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In re Application of M.M. for Firearm's Identification Card

April 9, 2010

IN THE MATTER OF APPLICATION OF M.M. FOR FIREARM'S IDENTIFICATION CARD


On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. A-16-08-2121.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2010

Before Judges Carchman and Parrillo.

Appellant M.M. appeals from orders of the Law Division denying his application for a firearms purchaser identification card (FPIC) and subsequent motion for reconsideration. We affirm.

These are the pertinent facts. Appellant is a former New Jersey State Police Officer. On May 10, 2000, his wife, R.M., obtained a temporary restraining order (TRO) against him pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. When served with the TRO, his three firearms were seized. Because appellant was a law enforcement officer, his service weapon was retained by the State Police pending the outcome of an internal investigation into his fitness to possess his duty weapon, while his personal firearms were released to the Warren County Prosecutor's Office, pursuant to the Act's provision, N.J.S.A. 2C:25-21(d)(2).

On May 15, 2000, the County Prosecutor filed a petition seeking forfeiture of all seized weapons and appellant's FPIC. The hearing was stayed pending the outcome of the State Police's internal investigation. During the course of this investigation, appellant's wife dismissed the TRO. She claimed to have done so because appellant "promised to leave me alone and just go away . . . ." On November 16, 2000, the Attorney General, after reviewing the results of the State Police's internal investigation, authorized the return of appellant's service weapon without restriction.

Sometime thereafter, another domestic violence incident involving appellant was reported to the State Police, who then disclosed the matter to the Attorney General. Following a series of interim decisions as to appellant's fitness to carry his service weapon, on April 30, 2002, the Attorney General's Office authorized appellant to carry his service weapon both on and off duty without restriction. Following this decision, the County Prosecutor moved in the Law Division for a weapons forfeiture hearing to determine whether appellant's personal weapons should be returned.

The forfeiture hearing was held on August 1, 2002. R.M., who by then was divorced from appellant, objected to the return of appellant's personal weapons. She testified that she remained "very scared" of her former husband. Although there had been no further violent incidents between them since May 9, 2000, appellant continued to be verbally abusive. R.M. described a recent incident where appellant came into her work place "yelling and screaming" with "his hand on his [service] weapon[.]" R.M. also recounted a lengthy history of domestic violence during their marriage, including an incident where appellant allegedly punched her in the eye; another where he "whacked" her "right across the leg"; and yet another where she was viciously beaten by him after he returned home from a carnival intoxicated, resulting in bruises across much of her body. As to the incident underlying the May 10, 2000 TRO, R.M. testified that on May 1, 2000, as she was leaving for work, appellant came running out of the house, grabbed her by the arm, and became verbally abusive, calling her "a c**t, a whore" and a "f***ing bitch." During the altercation, appellant also stated that he was "not going to take it anymore." R.M. had marks up and down the arm where the appellant had grabbed her.

Appellant testified on his own behalf, denying R.M.'s allegations of domestic violence. He did acknowledge, however, that on one occasion, he had given his ex-wife a black eye, but explained that it was "purely accidental[,]" as he mistakenly elbowed R.M. in the face after she jumped on his back. Regarding the incident underlying the TRO, appellant explained, as background, that his wife had been taking money from him, was threatening him with a "messy divorce," and was planning on making a false report of domestic abuse. As to the incident itself, appellant admitted that he had "reached for his [exwife's] elbow," but that it was not in "any forceful manner at all." According to appellant, he voluntarily turned in his personal weapons to the State Police because he was afraid of what his wife would do with them if he left them in the marital home.

At the close of evidence, the judge, crediting R.M.'s account, found that appellant posed a danger to his ex-wife, even though she had previously sought dismissal of the TRO. Citing In re Return of Weapons to J.W.D., 149 N.J. 108 (1997), the court, by order of August 19, 2002, directed that appellant's personal weapons and FPIC be forfeited.

Appellant's motion for reconsideration was denied without prejudice for failure to properly serve the State. Two years later, however, on June 2, 2004, appellant moved under Rule 4:50-1(e) to vacate the August 19, 2002 forfeiture order. Following argument, the court denied the motion by order of June 29, 2004. Appellant then moved for reconsideration, claiming changed circumstances including: 1) his divorce from R.M.; 2) his long-term relationship with a new girlfriend; 3) the absence of any recent allegations of abuse; 4) the lack of evidence of any physical threat to R.M.; 5) their "mutually tolerant" contact post-divorce concerning their children; and 6) the full use of his service weapon, without incident, since the weapons forfeiture hearing. Appellant further argued that denying him the ability to obtain and possess personal weapons would cause extreme and unanticipated hardships as well as impact his employment and constitutional rights. The State opposed the application, arguing that relief was not warranted under Rule 4:50-1, and citing N.J.S.A. 2C:39-7 and N.J.S.A. 2C:58-3, which prohibit persons whose weapons have been seized and not returned under the Act from obtaining firearms licenses and possessing personal firearms, but still permit such persons to possess duty weapons for employment with a police force, the National Guard, or military service.

Following a hearing, the judge denied the motion to vacate the forfeiture order. The court reasoned: what the defendant must now show is that not only have circumstances changed such that he is no longer a danger to his former spouse, but also that he will suffer extreme and unexpected hardship if he is not able to possess personal weapons.

The court does not need to address whether or not the alleged facts asserted in the defendant's Brief are a change in circumstance because the defendant did not certify to such facts. Secondly, the defendant did not show how he will suffer extreme and unexpected ...


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