In Re the State for the Forfeiture of Personal Weapons & Firearms Identification Card Belonging to F.M. , 225 N.J. 487 ( 2016 )

SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of the Application of the State of New Jersey for the Forfeiture of Personal Weapons and
Firearms Identification Card Belonging to F.M. (A-60-14) (074964)
Argued March 1, 2016 -- Decided June 30, 2016
SOLOMON, J., writing for a unanimous Court.
The issue in this appeal is whether respondent F.M.’s personal firearm and firearms purchaser identification
card (identification card), seized pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to
-35 (Domestic Violence Act), should be forfeited pursuant to N.J.S.A. 2C:58-3(c)(5) based on the State’s claim that
rearming F.M. “would not be in the interest of the public health, safety or welfare.”
The incident of domestic violence that gave rise to these proceedings occurred on March 14, 2010, after
F.M. and G.M. had separated. F.M. came to the marital residence to visit and go out with their children. G.M.,
claiming F.M. did not have visitation scheduled for that day, held on to the rear spoiler of F.M.’s automobile to
prevent him from leaving with the children. The altercation was ongoing when Officer Brian McDonnell of the
Morristown Police Department arrived at the residence on a report of domestic violence. As the officer approached,
he observed F.M. pull G.M. off of F.M.’s vehicle and attempt to “throw” her, face forward, onto a four-foot stone
retaining wall. Observing injuries on G.M.’s forearm, the officer arrested F.M. for domestic violence and charged
him with simple assault. As a result of that incident (the March 14 incident), G.M. obtained a temporary restraining
order (TRO), and the Roseland Police Department confiscated F.M.’s personal firearm and ankle knife. (F.M. was
employed as an officer with the Roseland Police Department.)
At the final restraining order (FRO) hearing, G.M. contended that F.M. had entered the marital residence
unannounced and without her permission, in violation of a Consent Order entered into on February 17, 2010. The
Family Part concluded that there was insufficient evidence to sustain G.M.’s application for a final restraining order.
The court dismissed the simple assault charge against F.M. after he completed court-ordered counseling. The State
filed a motion to forfeit F.M.’s personal weapon and identification card. During the motion hearing, the prosecutor
advised the court that the Roseland Police Department had determined F.M. was fit for light duty only. The judge
ordered the department to retain F.M.’s personal and service weapons until further order of the court, and ordered
that F.M. attend an approved batterer-intervention program and individual counseling. F.M. completed the court-
ordered batterer-intervention program and counseling and, in September 2012, filed a motion seeking the return of
his personal weapon. Based on F.M.’s history of domestic violence, the State opposed the motion, arguing that
returning F.M.’s weapon “would not be in the interest of public health, safety or welfare.” N.J.S.A. 2C:58-3(c)(5).
At the evidentiary hearing on the State’s motion to forfeit F.M.’s personal weapon and identification card,
G.M. testified to reported and unreported incidents of domestic violence. G.M. testified that in one incident, F.M.
“sat on” her during a verbal altercation and placed a gun to her head. On another occasion, F.M. “grabbed [her]
neck,” “forced [her] to the ground,” “handcuffed [her] in front of [their] children,” and “dragged [her] out of the
room.” G.M. also elaborated on the details of the March 14 incident, stating that F.M. pulled the vehicle forward to
push her out of the way and “revved back and forth to jolt [her] off” as she clung to the rear spoiler of his car. The
State proffered Officer McDonnell to corroborate G.M.’s testimony regarding the March 14 incident.
The State presented two experts. Dr. Matthew Guller, a licensed psychologist and board-certified police
psychologist who performed a Fitness for Duty (FFD) evaluation on F.M. following the March 14 incident,
concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger[] to
himself or others.” Dr. Lewis Schlosser, also a licensed psychologist, concluded that F.M. was “psychologically
impaired for the role of a municipal police officer and, therefore, not fit for duty.” Dr. Schlosser acknowledged that
he had not performed an evaluation on whether F.M. should possess a personal firearm, “but in light of the events in
the record, [he] would have concern for [G.M.] should [F.M.] have a private firearm.”
The Family Part judge denied the State’s forfeiture motion, relying in part on his “feel for [this case]” based
on prior proceedings and “conversations and consultations” with other judges before whom the parties appeared. In
addition, the court reasoned that the experts’ personality profile merely described “subclinical personality styles and
1
tendencies,” which did not amount to clinical mental illness or a personality disorder. The court ordered the return
of F.M.’s weapon and identification card, while granting the State’s motion for a stay pending appeal.
The Appellate Division affirmed, repeating the Family Part’s assertion that “there was no evidence showing
F.M. had ever used a firearm inappropriately” and holding that there was substantial, credible evidence to support
the Family Part’s determination that F.M. is not disqualified from possessing a firearm under N.J.S.A. 2C:58-
3(c)(5). The appellate panel remanded the matter for the return of F.M.’s weapon and identification card, while
granting the State’s motion for a stay pending certification to the Supreme Court. The Supreme Court granted the
State’s petition for certification. 221 N.J. 565 (2015).
HELD: The Family Part applied an incorrect legal standard and its conclusions were not supported by substantial,
credible evidence in the record. The record establishes that the return of F.M.’s personal weapon and identification
card is inconsistent with N.J.S.A. 2C:58-3(c)(5) and, therefore, F.M.’s weapon and identification card are forfeited.
1. N.J.S.A. 2C:58-3(c) provides that a “person of good character and good repute in the community in which he
lives” must be issued an identification card and permit, unless that person is “subject to any of the disabilities set
forth [therein].” These disabilities apply to “any person where the issuance would not be in the interest of the public
health, safety or welfare,” and “any person whose firearm is seized pursuant to the Prevention of Domestic Violence
Act of 1991 . . . and whose firearm has not been returned[.]” N.J.S.A. 2C:58-3(c)(5) and (8). N.J.S.A. 2C:58-
3(c)(5) “is ‘intended to relate to cases of individual unfitness, where . . . the issuance of the permit or identification
card would . . . be contrary to the public interest.’” In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003).
N.J.S.A. 2C:58-3(f) provides that “[a]ny firearms purchaser identification card may be revoked… upon a finding
that the holder thereof no longer qualifies for the issuance of such permit.” The burden is on the State to prove, “by
a preponderance of the evidence, that forfeiture is legally warranted.” State v. Cordoma, 372 N.J. Super. 524, 533
(App. Div. 2004) (emphasis added). (pp. 25-28)
2. The Domestic Violence Act is intended “to assure the victims of domestic violence the maximum protection from
abuse the law can provide.” N.J.S.A. 2C:25-18. “Because the presence of weapons can heighten the risk of harm in
an incident of domestic violence, the statute contains detailed provisions with respect to weapons.” State v. Harris,
211 N.J. 566, 579 (2012). The statute authorizes the police to seize weapons when responding to a domestic
violence complaint. Even if a domestic violence complaint is dismissed and the conditions abate, forfeiture may be
ordered if the defendant is subject to any of the disabilities in N.J.S.A. 2C:58-3(c), which includes that defendant’s
possession of weapons “would not be in the interests of the public health safety or welfare.” (pp. 28-32)
3. In a domestic violence forfeiture action, a Family Part judge’s assessment of the parties’ relationship and their
history of domestic violence is generally entitled to heightened deference, but the judge’s legal conclusions are not
entitled to deference. Here, the Family Part judge incorrectly stated the applicable standard when he held that the
State was required to prove “more than just a showing that some danger might exist.” The State was required only
to show by a preponderance of the evidence that F.M.’s possession would not be “in the interest of the public health,
safety or welfare.” Furthermore, the judge erred by interpreting N.J.S.A. 2C:58-3(c)(5) as requiring that F.M. suffer
from a “disorder.” F.M. may be disqualified under N.J.S.A. 2C:58-3(c)(5) because of elements of “narcissistic, anti-
social, or paranoid personality disorder” as explained by Dr. Schlosser in his FFD evaluation report. (pp. 32-35)
4. The Court gives no special deference to the Family Part judge’s factual findings in this case because he
considered matters outside of the hearing record. Moreover, because the unchallenged expert testimony was that
F.M. was not fit to possess a firearm, the judge’s failure to recognize that N.J.S.A. 2C:58-3(c)(5) does not require
that an individual possess a diagnosable disorder to be disqualified from possessing a gun is particularly significant.
