Divorce FAQ's
1. What happens if a police officer is charged with a D.V. charge?
There are many cases wherein numerous law enforcement officers are wrongfully charged with committing an act of domestic violence. Moreover, most of these victims of these frivolous charges have struggled long and hard to get their careers back on track long after the D.V. case was dismissed. When law enforcement officers are charged with committing acts of domestic violence, then it is extremely important that they obtain very competent legal counsel. To be very blunt if a law enforcement official is convicted of a D.V. charge then it could very well ruin his career. Additionally, if you are in the armed services, then a D.V. charge can also ruin your career. How can you possibly serve in the military if you can’t carry a weapon? Finally, correctional officers also must be vigilant not to get entangled with a D.V. charge. How can a correction’s officer run a prison if he can’t possess a firearm?
The Attorney General has established a set of directives that govern the procedures for the seizure of weapons from law enforcement officers who are involved in domestic violence incidents. The Attorney General governs all cases wherein a law enforcement official is charged with a D.V. offense. Thus, they enact their own regulations as to how to deal with a trooper, police officer, park ranger, who is charged with a D.V. offense. These regulations are called Attorney General Directives. These directives are revised every three or four years.
The Criminal Justice Act of 1970, N.J.S.A. 52:17-97 et. seq., requires the Attorney General “to provide for the general supervision of criminal justice” in this State. Thus, all law enforcement agencies and law enforcement officers in the State are required to cooperate with the Attorney General “to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the state.” N.J.S.A. 52:17-98. Accordingly, it is directed that all state law enforcement agencies and law enforcement officers who are employed by the State Department of Corrections, the Division of Criminal Justice, the Divisions of State Police, Human Services Police, Juvenile Justice Commission or the State Park Ranger Service and who are authorized to carry weapons pursuant to N.J.S.A. 2C:39-6 are to comply with the Attorney General regulations.
Essentially these directives require that a law enforcement officer who has been charged with a D.V. offense must immediately and voluntarily surrender his duty weapon to his employer or to the chief. It is important to emphasize that even the ultimate dismissal of the temporary restraining order and the D.V. complaint does not automatically result in the return of the officer’s weapon and his return to full and active duty. Instead, the County Prosecutor has enormous discretion to decide whether to authorize the return of the officer’s weapon.
These directives further mandate that when an officer is charged with an act of domestic violence, then his department is required to conduct an in depth investigation into his background and on the D.V. incident. Moreover, the department is also required to make a recommendation to the County Prosecutor’s Office as to whether he should be permitted to carry a weapon(s) and what, if any, conditions should be imposed upon the return of his duty weapon(s).
2. What are the basic provisions of the Attorney General Directives with regard to D.V. charges that are filed against a law enforcement official?
Whenever an act of domestic violence has been alleged to have been committed by a law enforcement officer then all weapons, personal and department issued, that is possessed by that officer shall immediately be;
a. Seized by the law enforcement officer responding to the domestic violence call if the responding officer reasonably believes that the presence of weapons would expose the victim to a risk of serious bodily injury; or
b. Surrendered by the officer involved when served with a domestic violence restraining order, search warrant or bail condition which requires the surrender of weapons.
3. Does a police officer have a legal requirement to report any D.V. charges that have been filed against him to the chief?
Yes, whenever an act of domestic violence has been alleged to have been committed by a law enforcement officer that results in the seizure of the officer’s weapons, then that officer must:
a. Immediately report that fact to the state officer’s departmental supervisor who must promptly notify the Prosecutor’s Office in the county where the officer is employed and also notify the Division of Criminal Justice, the County Prosecutor and Police Bureau.
b. Voluntarily surrender all weapons to the law enforcement officer responding to the domestic violence call or in response to a requirement in a domestic violence restraining order or a domestic violence warrant for the seizure of weapons or in a bail condition.
Additionally, if there were weapons seized from a law enforcement officer, then a report shall immediately be made to the arresting officer’s departmental supervisor. Therefore, they must notify the Division of Criminal Justice, and the County Prosecutor and the Police Bureau.
4. What happens to the police officer’s weapon if he is charged with a D.V. offense?
Any department-issued weapon, which is seized or surrendered in connection with a domestic violence incident, is to be returned to the custody and control of the department which issued that weapon. All other weapons owned, possessed, or controlled by the officer, which are seized or surrendered, are to be promptly forwarded to the County Prosecutor’s Office. Therefore, the status of the weapon is administrated in accordance with the procedures set forth in the Attorney General’s Guidelines on Police Response Procedures in Domestic Violence Cases and the County Prosecutor’s Procedures for the seizure and transportation of firearms to the Prosecutor’s Office in accordance with the provisions of N.J.S.A. 2C:25‑21(d).
Meanwhile, if the weapons(s) have been seized pursuant to a court order or domestic violence search warrant then the Division of Criminal Justice, then the County Prosecutor and the Police Bureau will conduct an immediate investigation of the incident. This investigation will determine whether the officer should be permitted to carry a weapon and under what conditions. Moreover, this investigation should make any be recommendations to the court as to whether the weapon should be returned to the law enforcement officer pending the final outcome of the domestic violence proceedings. The Division of Criminal Justice and the Police Bureau is also required to promptly forward its report and recommendations to the County Prosecutor.
5. I am an East Brunswick Police officer, and I was recently charged with a D.V. offense against my wife. Can I still continue my police duties while my D.V. case is pending?
