Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

M.S. v. Millburn Police Dep't

December 23, 2008

M.S., PLAINTIFF-APPELLANT,
v.
MILLBURN POLICE DEPARTMENT, DEFENDANT, AND OFFICE OF THE ESSEX COUNTY PROSECUTOR, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 395 N.J. Super. 638 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The essential issue in this case is whether N.J.S.A. 2C: 58-3 (c) (8), a disability provision of the Gun Control Law enacted in January 2004, by its terms, permanently bars plaintiff from being issued a handgun purchase permit or firearms card.

This case has its origins in a domestic dispute that occurred in 1997 between plaintiff M.S. and his then estranged wife, S.R.. M.S. was issued a domestic violence complaint and a restraining order, together with two court summonses charging him with "threats and assault." Pursuant to a warrant, the Millburn Township police seized his firearms card, five handguns, and firearms paraphernalia. On January 15, 1997, at a domestic violence hearing, with the consent of M.S. and S.R., the family court entered mutual restraining orders. The final restraining order made no reference to firearms.

On February 27, 1997, the Prosecutor's Office filed a petition to forfeit the five handguns pursuant to N.J.S.A. 2C: 25-21 (d) (3) of the Prevention of Domestic Violence Act of 1991 (Domestic Violence Forfeiture Statute). M.S. subsequently entered into a consent judgment with the Prosecutor's Office in which he agreed to sell the firearms, or, otherwise, surrender title to the weapons. M.S. sold the weapons. The consent judgment did not provide for the forfeiture of his firearms card, which remained in the possession of the Millburn Police Department. No hearing was ever held to determine whether M.S. committed an act that disqualified him from obtaining a firearm. Nor did the consent judgment contain any admission by M.S. that he had committed any act that disqualified him from possessing a firearm.

On March 3, 1997, the criminal complaints filed against M.S. were dismissed in the Millburn Municipal Court. On November 29, 2000, at the request of S.R., the family court dismissed all restraints pertaining to the final restraining order entered against M.S. three years earlier.

In 2005, the Millburn Township Police Department refused to return M.S.'s firearms card on the basis that his previously seized weapons were not "returned" and therefore he was permanently barred from possessing a firearm under N.J.S.A. 2C: 58-3 (c) (8), a disability provision of the Gun Control Law enacted in January 2004. According to the Prosecutor's Office and the Township, M.S. was disqualified from owning or possessing a firearm under the newly enacted disability provision.

In September 2005, M.S. filed a complaint in lieu of prerogative writs in the Essex County Law Division, Civil Part, seeking the return of the firearms card. M.S. argued that he was entitled to the return of his firearms card because the Prosecutor's Office failed to seek the card's forfeiture within forty-five days after its seizure, as required by the Domestic Violence Forfeiture Statute. Both M.S. and the Prosecutor's Office filed motions for summary judgment. After hearing extensive arguments, the Law Division granted summary judgment in favor of M.S. and denied the Prosecutor's cross-motion. The Law Division ordered return of the card, finding that the addition of N.J.S.A. 2C: 58-3 (c) (8) to the Gun Control Law in 2004 should not apply retroactively because M.S. could know only those laws that existed when "he entered into the consent order" in 1997. In addition, the Law Division determined that the Prosecutor's Office "knowingly waived its right to seek the revocation of the [firearms card]" by failing to address the subject in the consent judgment and that the Prosecutor's Office could institute proceedings if M.S. was otherwise disqualified from possessing a firearm.

The Appellate Division reversed and directed that the firearms card be withheld from M.S.. The panel simply reasoned that because M.S.'s five firearms were seized in relation to his ex-wife's 1997 domestic violence complaint and were not returned to him, N.J.S.A. 2C: 58-3 (c) (8), applied retroactively, forbids the return of his firearms card or the issuance of a new one.

The Supreme Court granted plaintiff's petition for certification.

HELD: The Court does not conclude, as the Appellate Division did, that N.J.S.A. 2C: 58-3 (c) (8) applies whenever a firearm seized pursuant to the Prevention of Domestic Violence Act of 1991 is not returned to the owner. Rather, the statute imposes a statutory bar to obtaining a gun permit only when a firearm seized in a domestic violence matter is not returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C: 25-21 (d) (3).

1. In 1997, when the Essex County Prosecutor's Office filed its petition to forfeit plaintiff's seized handguns, the Domestic Violence Forfeiture Statute, N.J.S.A. 2C: 25-21 (d) (3), set forth the path for pursuing the forfeiture of a firearm or the revocation of a firearms card, which included "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." In 1997, the grounds for rejecting or revoking the issuance of a firearms purchaser identification card or a permit to purchase a handgun were set forth in the Gun Control Law.