Because the Family Part applied an incorrect legal standard and its conclusions were not supported by substantial,
credible evidence in the record, and because the Court finds that the return of F.M.’s personal weapon and
identification card is inconsistent with N.J.S.A. 2C:58-3(c)(5), F.M.’s weapon and identification card are forfeited.
(pp. 35-40)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Family Part
for entry of an order forfeiting F.M.’s weapon and firearms purchaser identification card.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-60 September Term 2014
074964
IN THE MATTER OF THE
APPLICATION OF THE STATE OF
NEW JERSEY FOR THE FORFEITURE
OF PERSONAL WEAPONS AND
FIREARMS IDENTIFICATION CARD1
BELONGING TO F.M.
Argued March 1, 2016 – Decided June 30, 2016
On certification to the Superior Court,
Appellate Division.
Erin Smith Wisloff argued the cause for
appellant State of New Jersey (Fredric M.
Knapp, Morris County Prosecutor, attorney).
Alfred V. Gellene argued the cause for
respondent F.M. (Fusco & Macaluso,
attorneys).
JUSTICE SOLOMON delivered the opinion of the Court.
In 2010, respondent F.M.’s personal firearm and firearms
purchaser identification card (identification card) were seized
pursuant to the Prevention of Domestic Violence Act of 1991,
N.J.S.A. 2C:25-17 to -35 (Domestic Violence Act).2 Both items
1 The statute on possession and licensing of firearms, N.J.S.A.
2C:58-3, refers to an identification card required to purchase
firearms as a “firearms purchaser identification card.”
2 N.J.S.A. 2C:58-3(a) refers to permits to purchase a handgun,
which expire after ninety days. N.J.S.A. 2C:58-3(a) and (f). A
new permit must be obtained for each handgun purchase. See
N.J.S.A. 2C:58-3(f). N.J.S.A. 2C:58-3(b) refers to firearms
purchaser identification cards which are lasting and which must
1
were seized after a temporary restraining order was issued
against him in protection of his wife, G.M. Although the Family
Part denied a final restraining order, the State filed a motion
to forfeit F.M.’s weapon and revoke his identification card
based on N.J.S.A. 2C:58-3(c)(5), contending that rearming F.M.
“would not be in the interest of the public health, safety or
welfare.”
After conducting an evidentiary hearing, the Family Part
denied the State’s motion and ordered the return of F.M.’s
weapon and identification card, even though the unrefuted expert
testimony was that F.M. should be disarmed. The Appellate
Division affirmed and remanded the matter for the return of
F.M.’s weapon.
We granted certification, at the State’s request, to review
the decision of the trial court and the Appellate Division that
returned to F.M. his personal weapon and identification card.
The State contends that the trial court ignored substantial
evidence in the record to support forfeiture, and improperly
relied on extra-judicial information in reaching erroneous
decisions. Based on a thorough review of this record, we agree
with the State and reverse and remand to the Family Part for
be obtained to “acquire an antique cannon or a rifle or
shotgun.”
2
entry of an order forfeiting F.M.’s weapon and identification
card.
I.
A.
The incident of domestic violence that gave rise to these
proceedings occurred on March 14, 2010, after F.M. and G.M. had
separated. It began when F.M. came to the marital residence to
visit and go out with their children. G.M., claiming F.M. did
not have visitation scheduled for that day, held on to the rear
spoiler of F.M.’s automobile to prevent him from leaving with
the children. The altercation was ongoing when Officer Brian
McDonnell of the Morristown Police Department arrived at the
marital residence on a report of domestic violence. As the
officer approached, he observed F.M. pull G.M. off of F.M.’s
vehicle and attempt to “throw” her, face forward, onto a four-
foot stone retaining wall.
Observing injuries on G.M.’s forearm, the officer arrested
F.M. for domestic violence and charged him with simple assault.
As a result of that incident (the March 14 incident), G.M.
obtained a temporary restraining order (TRO), and the Roseland
3
Police Department confiscated F.M.’s personal firearm and ankle
knife.3
At the final restraining order (sometimes referred to as
FRO) hearing, G.M. contended that F.M. had entered the marital
residence unannounced and without her permission, in violation
of a Consent Order entered into on February 17, 2010 (the
Consent Order). The Consent Order provided that F.M. was not to
come to G.M.’s residence without her consent, outlined F.M.’s
visitation with the children, and, if visitation conflicted with
F.M.’s work schedule, required the parties to arrange an
alternative. In his defense, F.M. argued that G.M. had agreed
to visitation on the day of the incident because F.M.’s work
schedule conflicted with the regular visitation schedule. F.M.
also stated that it was reasonable for him to remove G.M. from
the vehicle because she was preventing him from exercising his
right to visitation with his children by grabbing the rear
spoiler of his car. After hearing from the parties and Officer
McDonnell, the Family Part concluded that there was insufficient
evidence to sustain G.M.’s application for a final restraining
order. Also, the court subsequently dismissed the simple
3 G.M. testified that F.M. was residing in Roseland at the time.
F.M. was also employed as an officer with the Roseland Police
Department.
4
assault charge against F.M. after he completed court-ordered
counseling.
Following the dismissal of the March 2010 TRO and criminal
charges against F.M., the State filed a motion to forfeit F.M.’s
personal weapon and identification card. During a hearing on
the State’s motion, the prosecutor advised the court that the
Roseland Police Department had determined F.M. was fit for light
duty only, and the judge ordered the department to retain F.M.’s
personal and service weapons until further order of the court.
The judge noted that it would issue a decision on the final
disposition of F.M.’s personal and service weapons after he
completed an approved batterer-intervention program and attended
individual counseling.
F.M. completed the court-ordered batterer-intervention
program and counseling4 and, in September 2012, filed a motion
seeking the return of his personal weapon. Based on F.M.’s
history of domestic violence, the State opposed the motion,
arguing that returning F.M.’s weapon “would not be in the
interest of public health, safety or welfare.”
B.
4 F.M. attended weekly psychotherapy sessions and completed a
twenty-six-session program for perpetrators of domestic
violence.
