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Matter of Return of Weapons of J.W.D.

May 15, 1996


On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County.

Approved for Publication May 15, 1996.

Before Judges Shebell, Stern and Newman. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

J.W.D. appeals from the Family Part's denial of a return of his weapons and revocation of his firearms purchaser's identification card after domestic violence charges against him were dismissed. Although we reverse in the present case, we now hold that weapons need not be returned under N.J.S.A. 2C:25-21d(3) even though no criminal or domestic violence charges remain and the domestic violence situation has abated, where the court finds that the owner poses a threat to the public or any person in particular.

On June 2, 1992, after a dispute which allegedly resulted in some physical contact, S.D. signed a domestic violence complaint against her husband, J.W.D. A temporary restraining order (TRO) was issued ex parte against J.W.D. pursuant to the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 et seq. In accordance with the TRO, his guns and firearms purchaser's identification card were confiscated by the police.

A Domestic Violence hearing commenced on June 4, 1992, but was adjourned for two weeks. On June 18, 1992, the wife agreed to dismiss the complaint, to separate from her husband for 60 days and to attend counseling with him. The temporary restraints were lifted, and the husband's weapons and purchaser's identification card were subsequently returned to him in December, 1992, without objection.

On August 27, 1992, the wife filed a complaint for divorce. *fn1 During the pendency of the divorce action, on December 26, 1994, the wife signed another domestic violence complaint against her husband stemming from an alleged "shoving match" between the two during a custody exchange. A TRO was issued which required the husband's weapons and purchaser's identification card to be confiscated by the police. On December 29, 1994, the husband filed a domestic violence complaint against his wife and he also signed a complaint against her in Municipal Court. The wife then filed a complaint in Municipal Court for the same incident. The Municipal Court complaints were later mutually dismissed. After a hearing on the merits on the cross-domestic violence complaints, on January 5, 1995, the Judge dismissed the complaints and the TRO against the husband was dissolved.

On February 1, 1995, the Prosecutor's Office filed an objection to the return of weapons and firearms purchaser's identification card to the husband and sought their forfeiture pursuant to N.J.S.A. 2C:25-21d(3) and N.J.S.A. 2C:58-3f. See also N.J.S.A. 2C:58-3c(5). A hearing was held on May 25, 1995, at which only the husband and wife testified. Appellant had requested an adjournment to present the testimony of his present girlfriend, who was on strike duty in New York, and of his father, in his mid 70's, who lived in Pennsylvania. His request was denied. The Judge revoked the firearms purchaser's identification card and ordered that the weapons be forfeited to the State. His order, issued on June 13, 1995, was stayed pending this appeal.

The couple was married on April 12, 1980. The husband, now approximately 47 years old, has a Ph.D. in Chemical Engineering and is employed in that field. He is also a Commander in the Naval Reserves and had previously served in the Navy for four years, as an officer, during the Vietnam War. One child was born of the marriage in 1990.

Ever since the wife had known her husband, he always had guns and used them recreationally. His collection, lawfully obtained, consists of 5 firearms; a Browning .22 caliber semiautomatic pistol; a Colt .22 caliber semi-automatic pistol; a Star .38 caliber semi-automatic pistol; a Remington Bolt Action rifle and a Remington pump-action shotgun.

During the pendency of the divorce action, on December 26, 1994, the wife signed the second domestic violence complaint against her husband. In her affidavit supporting the complaint, she alleged that their child was visiting her husband's home and that when she arrived on the porch to pick up her son, she noticed her son was not wearing the jacket he had worn when his father picked him up. She told the father she wanted the jacket, but he responded by attempting to close the front door. The wife placed her foot on the door's threshold preventing him from doing so. He then attempted to push her off the porch, and she grabbed onto him. Apparently, due to her grabbing him, his wrist was scratched. The husband admitting pushing his wife, but asserted it was only enough so he could close the door.

The wife in objecting to the weapons being returned to her husband testified as to an incident which occurred on September 15, 1992. On that date, after she moved out of the marital home, she returned to pick up some of her belongings. Her husband was not home, but she saw "Post-It" notes stuck on the windows which said in his handwriting "Danger, enter at your own risk." She looked in the kitchen window and saw something under a towel, shaped like a handgun with cord coming from it and attached to the front door, which gave her the impression that if the door were opened, the cord would pull. She then looked in a garage window and saw something with a blanket thrown over it, which looked like a rifle, and which was also connected by a cord to the garage door. She left the premises and called her attorney. She asserted that upon her return, the notes were removed from the windows. Despite the apparent possibility that her husband was present, she entered the house through the patio window. In the kitchen she found that it was only a hand drill under the towel, and in the garage, all that was underneath the blanket was a broomstick.

The wife further testified that while they lived together, she had seen her husband practice drawing and aiming his guns around the house. She said he had pointed the weapon at her in jest but she did not know whether it was loaded at the time. She noted that this practice stopped in 1991. In the prior custody hearing, she did not indicate he had ever pointed a weapon at her. The wife stated that her husband would become verbally abusive toward her, but except for when he pushed her off the porch, he did not physically abuse her. She stated that on occasion he got angry and punched the wall next to her. The Judge, over objection, allowed the wife to testify that her son had told her:

that he had seen daddy's guns, that daddy let him hold some of them, that they used the guns to shoot the animals that are getting into the garden and eating the food, and that he also is afraid that daddy's going to hurt somebody with the guns.

The husband testified that he did not have a criminal record; was never convicted of a crime; is not presently under indictment; has never been diagnosed as drug dependent; has never been hospitalized for a mental or emotional disorder; has never experienced seizures or other convulsive ...

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