State of New Jersey in the Interest of C.L.H.'s Weapons , 443 N.J. Super. 48 ( 2015 )


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  •                    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0072-14T2
    APPROVED FOR PUBLICATION
    STATE OF NEW JERSEY IN THE                November 18, 2015
    INTEREST OF C.L.H.'S WEAPONS              APPELLATE DIVISION
    ____________________________
    Submitted September 16, 2015 – Decided November 18, 2015
    Before Judges Sabatino, Accurso and
    O'Connor.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Cumberland
    County, Docket No. FO-06-254-13.
    Jennifer Webb-McRae, Cumberland County
    Prosecutor, attorney for appellant State of
    New Jersey (Jason H. Chessman, Assistant
    Prosecutor, of counsel and on the brief).
    Evan F. Nappen, attorney for respondent
    C.L.H. (Jeffrey A. Skiendziul, on the
    brief).
    The opinion of the court was delivered by
    ACCURSO, J.A.D.
    The State appeals from a final order of the Family Part
    denying its motion to have C.L.H. forfeit five illegal assault
    firearms, seventy-one other firearms and his firearms purchaser
    identification card seized pursuant to the Prevention of
    Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.
    Because we conclude the court erred in determining the 2013 gun
    amnesty law, L. 2013, c. 117, applied here and section 3c(8) of
    the Gun Control Law, N.J.S.A. 2C:58-3c(8), did not, we reverse.
    Based on the parties' stipulations and the testimony at the
    forfeiture hearing, the judge found that a temporary restraining
    order (TRO) had been entered against C.L.H.'s wife in April 2013
    arising out of a domestic violence complaint brought by her
    eighty-one-year-old father.    Because the victim noted the
    existence of two to five long guns and a .22 caliber revolver
    located in the house and shed at his daughter's home, the TRO
    included a warrant directing law enforcement to search for and
    seize those weapons.    Although C.L.H. had nothing whatsoever to
    do with the incident or the TRO, because he lived with his wife
    at the address specified in the warrant, Cumberland County
    sheriff's officers were authorized to enter their marital
    residence with the warrant and seize weapons belonging to C.L.H.
    for safekeeping pursuant to the Prevention of Domestic Violence
    Act.   See N.J.S.A. 2C:25-28j; State v. Harris, 
    211 N.J. 566
    , 580
    (2012).
    C.L.H. cooperated with the officers executing the warrant,
    advising that there were weapons in the home in locked gun
    safes.    The sheriff's officers removed four bows, one machete,
    four handguns and seventy-two long guns from C.L.H. and his
    wife's home.    C.L.H. also voluntarily turned over his firearms
    2                            A-0072-14T2
    purchaser identification card.1   The officers did not find
    magazines for any of the guns.
    The Cumberland County Prosecutor's Office sent eight of the
    guns seized to the State Police for testing and filed a timely
    petition for forfeiture in May.       A detective in the ballistics
    unit testified that five of those guns, all of which were
    operable, qualified as assault firearms under N.J.S.A. 2C:39-
    1w(1), (2) or (4), as an enumerated weapon, one substantially
    1
    It would not appear that the officers could have lawfully
    seized C.L.H.'s firearms purchaser identification card, as
    opposed to his weapons, under the domestic violence warrant as
    C.L.H. was not the defendant in the domestic violence complaint.
    See N.J.S.A. 2C:25-28j, which provides in pertinent part:
    Emergency relief may include forbidding the
    defendant from returning to the scene of the
    domestic violence, forbidding the defendant
    from possessing any firearm or other weapon
    enumerated in subsection r. of N.J.S. 2C:39-
    1, ordering the search for and seizure of
    any such weapon at any location where the
    judge has reasonable cause to believe the
    weapon is located and the seizure of any
    firearms purchaser identification card or
    permit to purchase a handgun issued to the
    defendant and any other appropriate relief.
    [(Emphasis added).]