5
At the evidentiary hearing on the State’s motion to forfeit
F.M.’s personal weapon and identification card in March and May
of 2013 (the evidentiary hearing), the State presented the
testimony of G.M. and two expert witnesses. F.M. testified on
his own behalf. The following procedural history and facts are
gleaned from that hearing.
F.M. and G.M. were married in 1996 and had two children.
During the early years of their marriage, F.M. worked for the
Army at Fort Benning, Georgia. In 2001, respondent became a
police officer with the Roseland Police Department where he
remained employed until his termination in 2013. The marriage
was marked by complaints of domestic violence until a divorce
was finalized in 2011.
G.M. testified to the history of domestic violence that led
up to the March 14 incident, beginning with two unreported
episodes of domestic violence that allegedly occurred in 1997
and 2003. According to G.M., F.M. “sat on” her during a verbal
altercation in 1997 and placed a gun to her head. She claimed
she did not report the incident because she “did not want” F.M.
to lose his job. G.M. also testified that, during an argument
in 2003, F.M. “grabbed [her] neck,” “forced [her] to the
ground,” “handcuffed [her] in front of [their] children,” and
“dragged [her] out of the room.” G.M. stated that she did not
6
report this incident because she “was afraid” and “didn’t know
what to do.”
G.M. also attested to a number of reported incidents. She
stated that in December 2009, she was involved in a verbal
dispute with F.M. over household finances. When she complained
to F.M. that he was “verbally abusing” her and referred to
documents she received from the New Jersey Battered Women’s
Shelter, F.M. allegedly lifted a stool as if he was going to hit
her, stating “this is domestic violence.” G.M. stayed at her
friend’s house that night, obtained a TRO the next day, and F.M.
agreed to vacate the marital residence. Ultimately, the Family
Part denied G.M.’s application for a final restraining order,
but F.M.’s duty weapons were confiscated pursuant to the TRO,
and he was assigned to desk duty with the Roseland Police
Department.5
G.M. next described two incidents that took place in
January 2010. The first incident began with a “heated argument”
over the phone started by G.M. when she learned F.M. had an
extramarital affair, and he refused to say where he was living.
F.M. drove to the marital home, continued the argument, and at
one point “clasped his hands,” placed them over G.M., and told
her to calm down and “keep her mouth shut.” G.M. claimed she
5 Only F.M.’s service weapons were seized at the time; they were
never returned.
7
felt intimidated and asked several times for F.M. to leave, but
he refused. G.M. then stood on a chair and told F.M. that she
felt like “f***ing him up” for what he had put her through.
When F.M. pretended to call the police, G.M. said “why don’t you
arrest me, you have done everything else to me,” pulled her
pants down, and asked him if he wanted to rape her too. G.M.
testified that she then slapped F.M. and grabbed him in his
groin area. According to G.M., F.M. “lifted [her] by [her]
arms,” “threw” her to the floor, “sat on” her, and told her to
calm down. G.M. stated that she sustained bruises on her arms
as a result of this incident.
According to G.M., the next incident took place five days
later while G.M. and F.M. were in a vehicle after speaking with
a Division of Youth and Family Services (DYFS)6 caseworker, with
whom they met to discuss issues regarding F.M.’s nephew who was
living with them at the time.7 According to G.M., F.M. became
angry with G.M. for telling the caseworker about an incident
involving his nephew that occurred earlier that week. When they
arrived at the marital home and G.M. parked in the driveway,
6 The Division of Youth and Family Services was renamed the
Division of Child Protection and Permanency in 2012. See P.L.
2012, c. 16.
7 The record does not reveal why respondent’s nephew was residing
with F.M. and G.M., or the nature of the issue.
8
F.M. took her phone and car keys, and grabbed her arm “really
hard” to prevent her from leaving the car. G.M. eventually
loosened herself from F.M. and went into the house; she
sustained a “string of bruises” on her arms. G.M. reported
those two incidents to the police and obtained a TRO against
F.M.,8 but voluntarily dismissed the TRO once the Consent Order
was entered.
After explaining the above incidents, G.M. elaborated on
the details of the March 14 incident, which resulted in the
confiscation of F.M.’s personal weapon and identification card.
According to G.M., she was awakened at about 7:00 a.m. by the
sound of someone walking up the stairs, and she found F.M. in
their children’s bedroom. G.M. stated that F.M. did not have
visitation with the children that day, and she reminded him
about a DYFS caseworker’s warning that the children would be
taken away if domestic violence continued in the household.
F.M. replied that he “didn’t care.”
G.M. claimed that F.M. ignored her demands to leave and
walked the children to his car. G.M. called the police and
8 F.M. was also charged with simple assault and false
imprisonment. The criminal charges related to this incident
were subsequently dismissed by a municipal court for G.M.’s
failure to appear. G.M. testified that she never received any
documents from the court to appear regarding the criminal
charges and unsuccessfully sought to reopen the criminal
complaint.
9
attempted to delay F.M.’s departure with the children by
standing in the driveway. F.M. then pulled the vehicle forward
to push G.M. out of the way, but she clung to the rear spoiler
of his car. F.M. then “revved back and forth to jolt [her]
off.” After “a minute or two,” F.M. turned the car’s engine
off, approached G.M., pulled her off of the car, carried her
toward a four-foot stone retaining wall, and attempted,
unsuccessfully, to “throw” G.M. over the wall. When G.M. saw
Officer McDonnell arrive at the scene, she “kind of black[ed]
out.”
The State proffered Officer McDonnell to corroborate G.M.’s
testimony regarding the March 14 incident, and the judge
incorporated into the record of the evidentiary hearing, by
reference, the officer’s testimony from the FRO hearing, which
the judge had also presided over. Officer McDonnell’s testimony
at the FRO hearing reveals that he was dispatched to the marital
residence on a report of domestic violence. As the officer
approached, he observed G.M. “grabbing on the back of [F.M.’s]
car.” F.M. was “standing behind her, grabb[ing] her by her
arms[, and] pulling her off the back of his vehicle towards the
sidewalk.” The officer then observed F.M. “push [G.M.], throw
her on [a three or four foot stone retaining] wall,” “face
forward.” F.M. “turned around and started walking away,” while
G.M. “was standing there . . . yelling back[.]” During cross-
10
examination, Officer McDonnell testified that he did not observe
F.M. “throw her to the ground, punch, [or do] anything
excessive,” and further noted that F.M. complied with every
order the police made at the scene. However, upon observing
scratches on G.M.’s forearms, the officer arrested F.M. for
domestic violence and charged him with simple assault. A TRO
was issued, and F.M.’s personal firearm and ankle knife were
confiscated.9
The State next presented the testimony of Dr. Matthew
Guller, a licensed psychologist and board-certified police
psychologist who performed a Fitness for Duty (FFD) evaluation
on F.M. following the March 14 incident.10 Dr. Guller
interviewed F.M. to evaluate his “personality traits,” and
administered various psychological tests, including the Shipley
Institute of Living Scale, which measures the presence or
absence of major mental illnesses, and the Minnesota Multiphasic
Personality Inventory – 2 (MMPI2), which measures the subject’s
personality traits and psychopathology. As part of F.M.’s
9 It is unclear from the record whether F.M.’s ankle knife was
ever returned to him. That issue is not before the Court.
