On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket Number FO-21-118-01.
Before Judges Newman, Fall and Parrillo.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 2003
In this domestic violence weapons forfeiture matter, the State of New Jersey appeals from an order entered in the Family Part on June 19, 2003, ordering that weapons seized from defendant, Michael D. Wahl, pursuant to the applicable provisions of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, be returned to defendant. The primary issue in this appeal is whether a New Jersey court may order the return of seized firearms to a person who has been convicted of a"misdemeanor crime of domestic violence," as defined by the federal Gun Control Act of 1968, 18 U.S.C.A. §§ 921-930. In considering that issue, we must also determine whether the defendant was convicted of a misdemeanor crime of domestic violence and, if so, whether the weapons return and forfeiture provisions contained in N.J.S.A. 2C:25-21d(3) are preempted by 18 U.S.C.A. § 922(g)(9), enacted by Congress in 1996 and more commonly known as the Lautenberg Amendment to the Gun Control Act, which prohibits possession of a firearm that"has been shipped or transported in interstate or foreign commerce" by one so convicted.
In reversing, we conclude that a person convicted of the disorderly persons offense of simple assault, contrary to N.J.S.A. 2C:12-1(a)(1), has been convicted of a"misdemeanor crime of domestic violence" when the assault involved the use or attempted use of physical force against that person's current or former spouse or domestic partner, and is thereby prohibited by 18 U.S.C.A. § 922(g)(9) from owning or possessing any firearms that have, at any point, been shipped or transported in interstate or foreign commerce. Reading N.J.S.A. 2C:25-21d(3) and 18 U.S.C.A. § 922(g)(9) in pari materia, we further conclude that a person convicted of a misdemeanor crime of domestic violence is"unfit," under New Jersey law, from using, possessing, or owning any firearms that have been shipped or transported in interstate or foreign commerce. Therefore, the weapons forfeiture and return provisions contained in N.J.S.A. 2C:25-21(g)(9) and 18 U.S.C.A. § 922(g)(9) are in harmony and the doctrine of federal preemption is inapplicable to these circumstances.
The following factual and procedural history is relevant to our analysis of the issues presented. Defendant and Georgia J. Cinq-Mars*fn1 were married on December 19, 1999. No children were born of their marriage. On December 10, 2000, an incident occurred between defendant and Cinq-Mars that resulted in two actions -- -- one criminal and one civil.
On December 10, 2000, Cinq-Mars filed a complaint against defendant under the PDVA in Hackettstown Municipal Court -- --docketed later in the Family Part as FV-21-269-01 -- -- alleging that defendant had committed acts of domestic violence against her consisting of assault and criminal mischief. In her complaint, Cinq-Mars stated that she had been physically assaulted by defendant, in that he had choked and slapped her and dragged her down a flight of stairs. Cinq-Mars also alleged a history of acts of domestic violence perpetrated by defendant against her in June or July 1999, causing her to leave their residence and stay in a shelter for protection. In her domestic violence complaint, Cinq-Mars also stated that defendant possessed numerous rifles, shotguns, and bows and arrows. The municipal court judge issued a temporary restraining order (TRO) against defendant on December 10, 2000, and scheduled a final hearing in the Family Part for December 14, 2000.
Pursuant to N.J.S.A. 2C:25-21a or -22b,*fn2 based upon probable cause to believe an act of domestic violence had occurred, Sergeant Scott Wheeler of the Hackettstown Police Department signed a criminal complaint against defendant, charging him with aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), alleging that defendant had committed acts of aggravated assault against Cinq-Mars by attempting to cause bodily injury to her by choking and slapping her. Pursuant to the authority contained in N.J.S.A. 2C:25-21d(1)(b), as well as the provision in the TRO prohibiting defendant from possessing any firearms or other weapons, the police seized all weapons in defendant's possession. Numerous firearms, rounds of ammunition, and bows were seized from defendant and delivered by the police to the Warren County Prosecutor pursuant to N.J.S.A. 2C:25-21d(2). Additionally, the police seized defendant's firearms purchaser identification card.
The PDVA prescribes the procedure to be followed upon the seizure of weapons, as follows:
Weapons seized in accordance with the above shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or 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.
A hearing shall be held and a record made thereof within 15 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.
If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.
After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists.
Nothing in this act shall impair the right of the State to retain evidence pending a criminal prosecution. Nor shall any provision of this act be construed to limit the authority of the State or a law enforcement officer to seize, retain or forfeit property pursuant to chapter 64 of Title 2C of the New Jersey Statutes.
If, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:
(a) With respect to weapons other than firearms, order the prosecutor to dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days; or
(b) Order the revocation of the owner's firearms purchaser identification card or any permit, license or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 60 days; or
(c) Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S. 2C:64-6. [N.J.S.A. 2C:25-21d(3)(emphasis added).]
Thus, where the Family Part concludes"that the domestic violence situation no longer exists[,]" that the owner is not"unfit[,]" and that the owner does not pose"a threat to the public in general or a person or persons in particular[,]" the court shall order that the seized weapons be returned to the owner. See Matter of J.W.D., 149 N.J. 108, 115-16 (1997); State v. Volpini, 291 N.J. Super. 401, 412-15 (App. Div. 1996). On December 14, 2000, a final hearing in FV-21-269-01 was conducted in the Family Part, resulting in entry of a final restraining order (FRO) against defendant. Notably, defendant was prohibited from possessing any firearms or weapons.
On December 21, 2000, the Warren County Prosecutor filed a petition in the Family Part seeking an order regarding disposition of the seized weapons, ammunition, and firearms purchaser identification card. That petition was docketed as FO-21-118-01.
On January 10, 2001, the Warren County Prosecutor's Office downgraded the aggravated assault charge against defendant to simple assault, contrary to N.J.S.A. 2C:12-1(a)(1), and remanded the matter to the Hackettstown Municipal Court. Defendant entered a plea of not guilty to the downgraded charge. On March 14, 2001, after a trial in municipal court, defendant was convicted of the disorderly persons offense of simple assault.*fn3
On January 18, 2001, Cinq-Mars appeared in the Family Part and petitioned for dismissal of the domestic violence complaint filed under FV-21-269-01 and the FRO entered thereunder. The Family Part entered an order of dismissal in accordance with her request.
A hearing was held in the Family Part on March 29, 2001, pertaining to the prosecutor's weapons disposition petition in FO-21-118-01. Defendant was represented by counsel. The parties entered into an agreement placed upon the record, under which the weapons would not be returned to defendant for a period of one year, during which defendant was to undergo counseling. A formal order memorializing that agreement was entered on April 16, 2001, which specifically required that defendant obtain an evaluation from a psychiatrist or psychologist addressing the issue of whether defendant posed a danger to himself or others. An order amending the April 16, 2001 order clarified that defendant was not to possess any weapons for a period of one year and that a determination as to defendant's fitness to possess personal weapons shall be made at the end of the one-year period.
On September 5, 2002, a review hearing was conducted in the Family Part on the issue of whether defendant's weapons should be returned. The court received into evidence a report from Dr. Lawrence H. Lentchner, a psychologist, dated August 13, 2002. In his report, Dr. Lentchner stated that defendant had been a patient of his during the past one and one-half years, having seen defendant for a total of seventeen sessions both individually and with Cinq-Mars. Dr. Lentchner stated defendant did not have an anger management problem and saw no reason why defendant's firearms should not be returned to him.
During the hearing, the court took testimony from Cinq-Mars. At that time the parties had been separated for almost two years. Cinq-Mars testified that she had no objection to the firearms and weapons being returned to defendant. However, Cinq-Mars expressed concern that defendant's possession of weapons might endanger defendant's adult son because that child had attempted suicide earlier in 2002.
Upon questioning by the prosecutor, Cinq-Mars described several incidents of violent behavior by defendant toward her prior to the December 10, 2000 incident. Cinq-Mars also stated that defendant had related an incident to her that had occurred when defendant's oldest child was age fifteen and defendant was still married to his first wife. Cinq-Mars stated defendant had told her that he had given the key to his gun rack to his fifteen year-old son because defendant"was afraid of what he might do because his wife had moved in with her boyfriend." Cinq-Mars also related an altercation between her and defendant that had occurred after she had received a subpoena to appear at the September 5, 2002 hearing. Cinq-Mars testified that during an argument while she was riding with defendant in his vehicle, defendant refused to allow her to leave the car while"[h]e was running through red lights and stop signs, so that [she] couldn't jump out[.]" Cinq-Mars explained that defendant then apologized, turned the vehicle around, and took her home.
Cinq-Mars testified she did not object to the return of the weapons because the weapons had never played a part in their arguments and he had never threatened use of the weapons against her. Defendant ...