    This distinction is reflected in the phrasing of the warrant
    included in the standard New Jersey Domestic Violence Court
    Order. Domestic Violence Procedures Manual (Oct. 9, 2008),
    http://www.judiciary.state.nj.us/family/dvprcman.pdf. It is
    also consistent with another portion of the statute governing
    the conduct of police officers responding to a scene of domestic
    violence. See N.J.S.A. 2C:25-21d(1)(b).
    3                           A-0072-14T2
    identical to an enumerated weapon or a semi-automatic rifle with
    a fixed magazine capacity exceeding fifteen rounds.
    The court accepted the detective's testimony as credible in
    all respects, and found the five guns are assault firearms,
    illegal to own or possess under New Jersey law.   Although C.L.H.
    testified that he did not have paperwork for any of the five
    assault firearms due to a "vindictive ex-wife" who destroyed his
    records "about" fifteen years ago, the detective testified that
    one of the enumerated weapons,2 the A[vtomat] K[alashnikov]-47
    type semi-automatic firearm, was imported in 2003.    The court
    noted that the import date for that weapon, eleven years prior
    to the forfeiture hearing, "would be less than 15 years ago."
    Based on the parties' stipulations, the judge found that
    C.L.H. had no criminal history and no juvenile record.   He was
    not a defendant in the domestic violence proceeding, which was
    later voluntarily dismissed in any event.   The prosecutor did
    2
    The other enumerated weapons were an Uzi type semi-automatic
    firearm and an FN-FAL type semi-automatic firearm. The
    detective testified he found C.L.H.'s .223 caliber Bushmaster
    semi-automatic carbine substantially identical to the Bushmaster
    Assault Rifle under N.J.S.A. 2C:39-1w(2), because it had a flash
    suppressor, a bayonet lug, a pistol grip and a telescoping
    stock. The remaining weapon, the Winchester .22 long rifle
    caliber, semi-automatic carbine, the detective deemed an assault
    firearm under N.J.S.A. 2C:39-1w(4), because it had a fixed
    tubular magazine on the underside of the barrel with a capacity
    of fifteen plus one rounds.
    4                          A-0072-14T2
    not file any charges arising out of the domestic violence
    incident, or file charges against C.L.H. arising from his
    illegal possession of the five assault firearms.    The State
    stipulated that it was not aware of any drug or alcohol problems
    C.L.H. might have suffered or any record of involuntary
    commitments.
    The parties stipulated that C.L.H. had been a life-long
    collector of the types of guns seized from his home.   They also
    stipulated that the Cumberland County Prosecutor's Office and
    the Cumberland County Sheriff's Office conducted eleven separate
    "Gun Buy Backs" from June 1997 through June 2010.    The court
    noted that "[a]ssuming that C.L.H. possessed the five . . .
    illegal weapons during any of the times listed, he could have
    turned in the weapons at any one of the 'buy backs,' perhaps for
    money and with 'no questions asked.'"
    Finally, the parties stipulated that C.L.H.'s counsel sent
    a letter to the assistant prosecutor in December 2013 stating
    that C.L.H. "hereby transfers to a license[d] firearms dealer
    (whose name will be provided at a future date) . . . under P.L.
    2013, Ch.117/A.3796, effective August 8, 2013," the five assault
    firearms seized by the sheriff's officers in April 2013, citing
    5                            A-0072-14T2
    N.J.S.A. 2C:25-21d(3)(b).3   That subsection of the statute allows
    an owner whose firearms are not to be returned following the
    hearing required under N.J.S.A. 2C:25-21d(3) to arrange for
    their sale to a registered dealer within sixty days of the order
    of forfeiture in order to avoid the weapons being disposed of by
    the prosecutor.
    The court found on the basis of the stipulations, C.L.H.'s
    testimony and that of two friends who testified on his behalf
    that there was "simply no basis to find that C.L.H. is a danger
    to the community's health, safety, welfare or any other way."
    Although not saying so directly, the court impliedly rejected
    the prosecutor's contention that C.L.H. should be disqualified
    under N.J.S.A. 2C:58-3c(5) (disqualification in the interest of
    the public health, safety or welfare), based on his knowing
    possession of an assault firearm in disregard of the State's gun
    ownership laws.