10An FFD evaluation is administered by psychologists to
determine whether a police officer is psychologically impaired
such that he or she is unable to continue working as a police
officer. F.M. was subjected to three separate evaluations
before being terminated from his position as a police officer in
April 2013.
11
evaluation, Dr. Guller also interviewed G.M., found her account
of the incidents involving F.M. “generally credible,” and
testified that the interview with her “did not raise concerns
about [F.M.’s] serious violent propensities” because G.M. raised
several collateral issues about F.M. Nevertheless, Dr. Guller
noted his apprehensions about the physical nature of the
restraints F.M. imposed on G.M. during the incidents.
After reviewing the results of the psychological tests
performed, his interviews with F.M. and G.M., prior restraining
orders, a prior FFD evaluation,11 internal affairs records, and
other police reports, Dr. Guller concluded that F.M. was not fit
for full duty and recommended that he be disarmed because he was
a “danger[] to himself or others.” Dr. Guller explained that
his conclusions were based on F.M.’s “consistent pattern of
failing to deescalate or back out of volatile situations with
his wife” and his “pervasive need to be right.” Dr. Guller was
particularly concerned that F.M. admitted to physically
restraining G.M. and that “he was just unable to deescalate and
walk away from a heated situation.” As a result of this
evaluation, Dr. Guller recommended that F.M. undergo weekly one-
11Defendant was referred for the first FFD evaluation in 2007
based on an allegation of abuse by G.M. Dr. Leslie Williams
conducted the evaluation and concluded that F.M. was fit for
duty at the time. The Roseland Police Department allowed F.M.
to rearm after he completed recommended therapy sessions.
12
on-one counseling for at least four months and enroll in a
twenty-six-week domestic violence program.
Dr. Guller testified that F.M. was advised “in no uncertain
terms that he must make arrangements for visitation and other
details of his marital affairs so that he has no further
confrontations with his wife requiring police response.” Dr.
Guller noted in the FFD evaluation report that the Roseland
Police Department “should consider serious administrative action
up to and including termination” if F.M. becomes involved in
further incidents of domestic violence requiring police
intervention. Dr. Guller’s credibility and qualifications were
not questioned, and his testimony was unrefuted.
Dr. Lewis Schlosser was the second expert to testify on
behalf of the State. Dr. Schlosser, also a licensed
psychologist devoted to evaluating police officers’ fitness for
duty, explained that F.M. was referred to him for a third FFD
evaluation in May 2012 following F.M.’s “several incidents with
[G.M.], which call[ed] in[to] question his judgment, impulse and
anger control.” Those incidents occurred five months after the
March 2010 evaluation by Dr. Guller, and included a dispute with
G.M. over the location of their custody change which
necessitated police intervention, and an incident at the
children’s bus stop where F.M. grabbed his daughter’s backpack
13
from G.M. and yelled at her.12 In addition, F.M. had been
charged at work with insubordination and falling asleep at his
post.
Dr. Schlosser administered several psychological tests and
concluded in his report, which he testified about and which was
admitted into evidence, that, “[w]hile there is insufficient
evidence to conclude that [F.M.] exhibits a narcissistic, anti-
social, or paranoid personality disorder, he does appear to
exhibit elements of these personality disorders, which have a
significant negative impact on his ability to effectively
perform his duties as a police officer.” More specifically, Dr.
Schlosser explained in the report that F.M. had problems
trusting others, and suffered from “a nearly paranoid sense that
everyone was out to get him, poor impulse control, poor anger
control, and poor judgment.” He also indicated that the results
of the psychological testing and his interview with F.M. showed
that F.M. “did not accept any responsibility for the problems in
his life.” Dr. Schlosser also questioned F.M.’s credibility,
noting that F.M. initially denied being involved in any
incidents since his 2010 arrest, but admitted to “restrain[ing]”
G.M. on two occasions after he was presented with “collateral
12Even though these incidents appear to bolster G.M.’s
contentions, they were not referred to by G.M. in her testimony
at the evidentiary hearing.
14
information.” Dr. Schlosser noted that, when asked about
disciplinary actions at work, F.M. reported the insubordination
charge only and claimed that the Chief of the Roseland Police
Department was “lying” about F.M.’s falling asleep at his post.
Dr. Schlosser also interviewed G.M. over the telephone for
the limited purpose of verifying her account of the two
incidents that occurred after the March 2010 FFD evaluation.
Dr. Schlosser concluded, based on the entirety of the
evidence he reviewed, that F.M. was “psychologically impaired
for the role of a municipal police officer and, therefore, not
fit for duty.” Dr. Schlosser indicated in the FFD evaluation
report that the past eighteen months of psychotherapy had not
helped F.M. change his ways of interacting with his ex-wife or
his fellow officers and superiors, and F.M. “demonstrated a
consistent pattern of problematic functioning that is of
sufficient magnitude to find F.M. impaired and unlikely to be
restored to duty in a reasonable period of time.”
In particular, Dr. Schlosser stated his belief that the
“public would be in danger if [F.M.] continued to work as a
police officer because of [his] need to be right and his
seemingly paranoid ideation.” Dr. Schlosser testified that he
was “frightened” by the idea of a citizen interacting with an
officer who “is paranoid, thinks people are out to get [him],
and who engages in impulsive bad judgments that lead to more
15
violence.” Dr. Schlosser noted that, even if G.M. engaged in
provocative behavior, it did not excuse the actions of F.M., who
was clearly warned by Dr. Guller that there could not be further
negative interactions with G.M.
When asked by the court if he had an opinion on whether
F.M. should possess a personal firearm, Dr. Schlosser
acknowledged that he had not performed an evaluation on that
particular issue, “but in light of the events in the record,
[he] would have concern for [G.M.] should [F.M.] have a private
firearm.” Like Dr. Guller, Dr. Schlosser’s credibility and
qualifications were not challenged, and his testimony was
unrefuted.
Finally, F.M. testified. He denied ever pointing a firearm
at or threatening to use a firearm against G.M., and he stated
that he did not remember any of the other incidents about which
G.M. testified. However, he was able to relate an incident in
August 2010 in which he obtained an FRO against G.M. He
testified that G.M. brought the children to the Roseland Police
Department at his request and while he was on duty, and then
argued with F.M. because he refused to tell her who would be
watching the children until he completed his shift. F.M. said
that G.M. stationed herself outside police headquarters and even
called his supervisors. As a result of that incident, the
16
Family Part13 found that G.M.’s conduct amounted to harassment
within the meaning of N.J.S.A. 2C:33-4(c), by engaging in a
“course of alarming conduct” with the “purpose to alarm or
seriously annoy” her estranged husband, and granted F.M. a final
restraining order against G.M. The Appellate Division reversed
the grant of a final restraining order in an unpublished opinion
issued in September 2011, finding that there was insufficient
evidence to show G.M. committed an act of harassment. The
Appellate Division saw “nothing unusual in [G.M.’s] appeal to
[F.M.] as a bystander to obtain the requested information.
Although [G.M.’s] calls to other superior officers are perhaps
less justified, [there was] no evidence that those calls were
motivated by a purpose to harass [F.M.], rather than by the
desire to obtain withheld child custody and childcare
information to which [G.M.] was entitled.”
