If the abuser's gun is taken away, what will happen to it?
If the gun is taken away as part of your restraining order, a law enforcement officer will accompany the abuser to any place where the firearm is located and take possession of the firearm(s). If the restraining order prohibits the abuser from going to the place where his/her firearms or other weapons are located or if the abuser cannot or will not accompany the officer for other reasons, the law enforcement officer will go without the abuser and seize (take) the firearms.1
If the gun is taken away by law enforcement due to an arrest for domestic violence (after a 911 call, for example), the law enforcement officer will deliver the firearm (along with any “firearms purchaser identification card” or “permit to purchase a handgun”) to the county prosecutor.2 Within 45 days, the prosecutor has the option to file a petition with the judge to:
- object to the weapons being returned to the abuser;
- ask for title to the seized weapons; and/or
- ask that any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons to be revoked (cancelled).3
If the prosecutor files this petition, s/he would have to notify the abuser of the petition and then a hearing would be held (where the abuser can be present). At the hearing, the judge would decide whether or not to return the firearms. The firearms can be returned if:
- the victim “drops the charges” and the prosecutor believes there is not enough evidence to have the abuser indicted without the victim’s cooperation;
- the abuser is not indicted by the grand jury on the criminal charges;
- the abuser is found “not guilty” after a trial; or
- if the judge decides that the “domestic violence situation” no longer exists.3
If, after the hearing, the judge determines that the weapons should not be returned to the abuser, the judge could do any of the following:
- order the revocation (cancelation) of the owner’s firearms purchaser identification card or any permit, license or authorization;
- order the abuser to surrender any other firearms s/he owns to the prosecutor; and
- allow the abuser to arrange for the sale of the firearms to a registered dealer of the firearms – but if this is not done within 60 days, the prosecutor would instead have the firearms destroyed.4
However, once a defendant is found guilty of a crime or offense involving domestic violence, different standards apply that those listed in 1-3 above. The judge will order the defendant to arrange for the immediate surrender to law enforcement of any firearm that has not already been seized or surrendered. Any firearms purchaser identification card or permit to purchase a handgun will be considered immediately revoked and the abuser will have to turn those in to law enforcement as well. The defendant then has 5 business days to arrange for the sale of any of the surrendered firearms to a licensed retail firearms dealer if s/he chooses to do so (and the firearms dealer has to get the firearms from law enforcement within 10 business days of when the judge ordered the surrender of the firearms). Otherwise, the firearms will be destroyed. Once the abuser gives the firearms to law enforcement, s/he will get a receipt and s/he has 48 hours to give that receipt to the prosecutor.5
1 NJ Stat. § 2C:25-29(b)
2 NJ Stat. § 2C:25-21(d)(1),(2)
3 NJ Stat. § 2C:25-21(d)(3)
4 NJ Stat. §§ 2C:25-21(d)(3); 2C:64-6
5 NJ Stat. §§ 2C:25-27(c); 2C:64-6
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our NJ Sheriff Departments page.
You can find ATF field offices in New Jersey on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our NJ Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.