    The court also rejected the prosecutor's contention that
    because C.L.H.'s weapons were seized pursuant to the Prevention
    of Domestic Violence Act, and cannot be returned because they
    are illegal firearms under N.J.S.A. 2C:39-1w, the Domestic
    3
    Counsel's letter referred to N.J.S.A. 2C:25-21d(3)(a) which
    refers to weapons other than firearms and is thus inapplicable.
    We assume he meant to refer to subsection d(3)(b) of the
    statute.
    6                        A-0072-14T2
    Violence Forfeiture Statute, N.J.S.A. 2C:25-21d(3), disqualified
    C.L.H. from obtaining a firearms purchaser identification card
    under N.J.S.A. 2C:58-3c(8), or legally possessing the remaining
    seventy-one firearms seized from his and his wife's home.
    Acknowledging that "[a] strict interpretation of the law" would
    lead to precisely that result, the court deemed it "not
    equitable" here.
    The court instead allowed C.L.H. to take advantage of the
    2013 gun amnesty law based on his counsel's letter to the
    assistant prosecutor sent during the 180 days of the amnesty
    law's operation.   The court rejected the prosecutor's argument
    that the amnesty law did not apply because the assault firearms
    were not in C.L.H.'s possession as of the law's August 8, 2013
    effective date, having been seized from his and his wife's home
    by Cumberland County sheriff's officers some four months
    earlier.   Reasoning that N.J.S.A. 2C:58-3c(8)'s bar must "be due
    to some fault of the person whose guns were seized," see M.S. v.
    Millburn Police Dep't, 
    197 N.J. 236
    , 251 (2008), the court found
    "there is no 'fault' or other inappropriate, unlawful or bad
    behavior of C.L.H., the guns were seized solely because of a
    restraining order issued against a person he resided with, his
    wife."
    7                           A-0072-14T2
    The court noted that "C.L.H. could have surrendered those
    guns but for the fact that they were held by the Cumberland
    County Prosecutor's [O]ffice due to no reason other than the
    fortuitous circumstance of misfortunes that occurred to C.L.H.'s
    wife."   The court concluded that "to hold under these
    circumstances that the guns in question were not in C.L.H.'s
    possession so that he could not take advantage of the August 8,
    2013 [gun amnesty] law allowing for a voluntary surrender of the
    same is simply not equitable."    The court granted the State's
    application for stay pending appeal.
    The State argues on appeal that the 2013 gun amnesty law
    does not apply here, and because C.L.H.'s weapons were not
    returned for a reason set forth in the Domestic Violence
    Forfeiture Statute, N.J.S.A. 2C:25-21d(3), the weapons and
    C.L.H.'s firearms purchaser identification card cannot be
    returned to him under N.J.S.A. 2C:58-3c(8).       We agree.
    We begin our analysis by noting we have no quarrel with the
    trial judge's factual findings.       The findings are supported by
    substantial credible evidence in the record, and we do not
    disturb them.   See In re Return of Weapons to J.W.D., 
    149 N.J. 108
    , 116 (1997) ("an appellate court should accept a trial
    court's findings of fact that are supported by substantial
    credible evidence").   Our disagreement is with the court's legal
    8                           A-0072-14T2
    conclusions, to which we owe no deference under our plenary
    standard of review.   Manalapan Realty, L.P. v. Twp. Comm. of
    Manalapan, 
    140 N.J. 366
    , 378 (1995) ("A trial court's
    interpretation of the law and the legal consequences that flow
    from established facts are not entitled to any special
    deference.").
    The 2013 gun amnesty law provides in pertinent part that:
    [a]ny person who has in his possession an
    assault firearm on the effective date of
    this act may retain possession of that
    firearm for a period of not more than 180
    days after the effective date. During that
    time period, the possessor of the assault
    firearm shall:
    (1)   transfer the assault firearm to
    any person lawfully entitled to own or
    possess such firearm;
    (2)   render the assault firearm
    inoperable; or
    (3)   voluntarily surrender the assault
    firearm pursuant to the provisions of
    N.J.S.A. 2C:39-12.