C.
Following the evidentiary hearing, the Family Part judge
denied the State’s forfeiture motion. The judge declared that
he had “ascertain[ed a] feel for [this case]” because he had
presided over prior divorce and domestic violence proceedings
involving F.M. and G.M., and “had conversations and
consultations with colleagues” who heard divorce proceedings or
13 This matter was heard by a different Family Part judge.
17
worked on the domestic violence complaint filed by F.M. against
G.M. The court then addressed whether F.M. was entitled to the
return of his weapon and identification card.
First, the court interpreted New Jersey jurisprudence and
“various Supreme Court cases,” including District of Columbia v.
Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008),
to “stand for the proposition that a limit on a citizen’s right
to bear arms is a Constitutional limit, and has to rest on . . .
more than just a showing that some danger might exist.” Thus,
the judge concluded, a “difficult and tumultuous” marriage and
divorce proceedings were not an adequate basis to deny F.M.’s
constitutional right to bear arms:
One could make the argument, although
ultimately would have to be rejected, that .
. . everybody going through a difficult, or
bitter, or protracted, or highly contested
divorce case should be disarmed. I don’t
think that . . . would stand Constitutional
scrutiny.
The judge also found that G.M.’s “concerns, fears, and
experiences with [F.M.] . . . [were] not . . . completely
credible or reliable as a basis of judgment,” because she went
through contested and bitter divorce proceedings and “was
disappointed with the custodial rulings and arrangements,” which
“colored her perception and articulation of what had happened
and what might be expected in the future.” In particular, the
court discredited G.M.’s testimony regarding the unreported
18
domestic violence incidents in 1997 and 2003. As to the
reported incidents, the judge found that the Appellate
Division’s September 2011 decision “capture[d] in many ways the
conflicts between” F.M. and G.M.,14 and “determined that the type
of trouble they had . . . although fairly acute and unfortunate
still did not rise to the level of domestic violence.” The
court further stated that “when certain people have certain
personality styles the resistible [sic] force meets the
immoveable object.”
With respect to the expert opinions that raised concerns
about rearming F.M., the court found that F.M.’s personality
profile, as developed by the experts, was not an adequate basis
to disqualify F.M. from repossessing his weapon. The court
reasoned that the experts evaluated whether F.M. was fit for
duty as a police officer, not whether his right to bear arms
should be restricted, and the personality profile merely
described “subclinical personality styles and tendencies,” which
did not amount to clinical mental illness or a personality
disorder. Additionally, the judge found that there was no
evidence that F.M. had “ever been shown to use a weapon
14However, in September 2011, the Appellate Division dismissed
the final restraining order obtained by F.M. against G.M. based
on an allegation of harassment in August 2010. The panel
concluded that there was insufficient evidence to support the
entry of the final restraining order.
19
inappropriately,” and that the finalization of divorce
proceedings would reduce the occasion for conflict between F.M.
and G.M.
The judge also rejected the experts’ finding that G.M. was
credible, noting the experts “did not have the same exposure” to
the parties’ disputes as he did, “and don’t have the same
experience as a Family Court Judge.” The judge referred to the
fact that an FRO was issued against G.M. in connection with the
August 2010 incident where G.M. contacted F.M. and his superiors
at work, and concluded that F.M. cannot be held responsible for
the incidents that required police intervention when G.M.
instigated the disputes.
[W]hen there is this level of conflict between
divorcing parents and one of the parties is at
risk regarding his position in employment if
certain things happen, it provides a
motivation for an adversarial party.
Based on these findings, the court ordered the return of
F.M.’s weapon and identification card, while granting the
State’s motion for a stay pending appeal. See R. 2:9-5. The
Appellate Division affirmed the Family Part’s decision to deny
the State’s forfeiture motion.
The appellate panel repeated the Family Part’s assertion
that “there was no evidence showing F.M. had ever used a firearm
inappropriately,” and held that there was substantial, credible
evidence to support the Family Part’s determination that F.M. is
20
not disqualified from possessing a firearm under N.J.S.A. 2C:58-
3(c)(5). The panel determined that the Family Part properly
found that F.M. was not diagnosed with a disorder; that F.M.’s
“outbursts” were due to frustration with the marital break-up,
as opposed to a propensity for violence; and that the experts
failed to consider G.M.’s role in fueling the parties’
conflicts. Concerning the State’s contention that the Family
Part failed to consider the March 14 incident, which was
witnessed and largely corroborated by Officer McDonnell, the
Appellate Division explained that the Family Part was not
required to specifically comment on Officer McDonnell’s account
of the incident, and that the officer’s testimony “did not
indicate that [F.M.] did anything excessive to G.M.”
Accordingly, the panel remanded the matter for dissolution of
the stay and return of F.M.’s weapon and identification card,
while granting the State’s request to stay the return of F.M.’s
weapon and identification card pending resolution by this Court.
This Court granted the State’s petition for certification.
221 N.J. 565 (2015).
II.
The contentions of the parties relevant to this appeal are
as follows. The State claims the correct standard governing the
forfeiture of F.M.’s weapon and identification card under
N.J.S.A. 2C:58-3(c)(5) is not whether F.M. had been diagnosed
21
with a disorder or ever used a firearm inappropriately, but
whether his possession of a firearm “would not be in the
interest of the public health, safety or welfare.” The State
emphasizes that its burden of proof to disqualify F.M. from
possession of a weapon under N.J.S.A. 2C:58-3(c)(5) is “not a
great one,” but a mere preponderance of the evidence. State v.
Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004). The State
thus argues that the Appellate Division gave undue deference to
the Family Part’s determinations, relying only on the fact that
the seizure of F.M.’s weapon and identification card was related
to a domestic violence matter. Furthermore, the State contends
that the Family Part’s factual findings and legal conclusions,
which were adopted by the Appellate Division, were “manifestly
unsupported by . . . the competent, relevant, and reasonably
credible evidence” in the record. The State points out that the
experts analyzing F.M.’s fitness for duty raised concerns about
F.M. possessing a firearm and recommended disarming him. The
State also notes that the Family Part failed to make any
credibility determinations regarding F.M., even though Dr.
Schlosser testified that F.M. did not truthfully recount the
incidents with G.M. until he was presented with “collateral
information.”
F.M. asserts that the Family Part’s findings should be
examined under the highly deferential standard of review
22
ordinarily granted to the Family Part because this case
necessarily involves an evaluation of the underlying domestic
relationship between F.M. and G.M. F.M. also claims that the
Second Amendment to the United States Constitution, and the
Supreme Court’s decision in Heller, supra, 554 U.S. 570, 128 S.
Ct. 2783, 171 L. Ed. 2d 637, require the State to demonstrate
“more than a mere showing that some danger might exist” before
it infringes upon his constitutional right to bear arms.
Finally, F.M. argues that the evidence in the record supports
the Family Part’s conclusions because G.M.’s testimony was the
only factual evidence that the alleged incidents of domestic
violence occurred, a “majority” of which were never reported to
police, and none of the reported incidents resulted in a final
restraining order against F.M. He points out that the only
final restraining order ever issued was, in fact, issued against
G.M.15
III.
A.