This decision is made on a case by case basis. In some cases, an officer is allowed to continue his duties subject to turning in the duty firearm at the end of the work shift. Morever, it is also common for an officer to be reassigned to desk duty. However, in some cases, the employer may simply prohibit the officer from returning to work until clearance is obtained by the County Prosecutor. Thus, the officer is placed in a “no pay” status, or he must use his accumulated leave time.
6. Will my police department conduct any investigation on my case and background if I am charged with a D.V. offense?
Yes, the chief of the law enforcement agency where the officer is employed is required to conduct an in depth investigation into the officer’s background. After this investigation is completed, then the chief is required to make a recommendation to the Division of Criminal Justice, the County Prosecutor and the Police Bureau. Thereafter, these departments will determine whether the officer should be permitted to once again carry a weapon(s). Moreover, this recommendation must also include what conditions, if any, should be imposed for the return of the weapon(s). Finally, this report must also take into consideration any existing D.V. orders that have been entered against the officer. The chief is also required if necessary to reassign the officer charged with committing an act of domestic violence so that the officer will not have contact with the D.V. complainant.
The Division of Criminal Justice, the County Prosecutor and the Police Bureau or designees are encouraged to confer with the domestic violence complainant regarding the complainant’s position on the return of weapons. However, the recommendation or determination whether the weapons should be returned rests with the Division of Criminal Justice, the County Prosecutor and the Police Bureau, and not with the victim or the law enforcement agency where the officer is employed.
7. Will I ever get my weapons returned to me if I am acquitted of the D.V. charge?
Pursuant to the Attorney General Directives the eventual dismissal of a temporary restraining order and a domestic violence complaint does not automatically end the officer’s nightmare. Instead, the officer is often required to submit to a psychological evaluation that is conducted by a psychologist of his employer’s choice before any recommendation is made to the County Prosecutor as to the return of his weapon(s). In many cases, the psychologist will impose certain conditions before recommending a return of the officer’s firearm. These conditions include therapy and counseling. The ultimate decision to return an officer’s duty weapon, even after the dismissal of the D.V. charge, rests with the County Prosecutor.
It is very advisable for an officer to obtain an independent evaluation from another licensed psychiatrist or psychologist which clearly and unconditionally declares him fit for return to full and active duty. If this report is ignored by the officer’s department and by the County Prosecutor, then the officer can file a complaint in the Superior Court that requests his reinstatement to full and active duty.
If it is determined by the Division of Criminal Justice, the County Prosecutor and the Police Bureau that the state law enforcement officer may carry weapons in accordance with that officer’s duty assignments while the domestic violence proceedings, are pending court action, then they may recommend to the appropriate court that:
a. The officer be permitted to carry a department-issued handgun during on duty hours (duty hours means an officer’s daily active duty shift) but not carry a handgun off duty.
b. The officer be directed not to enter his or her residence which is shared with the complainant while on duty and armed, or meet with the complainant or any other person covered by the restraining order, while armed.
c. The department owned weapons are to be issued by the department to the officer at the beginning of the officer’s daily active duty shift and the weapons are to be returned to the custody of the department at the end of the officer’s daily active duty shift.
d. When a weapon has been seized from a state law enforcement officer involved in a domestic violence offense but no criminal charges, court order or warrant has been issued or is pending regarding possession of weapons, Division of Criminal Justice, the County Prosecutor and Police Bureau may authorize the return of the seized weapons subject to conditions, if any, the Division of Criminal Justice, Prosecutors and Police Bureau determines necessary.
8. If I am convicted on a D.V. charge what type of restrictions can be placed on the return of my firearm?
Pursuant to the provisions of the federal crime bill, 18 U.S.C.A. 922(g), if a final D.V. restraining order is issued, then a law enforcement officer may be authorized by a court to possess a department-issued firearm but only under conditions that are recommended by County Prosecutor. However, under no circumstances may the officer possess any personally owned firearms. Therefore, the officer’s hunting career may be over for good!
9. What are some current and interesting cases that concern law enforcement officers and DV charges?
An interesting case is Frazier v. Northern State Prison, Dept. of Corrections, 392 N.J. Super. 514 (App. Div. 2007). The issue in this case is whether a simple assault under N.J.S.A.. 2C:12-1a(3) constitutes a misdemeanor crime of domestic violence, thus barring possession of a firearm under the Lautenberg Amendment to the federal Gun Control Act? The court held that Administrative Law Judge (ALJ) and the Merit System Board erred in concluding that appellant, a senior corrections officer, was prohibited from carrying a firearm under the Lautenberg Amendment following his conviction for simple assault. According to 27 C. F.R. § 478.11, a “misdemeanor crime of domestic violence is defined as an offense which: (1) s a misdemeanor, including offenses that are punishable only by a fine; (2) has, as an element used or attempted use of physical force or the threatened use of a deadly weapon; and (3) was committed by a person similarly situated to a spouse, parent, or guardian of the victim.
The Appellate Division further held that the decision of the ALJ and the Merit System Board faltered upon examination of the second criterion of the misdemeanor of domestic violence definition. Specifically, appellant had to have been convicted of an offense that had, as an element, the use or the use of physical force, or the threatened use of a deadly weapon. Under N.J.S.A. 2C:12-1a(3), a person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury. This type of assault may be committed without the actual or attempted use of physical force. Therefore, the appellant’s simple assault conviction did not meet the second criterion as established by administrative regulation for identification of a misdemeanor crime of domestic violence.