    [L. 2013, c. 117, § 2a.]
    We cannot find under any construction of this statute that the
    assault firearms seized from C.L.H. and his wife's home in April
    2013 and made the subject of a timely forfeiture petition by the
    prosecutor in May, were "in his possession" as of the August 8,
    2013 effective date of the law.       See DiProspero v. Penn, 
    183 N.J. 477
    , 492 (2005) (explaining it is not the function of
    9                           A-0072-14T2
    courts "to 'rewrite a plainly-written enactment of the
    Legislature []or presume that the Legislature intended something
    other than that expressed by way of the plain language'")
    (quoting O'Connell v. State, 
    171 N.J. 484
    , 488 (2002)).      On that
    date, the weapons were in possession of the prosecutor for
    safekeeping where they remained through expiration of the
    amnesty law on February 5, 2014.
    Our plain reading of the amnesty statute's meaning is
    buttressed by the Legislature's requirement that any voluntary
    surrender under the amnesty law comply with the provisions of
    N.J.S.A. 2C:39-12.   See 
    DiProspero, supra
    , 183 N.J. at 492
    (directing that statutory words and phrases be read "in context
    with related provisions so as to give sense to the legislation
    as a whole").   That separate enactment allows a person to
    voluntarily surrender firearms to law enforcement without
    criminal liability "provided that the required [written] notice
    is received by [law enforcement] before any charges have been
    made or complaints filed against such person for the unlawful
    possession of the weapon . . . and before any investigation has
    been commenced by any law enforcement agency concerning the
    unlawful possession."   N.J.S.A. 2C:39-12.
    The purpose of the limitation is obvious; it is to prevent
    a person from escaping liability for possession of a weapon by
    10                           A-0072-14T2
    trying to "voluntarily surrender" it to the authorities after it
    has already been seized or otherwise come to the attention of
    law enforcement.     Without it, N.J.S.A. 2C:39-12, and the 2013
    gun amnesty law, would be transformed from devices to encourage
    the surrender of firearms to a "free pass" for those the police
    have already found or suspect to be in illegal possession, a
    result plainly not intended by the Legislature.     As C.L.H.'s
    counsel's notice to the prosecutor was well after the filing of
    the complaint for forfeiture, C.L.H. was not entitled to
    "voluntarily surrender" his assault firearms under the express
    terms of the gun amnesty law and N.J.S.A. 2C:39-12, even were he
    somehow deemed to be still in possession of the weapons after
    they had been confiscated from his and his wife's home.
    Having concluded that the 2013 amnesty law cannot be
    applied to the circumstances here, we must consider whether the
    trial court could have properly returned the assault weapons to
    C.L.H., notwithstanding.    We think the clear answer to that
    question is no.
    The trial court found that five of the weapons seized from
    C.L.H. and his wife's home under the Prevention of Domestic
    Violence Act were assault firearms as defined by N.J.S.A. 2C:39-
    1w(1), (2) or (4).    C.L.H. has not challenged that finding on
    appeal, and because it is supported by substantial credible
    11                        A-0072-14T2
    evidence in the record, we do not disturb it.    See 
    J.W.D., supra
    , 149 N.J. at 116.    Those weapons are contraband and can
    never lawfully be returned to C.L.H.    N.J.S.A. 2C:39-1w; :39-5f;
    :64-1a(1).   Because the five assault firearms were seized
    pursuant to the Prevention of Domestic Violence Act and cannot
    be returned to C.L.H. under the Domestic Violence Forfeiture
    Statute, N.J.S.A. 2C:25-21d(3), he is expressly disqualified
    from obtaining a handgun purchase permit or firearms purchaser
    identification card under the Gun Control Law, N.J.S.A. 2C:58-
    3c(8), and thus from regaining possession of his seventy-one
    other firearms and his firearms purchaser identification card
    held by the prosecutor.