We begin our discussion of the law governing forfeiture of
firearms and identification cards in an action under the
Domestic Violence Act by recognizing the scope of our appellate
review. Because “a judicial declaration that a defendant poses
15As explained at footnote 14, above, in September 2011, the
Appellate Division vacated this FRO for insufficient evidence.
23
a threat to the public health, safety or welfare involves, by
necessity, a fact-sensitive analysis,” Cordoma, supra, 372 N.J.
Super. at 535, “an appellate court should accept a trial court’s
findings of fact that are supported by substantial credible
evidence.” In re Return of Weapons to J.W.D., 149 N.J. 108,
116-17 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J.
599, 607 (1989)). Further, this Court has “vested great
discretion in our Family Part judges . . . [because] they are
judges who have been specially trained” in family matters, and
this Court “recognize[s] that their findings are entitled to
deference.” J.D. v. M.D.F., 207 N.J. 458, 482 (2011) (internal
citation omitted).
Therefore, “we do not disturb the factual findings and
legal conclusions of the trial judge unless we are convinced
that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to
offend the interests of justice.” Rova Farms Resort v. Inv’rs
Ins. Co., 65 N.J. 474, 484 (1974). “In those circumstances
solely should an appellate court ‘appraise the record as if it
were deciding the matter at inception and make its own findings
and conclusions.’” State v. Elders, 192 N.J. 224, 244 (2007)
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
However, questions of law are reviewed de novo. Gere v.
Louis, 209 N.J. 486, 499 (2012). The legal determinations of
24
the Family Part and Appellate Division are not entitled to any
special deference. Ibid.
B.
Turning specifically to the law governing forfeiture of
weapons and identification cards, the right to bear arms under
the Second Amendment to the United States Constitution is
subject to reasonable limitations. Heller, supra, 554 U.S. at
626, 128 S. Ct. at 2816-17, 171 L. Ed. at 678 (holding that
“[l]ike most rights, the right secured by the Second Amendment
is not unlimited”). The police power of the state provides our
Legislature with the authority to regulate firearms and
establish such “reasonable limitations” on their ownership.
McDonald v. City of Chicago, 561 U.S. 742, 901, 130 S. Ct. 3020,
3095, 177 L. Ed. 2d 894, 997 (2010) (“[T]he very text of the
Second Amendment calls for regulation, and the ability to
respond to the social ills associated with dangerous weapons
goes to the very core of the States’ police powers.”); see also
Crespo v. Crespo, 201 N.J. 207, 210 (2010) (“[T]he right to
possess firearms clearly may be subject to reasonable
limitations.”).
In that regard, the Legislature, in the exercise of its
authority to regulate firearms, has required an individual
seeking to purchase a handgun in New Jersey to first apply for
an identification card and permit. N.J.S.A. 2C:58-3(a) and (b);
25
N.J.A.C. 13:54-2.2. N.J.S.A. 2C:58-3(c) provides that a “person
of good character and good repute in the community in which he
lives” must be issued an identification card and permit, unless
that person is “subject to any of the disabilities set forth
[therein].” See also N.J.A.C. 13:54-1.5 (stating same). These
disabilities apply to “any person where the issuance would not
be in the interest of the public health, safety or welfare,” and
“any person whose firearm is seized pursuant to the Prevention
of Domestic Violence Act of 1991 . . . and whose firearm has not
been returned[.]” N.J.S.A. 2C:58-3(c)(5) and (8)16; see also
N.J.A.C. 13:54-1.5(a)(5). “[T]he statutory design is to prevent
firearms from coming into the hands of persons likely to pose a
danger to the public.” State v. Cunningham, 186 N.J. Super.
502, 511 (App. Div. 1982).
N.J.S.A. 2C:58-3(c)(5), the “public health, safety or
welfare” disqualifier, “is ‘intended to relate to cases of
individual unfitness, where, though not dealt with in the
specific statutory enumerations, the issuance of the permit or
identification card would nonetheless be contrary to the public
interest.’” In re Osworth, 365 N.J. Super. 72, 79 (App. Div.
2003) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968), appeal
dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748
16Other disabilities listed under N.J.S.A. 2C:58-3(c)(1)-(9) are
not pertinent to this appeal.
26
(1969)), certif. denied, 179 N.J. 310 (2004). That subsection
and N.J.S.A. 2C:58-3(c)(8), regarding seizure of firearms and
identification cards under the Domestic Violence Act, have been
upheld against Second Amendment challenges. See Crespo, supra,
201 N.J. at 209-10 (holding Domestic Violence Act constitutional
because “the right to possess firearms clearly may be subject to
reasonable limitations”); Burton, supra, 53 N.J. at 91
(rejecting constitutional challenge to predecessor statute to
N.J.S.A. 2C:58-3(c)(5)); see also In re Winston, 438 N.J. Super.
1, 10 (2014) (holding that Heller, supra, 554 U.S. 570, 128 S.
Ct. 2783, 171 L. Ed. 2d 637, and McDonald, supra, 561 U.S. 742,
130 S. Ct. 3020, 177 L. Ed. 2d 894 do not render N.J.S.A. 2C:58-
3(c)(5) unconstitutional), certif. denied, 220 N.J. 572 (2015);
In re Wheeler, 433 N.J. Super. 560, 617 (App. Div. 2013)
(addressing constitutionality of carry permit law).
The initial determination of whether to grant a permit or
an identification card is made by the chief of police of the
municipality where the applicant resides. N.J.S.A. 2C:58-3(d).
The police chief must grant a permit and identification card
“unless good cause for the denial thereof appears.” N.J.S.A.
2C:58-3(f). Thereafter, a denied applicant may request a
hearing in the Law Division. N.J.S.A. 2C:58-3(d); N.J.A.C.
13:54-1.12(a).
27
Similarly, the procedure for revoking an identification
card, which may be initiated upon application of the county
prosecutor, chief of police, a police officer or “any citizen,”
is governed by N.J.S.A. 2C:58-3(f). That statute provides that
“[a]ny firearms purchaser identification card may be revoked by
the Superior Court of the county wherein the card was issued,
after hearing upon notice, upon a finding that the holder
thereof no longer qualifies for the issuance of such permit.”
N.J.S.A. 2C:58-3(f). The burden is on the State to prove, “by a
preponderance of the evidence, that forfeiture is legally
warranted.” Cordoma, supra, 372 N.J. Super. at 533 (emphasis
added).
C.
Having reviewed New Jersey’s regulation of gun ownership
under N.J.S.A. 2C:58-3, we consider the interplay between that
statute and the Domestic Violence Act. The Domestic Violence
Act is intended “to assure the victims of domestic violence the
maximum protection from abuse the law can provide.”17 N.J.S.A.
17“Domestic violence” is defined as “the occurrence of one or
more of the following acts inflicted upon a person protected
under this act by an adult or an emancipated minor”: homicide,
assault, terroristic threats, kidnapping, criminal restraint,
false imprisonment, sexual assault, criminal sexual contact,
lewdness, criminal mischief, burglary, criminal trespass,
harassment, stalking, criminal coercion, robbery, contempt of a
domestic violence order that constitutes a crime or disorderly
persons offense, and any other crime involving risk of death or
serious bodily injury to a person protected under the Domestic
28
2C:25-18. In adopting the Domestic Violence Act, the
Legislature made clear that “it is the responsibility of the
courts to protect victims of violence that occurs in a family or
family-like setting by providing access to both emergent and
long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to
assure the safety of the victims and the public.” N.J.S.A.