N.J.S.A. 2C: 58-3 (c). Thus, at a hearing under the Domestic Violence Forfeiture Statute, if the Essex County Prosecutor's Office could show that plaintiff fell within any of the disability categories of N.J.S.A. 2C: 58-3 (c) or that he was "unfit" or that he "pose[d] a threat to the public," then a reason for forfeiture of plaintiff's weapons and the revocation of his card would be established. Otherwise, a court would be required to return the firearms, weapons, and any authorization papers, if certain other criteria are met, for example, dismissal of any criminal complaints or a determination that "the domestic violence situation no longer exists." Because a hearing was never conducted, whether the Prosecutor's Office would have succeeded on its forfeiture petition is entirely a matter of speculation. The domestic violence restraining order issued against plaintiff was dissolved in 2000 and plaintiff never admitted to any disqualification. Thus, in 2000, there does not appear to have been any legal impediment prohibiting plaintiff from obtaining a firearms permit and purchasing a weapon. (Pp. 14-18)

2. N.J.S.A. 2C: 58-3 (c) (8) provides: "No handgun purchase permit or firearms purchaser identification card shall be issued: . . . (8) to any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991,' and whose firearm has not been returned." Clearly, the legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C: 58-3 (c) (8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons were impounded. A commonsense reading of the statute requires that N.J.S.A. 2C: 58-3 (c) (8)'s bar to the issuance of a firearm's card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff's firearms "not been returned" because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was "probable cause to indict," or because the "domestic violence situation" continued after the issuance of the mutual restraining orders, then the conditions of N.J.S.A. 2C: 58-3 (c) (8) would have been met. Only when a person's firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and "has not been returned" for a reason articulated in the Domestic Violence Forfeiture Statute is that person permanently barred from obtaining a firearms card. (Pp. 18-21)

3. Under N.J.S.A. 2C: 58-3 (c) (8), the Prosecutor's Office can only continue to withhold plaintiff's firearms card if it can show that it would have succeeded had a forfeiture hearing been conducted in 1997. In other words, if the Prosecutor's Office can prove plaintiff's firearms would have been forfeited and therefore not "returned," then plaintiff cannot compel the Millburn Township Police Department to convey to him a firearms card that it is forbidden from issuing pursuant to N.J.S.A. 2C: 58-3 (c) (8). The Court therefore remands this matter to the Law Division to conduct a hearing, if requested by the Prosecutor's Office, within thirty days to determine whether the Prosecutor's Office would have succeeded at the N.J.S.A. 2C: 25-21 (d) (3) forfeiture proceeding. If the Prosecutor's Office forgoes the hearing or is unsuccessful at that hearing, plaintiff will be entitled to the return of his firearms card. Nothing in this opinion prevents the Prosecutor's Office, today, from moving to revoke plaintiff's license if there is cause to do so under any of the disability provisions of N.J.S.A. 2C: 58-3 (c). Nor is the Millburn Township Police Department obliged to issue any new firearms permit to plaintiff if he is disqualified under any provision of N.J.S.A. 2C: 58-3 (c). (Pp. 21-23)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Albin

Argued September 23, 2008

In 1997, plaintiff was issued a domestic violence complaint and a restraining order, and the police seized plaintiff's five handguns and his firearms purchaser identification card (firearms card). The Essex County Prosecutor's Office then filed a petition to forfeit those handguns pursuant to N.J.S.A. 2C:25-21(d)(3) of the Prevention of Domestic Violence Act of 1991 (Domestic Violence Forfeiture Statute). Plaintiff entered into a consent judgment with the Prosecutor's Office in which he agreed to sell the firearms or, otherwise, surrender title to the weapons. Plaintiff sold the weapons. The consent judgment did not provide for the forfeiture of his firearms card. No hearing was ever held to determine whether plaintiff committed an act that disqualified him from obtaining a firearm. Nor did plaintiff admit to any disqualifying act.

In 2005, the Millburn Township Police Department refused to return plaintiff's firearms card on the basis that his previously seized weapons were not "returned" and therefore he was permanently barred from possessing a firearm under N.J.S.A. 2C:58-3(c)(8), a newly enacted disability provision of the Gun Control Law. Plaintiff filed an action in lieu of prerogative writs for the return of the firearms card. The Law Division granted summary judgment in plaintiff's favor and ordered the return of the card, finding that the 2004 law did not apply to the 1997 consent judgment and that the Prosecutor's Office could institute proceedings if plaintiff was otherwise disqualified from possessing a firearm. The Appellate Division overturned that decision and directed that the firearms card be withheld from plaintiff. It concluded that the new law applied because, under the plain language of N.J.S.A. 2C:58-3(c)(8), plaintiff's previously seized firearms were not "returned" to him.

We now reverse the Appellate Division. By entering into the consent judgment, plaintiff did not admit to a statutory basis for forfeiting his right to possess a firearms card or a firearm under the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3). Nor was there a judicial finding that plaintiff forfeited his right to a firearms card or to possess a firearm under that statute. Therefore, plaintiff is entitled to a hearing to determine whether, at the time he entered into the consent judgment, the Prosecutor's Office was capable of proving that he had committed an act that warranted the forfeiture of his firearms. If the Prosecutor's Office can meet that burden, then it will have shown that the weapons were not "returned" for a reason grounded in N.J.S.A. 2C:25-21(d)(3) and that plaintiff is not entitled to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.