    To the extent the trial judge determined forfeiture to be
    "not equitable," because C.L.H. was not a defendant in the
    domestic violence complaint, we think he erred.     The law is well
    settled that the Family Part has the authority to order a weapon
    forfeiture following the dismissal of a domestic violence
    complaint regardless of whether the dismissal was voluntary or
    for lack of evidence.     See 
    J.W.D., supra
    , 149 N.J. at 116; State
    v. Cordoma, 
    372 N.J. Super. 524
    , 533-34 (App. Div. 2004); State
    v. One Marlin Rifle, 
    319 N.J. Super. 359
    , 371 (App. Div. 1999);
    State v. Freysinger, 
    311 N.J. Super. 509
    , 514-15 (App. Div.
    1998); State v. Volpini, 
    291 N.J. Super. 401
    , 412-13 (App. Div.
    12                         A-0072-14T2
    1996).    As the Domestic Violence Forfeiture Statute applies to
    defendants against whom no domestic violence was ever proved, we
    see no logical reason to limit its scope to only those accused.
    In addition to allowing the issuance of a warrant for the
    search and seizure of "any firearm" and the seizure of any
    firearms purchaser identification card or purchase permit
    "issued to the defendant," N.J.S.A. 2C:25-28j, the Act provides
    that "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:25-21d(1)(b) (emphasis added).]
    We must assume the distinction between seizing "any
    firearm" without restriction as to ownership and seizing only
    those firearms cards "issued to the person accused of the act of
    domestic violence" was intentional.4   A domestic violence
    4
    The language regarding the seizure of a defendant's firearms
    card and permit to purchase a handgun was added in the 2003
    (continued)
    13                          A-0072-14T2
    defendant, as here, could well have access to firearms, not her
    own, that would expose a victim to the risk of serious injury,
    thus necessitating their temporary seizure for safekeeping.
    Although it would be unreasonable to seize a domestic violence
    defendant's firearms for safekeeping but not the documents to
    allow her to purchase additional weapons, see In re Seized
    Firearms Identification Card of Hand, 
    304 N.J. Super. 360
    , 370
    (Ch. Div. 1997), the same is not true for a firearms card
    belonging to one whose only threat to the victim is posed by the
    ready accessibility of his weapons to the defendant.
    Accordingly, it seems plain that the Legislature intended
    that weapons, but not firearms cards, could be temporarily
    seized under the Prevention of Domestic Violence Act from
    persons who are not defendants in domestic violence complaints.
    See supra, note 1.   Of course, regardless of whether seized from
    a defendant or some other person, all weapons and any firearms
    (continued)
    amendment, L. 2003, c. 277. The legislative history does not
    offer an explanation for differentiating between the seizure of
    weapons reasonably believed to pose a threat to the victim,
    regardless of ownership, and the seizure of a firearms card
    belonging to defendant only. We note, however, that N.J.S.A.
    2C:25-21d(3), which governs return of any weapons seized, has
    since enactment referred to "the owner" and not "the defendant."
    We take from this that the Legislature has never intended to
    limit the seizure of firearms under the Act to only those owned
    by the defendant, but anticipated that some weapons that would
    pose a threat to the victim by being accessible to the defendant
    could be owned by others not accused of domestic violence.
    14                          A-0072-14T2
    cards seized under the Act must be returned to the owner within
    forty-five days unless the prosecutor, within that period,
    petitions a judge of the Family Part to obtain title to the
    weapons or to revoke any permits for their possession on notice
    to the owner.    N.J.S.A. 2C:25-21d(3).    If such a person is
    determined to be disqualified from regaining possession of his
    weapon under the Domestic Violence Forfeiture Statute, then that
    person is permanently barred from obtaining a firearms card, see
    
    Millburn, supra
    , 197 N.J. at 246, notwithstanding that he was
    not a perpetrator of domestic violence or a defendant in the
    underlying domestic violence action.