2C:25-18. Accordingly, this Court has liberally construed the
Domestic Violence Act to achieve its purposes. Cesare v.
Cesare, 154 N.J. 394, 400 (1998). Indeed, we have held that the
Domestic Violence Act “is particularly solicitous of victims of
domestic violence,” as those who commit acts of violence may
“have an unhealthy need to control and dominate their partners
and frequently do not stop their abusive behavior despite a
court order.” State v. Hoffman, 149 N.J. 564, 584-85 (1997).
“Because the presence of weapons can heighten the risk of
harm in an incident of domestic violence, the statute contains
detailed provisions with respect to weapons.” State v. Harris,
211 N.J. 566, 579 (2012). The Domestic Violence Act authorizes
Violence Act. N.J.S.A. 2C:25-19(a). A spouse, former spouse,
or any other person who is a present or former household member
all qualify as protected persons. N.J.S.A. 2C:25-19(d). Courts
are required to consider “[t]he previous history of domestic
violence between the [parties], including threats, harassment
and physical abuse” when determining whether domestic violence
has occurred. N.J.S.A. 2C:25-29(a)(1).
29
the police to seize weapons when responding to a domestic
violence complaint:
(1) In addition to a law enforcement officer’s
authority to seize any weapon that is
contraband, evidence or an instrumentality of
crime, a law enforcement officer who has
probable cause to believe that an act of
domestic violence has been committed shall:
. . .
(b) upon observing or learning that a
weapon is present on the premises, seize
any weapon that the officer reasonably
believes would expose the victim to a
risk of serious bodily injury. If a law
enforcement officer seizes any firearm
pursuant to this paragraph, the officer
shall also seize any firearm purchaser
identification card or permit to purchase
a handgun issued to the person accused of
the act of domestic violence.
[N.J.S.A. 2C:25-21(d)(1)(b).]
Thereafter, the weapons are inventoried and turned over to
the county prosecutor. N.J.S.A. 2C:25-21(d)(2). The weapons
must be returned to the owner, unless the prosecutor makes an
application for forfeiture of the weapons and identification
card to “the Family Part of the Superior Court, Chancery
Division.” N.J.S.A. 2C:25-21(d)(3); see also M.S. v. Millburn
Police Dep’t, 197 N.J. 236, 248-49 (2008) (explaining process
for weapons forfeiture pursuant to Domestic Violence Act);
N.J.S.A. 2C:58-3(f) (“Any firearms purchaser identification card
may be revoked by the Superior Court of the county wherein the
card was issued, after hearing upon notice, upon a finding that
30
the holder thereof no longer qualifies for the issuance of such
permit.”).
Such proceedings are “summary in nature” and require the
court to return the firearms and identification card if the
owner is qualified:
[I]f the court determines the owner is not
subject to any of the disabilities set forth
in N.J.S.A. 2C:58-3(c) and finds that 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.
[N.J.S.A. 2C:25-21(d)(3).]
Therefore, even if a domestic violence complaint is dismissed
and the conditions abate, forfeiture may be ordered if the
defendant is subject to any of the disabilities in N.J.S.A.
2C:58-3(c), which includes that defendant’s possession of
weapons “would not be in the interests of the public health
safety or welfare.” N.J.S.A. 2C:58-3(c)(5); see In re J.W.D.,
supra, 149 N.J. at 115-16; In re Z.L., 440 N.J. Super. 351, 358-
59 (App. Div.) (holding forfeiture proper where police officers
responded to five separate domestic disputes between defendant
and wife, even though no temporary or final restraining order
was ever issued), certif. denied, 223 N.J. 280 (2015); see also
In re Osworth, supra, 365 N.J. Super. at 78 (“The dismissal of
31
criminal charges does not prevent a court from considering the
underlying facts in deciding whether a person is entitled to
purchase a firearm.”).
IV.
The foregoing legal principles guide our determination of,
first, whether the correct standards were applied by the judge
here in denying the State’s motion for forfeiture of F.M.’s
weapon and identification card. We must then examine whether
the Family Part properly interpreted the scope of the “public
health, safety or welfare” disqualifier under N.J.S.A. 2C:58-
3(c)(5). At the same time, we must decide whether, even if the
correct standards were applied, the Family Part’s factual
findings were so wide of the mark as to constitute error. In
making this determination the Court must resolve whether to
apply the heightened deference afforded to the factual findings
of the Family Part when those courts address weapons forfeiture
matters related to domestic violence. State v. Wahl, 365 N.J.
Super. 356, 369 (2004) (deferring to fact-finding of Family Part
in weapons forfeiture matter because of court’s “special
jurisdiction and expertise in family matters”).
A.
The Domestic Violence Act vests jurisdiction in “the Family
Part of the Superior Court, Chancery Division” and mandates that
weapon forfeiture matters that are based on domestic violence be
32
pursued in the Family Part. N.J.S.A. 2C:25-21(d)(3). When a
forfeiture action is brought because of domestic violence, that
assessment necessarily involves an evaluation by the Family Part
judge of the parties’ relationship and their history of domestic
violence. Such evaluations are generally entitled to the
heightened deference afforded to the Family Part. See Cesare,
supra, 154 N.J. at 412-13.
However, the Family Part’s legal conclusions are not
entitled to deference. Gere, supra, 209 N.J. at 499. The judge
here, relying on the Second Amendment to the United States
Constitution, stated that forfeiture of F.M.’s weapon and
identification card required “more than just a showing that some
danger might exist.” While our law governing regulation of
handgun purchase and possession is circumscribed by the Second
Amendment to the United States Constitution, a limitation to the
right to bear arms is the “public health, safety or welfare”
disqualifier. N.J.S.A. 2C:58-3(c)(5). This disqualifier
requires a showing by a preponderance of the evidence that
possession of a firearm by the affected individual “would not be
in the interest of the public health, safety or welfare.”
Cordoma, supra, 372 N.J. Super. at 535; N.J.S.A. 2C:58-3(c)(5).
The Family Part here concluded that the State failed to
meet its burden of proving that possession of a firearm by F.M.
would not be “in the interest of the public health, safety or
33
welfare.” In reaching this conclusion, the court found that:
G.M. was not credible; the experts relied too heavily on G.M.’s
version of events; the experts had not diagnosed F.M. with a
disorder; and F.M. had never used a gun inappropriately. The
Family Part also found that the divorce had been finalized,
thereby reducing the occasion for conflict.
First, we note that the judge incorrectly stated the
applicable standard when he held that the State, to prevail on
its motion to forfeit F.M.’s weapon and identification card, was
required to prove “more than just a showing that some danger
might exist.” In fact, the State was required only to show by a
preponderance of the evidence that F.M.’s possession would not
be “in the interest of the public health, safety or welfare.”
Furthermore, the Family Part erred by interpreting N.J.S.A.
2C:58-3(c)(5) as requiring that F.M. suffer from a “disorder.”
