun violence restraining and  firearm seizure warrant may submit one written request at any time during the effective period of the order for a hearing for a subsequent order permitting the person to possess, own, purchase, or receive a firearm.

     If a law enforcement agency has probable cause to believe that a person subject to a gun violence restraining order continues to pose a significant risk of personal injury to himself or others by possessing a firearm, the agency may initiate a request for a renewal of the order.  A judge also may, upon his own motion or upon the request of another person, issue a renewal of a gun violence restraining order under these circumstances.

     The purpose of this bill is to provide law enforcement officers in this State with the means to take away firearms from persons whose friends or family have reported as being mentally unstable.