    By focusing on C.L.H.'s lack of culpability in the
    circumstances leading to the seizure of his firearms from his
    and his wife's home under the Prevention of Domestic Violence
    Act, a fact not critical to the outcome of the forfeiture
    hearing, the court lost sight of the fact that was critical –
    that C.L.H. was in possession of five fully-functioning assault
    rifles.   The knowing possession of an unlicensed, operable
    assault firearm is a crime of the second degree.      N.J.S.A.
    2C:39-5f.     Possession of assault firearms, except under limited
    circumstances not present here, has been illegal in this State
    since 1990.    N.J.S.A. 2C:58-12.    As the trial court noted, at
    least one of the assault firearms in C.L.H.'s possession was not
    15                       A-0072-14T2
    imported until 2003, well after the assault weapon ban went into
    effect.   Further, as the testimony also made clear, C.L.H. was
    knowledgeable and selective about the firearms in his
    collection.   As there is no question on this record but that
    C.L.H. was in knowing possession of five illegal assault
    weapons, that those weapons could not be returned under the
    Domestic Violence Forfeiture Statute was certainly "due to some
    fault" of C.L.H.   
    Millburn, supra
    , 197 N.J. at 251.
    Because the Domestic Violence Forfeiture Statute expressly
    allows the prosecutor to petition "to obtain title to the seized
    weapons, or to revoke any and all permits . . . for the use,
    possession, or ownership of such weapons pursuant to the law
    governing such use, possession, or ownership," N.J.S.A. 2C:25-
    21d(3), and the five illegal assault firearms seized from
    C.L.H.'s and his wife's home are prima facie contraband in which
    no property right exists and which are subject to forfeiture
    under N.J.S.A. 2C:64-1a(1), the court erred in concluding that
    the forfeiture of those illegal assault firearms was not
    mandated on the facts it found.    We agree with the holding of
    State v. 6 Shot Colt .357, 
    365 N.J. Super. 411
    , 417 (Ch. Div.
    2003), that the knowing possession of an assault firearm
    contrary to this State's gun control laws is sufficient basis
    for forfeiture under N.J.S.A. 2C:25-21d, without the need to
    16                        A-0072-14T2
    find that C.L.H. is unfit or a danger to the public under
    N.J.S.A. 2C:58-3c(5).5    Accord In re Osworth, 
    365 N.J. Super. 72
    ,
    81 (App. Div. 2003) ("[I]t does not serve public safety to issue
    a handgun purchase permit to someone who has demonstrated his
    willingness to disregard the gun laws of this State."), certif.
    denied, 
    179 N.J. 310
    (2004).
    Because the five assault firearms were lawfully seized from
    C.L.H. and his wife's home pursuant to the Prevention of
    Domestic Violence Act and cannot be returned to C.L.H. under the
    Domestic Violence Forfeiture Statute as they are contraband
    under N.J.S.A. 2C:64-1a(1), C.L.H. is expressly disqualified
    from obtaining a handgun purchase permit or firearms purchaser
    identification card under the Gun Control Law, N.J.S.A. 2C:58-
    3c(8), and thus from regaining possession of his seventy-one
    other firearms and his firearms purchaser identification card
    held by the prosecutor.
    Accordingly, we reverse and remand for the entry of an
    order revoking C.L.H.'s firearms purchaser identification card
    and directing that the five assault weapons be forfeited to the
    prosecutor for destruction in accord with N.J.S.A. 2C:25-
    5
    Although not relevant given our disposition of the appeal, we
    note that we have elsewhere addressed and rejected the arguments
    C.L.H. makes that the public health and safety exception of
    N.J.S.A. 2C:58-3c(5) is unconstitutionally vague, see In re
    Dubov, 
    410 N.J. Super. 190
    , 196-97 (App. Div. 2009).
    17                         A-0072-14T2
    21d(3)(c) and 2C:64-6a, with the remaining weapons to be
    disposed of by the prosecutor only if C.L.H. does not arrange
    for their lawful sale in accordance with N.J.S.A. 2C:25-
    21d(3)(b).
    Reversed and remanded for the entry of an order consistent
    with this opinion.   We do not retain jurisdiction.
    18                         A-0072-14T2