As noted above, N.J.S.A. 2C:58-3(c)(5) is meant to address
“individual unfitness, where, though not dealt with in the
specific statutory enumerations, the issuance of the permit or
identification card would nonetheless be contrary to the public
interest.” In re Osworth, supra, 365 N.J. Super. at 79
(citation and quotation marks omitted). N.J.S.A. 2C:58-3(c)(5)
was not designed to disqualify only an individual who possesses
a diagnosable disorder. Such mental illnesses are addressed in
two separate provisions of the statute. See N.J.S.A. 2C:58-
34
3(c)(2) and (3). Thus, even though F.M. might not be
disqualified from possessing a firearm under N.J.S.A. 2C:58-
3(c)(2) or (3), he may nonetheless be disqualified under
N.J.S.A. 2C:58-3(c)(5) because of, for example, elements of
“narcissistic, anti-social, or paranoid personality disorder” as
explained by Dr. Schlosser in his FFD evaluation report.
B.
Having determined that the Family Part interpreted N.J.S.A.
2C:58-3(c)(5) too narrowly and incorrectly stated the applicable
standard, we turn to the court’s factual determinations. To
begin with, evidence not part of the Family Part record may not
be relied upon in making a factual determination. Here, the
Family Part judge acknowledged that he “ascertain[ed a] feel for
[this case],” in part, because he “had conversations and
consultations with colleagues” who were working on the divorce
proceeding or worked on the domestic violence complaint filed by
F.M. against G.M. Those considerations that were not part of
the hearing record should not have played any part in the
judge’s decision. Because matters outside of the hearing record
were considered and relied upon in reaching his conclusions, we
give no special deference to the Family Part judge’s factual
findings here.
Moreover, the judge’s failure to recognize that N.J.S.A.
2C:58-3(c)(5) does not require that an individual possess a
35
diagnosable disorder to be disqualified from possessing a gun is
particularly significant, because the unchallenged expert
testimony by Drs. Guller and Schlosser was that F.M. was not fit
to possess a firearm because he failed to disengage from “heated
situations,” avoided taking responsibility for his actions, and
had poor impulse and anger control. Nevertheless, the judge,
without assessing the credibility or contentions of F.M.,
rejected the experts’ opinions, reasoning that: (1) the experts
relied too heavily on G.M.; (2) their evaluations focused on
whether F.M. was fit for duty, as opposed to his general right to
possess a firearm; and (3) F.M.’s personality did not suggest
that F.M. had ever used a gun inappropriately.
Even though their evaluations were dedicated to whether
F.M. was fit to be a police officer, the determinations of Drs.
Guller and Schlosser necessarily involved considering whether
F.M. was fit to possess a weapon. Dr. Guller concluded that F.M.
was not fit for full duty and recommended that he be disarmed
because he was a “danger[] to himself or others.” Also, rearming
F.M. concerned Dr. Schlosser, in part, because F.M. had little
chance of recovery given the amount of therapy he had received
since 2007. Dr. Schlosser specifically opined that “in light of
the events in the record, [he] would have concern for [G.M.]
should [F.M.] have a private firearm.” Indeed, F.M.’s
psychological profile, as testified to by Drs. Guller and
36
Schlosser, suggested that F.M. could use a weapon inappropriately
and was not fit to possess a firearm.
The statute as written does not require the court to wait
for an individual to use a weapon inappropriately before ordering
forfeiture. Such a result would be contrary to the objective of
the Domestic Violence Act to provide the maximum amount of
protection to victims of domestic violence, and “the statutory
design . . . to prevent firearms from coming into the hands of
persons likely to pose a danger to the public.” Cunningham,
supra, 186 N.J. Super. at 511.
As a final point regarding the experts’ opinions, they were
not based solely on G.M.’s allegations of domestic violence.
Indeed, Dr. Schlosser interviewed G.M. only for the limited
purpose of verifying her account of the two incidents that
occurred after the March 2010 FFD evaluation. Additionally,
while Dr. Guller noted his apprehensions about the physical
nature of the restraints F.M. imposed on G.M. during the
incidents, and found G.M.’s account of the incidents involving
F.M. “generally credible,” her interview did not cause concerns
about “[F.M.’s] serious violent propensities” because G.M. cited
collateral issues about F.M. Each expert testified that G.M.’s
interview was but one piece in their evaluation. The
unmistakable conclusion is, therefore, that the experts did not
rely greatly on G.M.’s accounts. Rather, each expert testified
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that the totality of the circumstances, including their own
testing and individual assessments of F.M., as well as F.M.’s
account of the domestic violence incidents, were taken into
account.
Moreover, in pondering “the personality constellation of
the other parties” in “bitter divorce cases,” and finding that
“when certain people have certain personality styles the
resistible [sic] force meets the immoveable object,” the violent
incidents between F.M. and G.M. were relegated to mere
personality differences. The focus of the Family Part should
have been on whether F.M.’s subclinical impairments made him
unfit to possess a firearm, and whether such possession is
contrary to “the public health, safety or welfare,” N.J.S.A.
2C:58-3(c)(5). But, there was no discussion by the Family Part
judge of F.M.’s credibility, his role in these violent incidents,
or his mental state. Instead, the judge chose to focus on G.M.’s
conduct which, while relevant to determining whether acts of
domestic violence took place against her and important to give
context to the incidents, was not controlling of whether F.M. was
fit to possess a firearm.
As to the recollections of G.M., which did not weigh
heavily in the experts’ determinations and were dismissed by the
Family Part judge, there is no explanation of why the judge chose
to disregard G.M.’s account of the March 14 incident outside of
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the marital residence when Officer McDonnell was a witness to the
incident and largely corroborated G.M.’s testimony. Cf. In re
Z.L., supra, 440 N.J. Super. at 358-59 (upholding weapons
forfeiture proper where police officers responded to five
separate domestic disputes between defendant and wife, even
though no temporary or final restraining order was ever issued).
The Family Part instead found that the parties’ conflicts “did
not rise to the level of domestic violence,” relying upon the
Appellate Division’s discussion in its September 2011 decision
vacating an FRO granted to F.M. However, the Appellate Division
never made a finding that there was no domestic violence between
F.M. and G.M. Indeed, the panel only found that the evidence was
not sufficient to establish that G.M. was guilty of harassment in
August 2010.
As such, the Family Part’s conclusions are “manifestly
unsupported by the competent, relevant and reasonably credible
evidence” of record and, indeed, the substantial, credible
evidence in the record, including the unrefuted testimony and
reports of the State’s experts, Drs. Guller and Schlosser,
compels a contrary result in the “interests of justice.” Rova
Farms, supra, 65 N.J. at 484. Therefore, because an incorrect
legal standard was applied by the Family Part, its conclusions
were not supported by substantial, credible evidence in the
record, and because we find that the record establishes that the
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return of F.M.’s personal weapon and identification card is
inconsistent with N.J.S.A. 2C:58-3(c)(5), we exercise our
original jurisdiction to make the findings necessary to conclude
this matter, and hold that F.M.’s weapon and identification card
are forfeited.
V.
For the reasons set forth above, the judgment of the
Appellate Division is reversed, and the matter is remanded for
entry of an order forfeiting F.M.’s weapon and firearms
purchaser identification card.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
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