The Volokh Conspiracy - Barred from All Possession of Firearms With No Finding of Misconduct:

That's what happened in New Jersey to M.S. M.S. and his wife accused each other in 1997 of domestic violence, and eventually agreed to the entry of civil restraining orders against each other. Pursuant to New Jersey law, the state seized M.S.'s five handguns, and started forfeiture proceedings. Though the criminal complaints against M.S. stemming from his wife's charges were dismissed, the plaintiff and the prosecutor agreed to settle the forfeiture complaint by "allowing plaintiff 'the opportunity to sell' the five handguns 'to a registered dealer of firearms.'"

There was never any finding, by a criminal court or by the family court, of any misconduct on M.S.'s part, nor any admission by M.S. of such misconduct for purposes of the settlement. In fact, for whatever it's worth, the family court awarded M.S. custody of the couple's five children, and eventually dissolved all the restraining orders.

But now M.S. has a problem: In 2004, New Jersey enacted a statute, N.J. Stats. § 2C:58-3(c)(8), that outlaw the transfer of guns "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991' and whose firearm has not been returned." M.S. would like the right to get a gun, but his firearm was indeed seized because of his ex-wife's complaint (which didn't lead to any criminal or civil finding of guilt on M.S.'s part), and the firearm was indeed never returned — M.S. settled the forfeiture proceeding, with no admission of guilt, by arranging for the guns to be sold.

The state's view was indeed that M.S. is now barred from all possession of firearms, notwithstanding the absence of any finding of misconduct on his part. And a New Jersey appellate court agreed with the state.

I can report, though, that last week the New Jersey Supreme Court reversed the appellate court's decision, and held that § 2C:58-3(c)(8) applies only when "the bar to the issuance of a firearms card be due to some fault of plaintiff," such as a finding that the plaintiff had indeed done something bad. Here are the key passages:

Although our starting point is to "ascribe to the statutory words their ordinary meaning and significance," we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature. For example, if N.J.S.A. 2C:58-3(c)(8) were to be read literally, a firearm seized as a result of a domestic violence complaint and not "returned" merely because the firearm was lost or misplaced by the police, or stolen while in police custody, would trigger the bar to the future issuance of a handgun purchase permit or firearms card....

Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded. A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)'s bar to the issuance of a firearms card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff's firearms "not been returned" because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was "probable cause to indict," or because the "domestic violence situation" continued after the issuance of the mutual restraining orders, then the conditions of N.J.S.A. 2C:58-3(c)(8) would have been met....

Only when a person's firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and "has not been returned" for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), is that person permanently barred from obtaining a firearms card. That is the only sensible interpretation of N.J.S.A. 2C:58-3(c)(8) and the only interpretation that is fully consistent with what the Legislature must have intended. Therefore, under N.J.S.A. 2C:58-3(c)(8), the reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3) or by an admission made by a plaintiff in a consent judgment.

One can debate whether the result is correct as a matter of statutory interpretation, but it struck me as noteworthy in any case. Moreover, it seems to me that the Second Amendment — if incorporated against the states — would indeed require a rule that's at least this protective of gun owners; and that legislatures should in any event not enact laws such as the one at issue here, which on their face seem to disarm people without any finding of misconduct, dangerousness, or incompetence.

It's too bad that M.S. had to go through years of litigation to be entitled to own a gun, something that other adult, mentally competent Americans are and should be free to do, at least until they are found to have done something that may justify loss of that right. I leave aside what sort of showing should be required for such a loss of a right (except to say that surely some showing would suffice, for instance when someone is convicted of a crime that sends him to prison, where presumably he would not be allowed to possess a gun). Whatever the threshold, it wasn't met here.

	[Eugene Volokh, December 29, 2008 at 1:23am] Trackbacks Barred from All Possession of Firearms With No Finding of Misconduct: That's what happened in New Jersey to M.S. M.S. and his wife accused each other in 1997 of domestic violence, and eventually agreed to the entry of civil restraining orders against each other. Pursuant to New Jersey law, the state seized M.S.'s five handguns, and started forfeiture proceedings. Though the criminal complaints against M.S. stemming from his wife's charges were dismissed, the plaintiff and the prosecutor agreed to settle the forfeiture complaint by "allowing plaintiff 'the opportunity to sell' the five handguns 'to a registered dealer of firearms.'" There was never any finding, by a criminal court or by the family court, of any misconduct on M.S.'s part, nor any admission by M.S. of such misconduct for purposes of the settlement. In fact, for whatever it's worth, the family court awarded M.S. custody of the couple's five children, and eventually dissolved all the restraining orders. But now M.S. has a problem: In 2004, New Jersey enacted a statute, N.J. Stats. § 2C:58-3(c)(8), that outlaw the transfer of guns "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991' and whose firearm has not been returned." M.S. would like the right to get a gun, but his firearm was indeed seized because of his ex-wife's complaint (which didn't lead to any criminal or civil finding of guilt on M.S.'s part), and the firearm was indeed never returned — M.S. settled the forfeiture proceeding, with no admission of guilt, by arranging for the guns to be sold. The state's view was indeed that M.S. is now barred from all possession of firearms, notwithstanding the absence of any finding of misconduct on his part. And a New Jersey appellate court agreed with the state. I can report, though, that last week the New Jersey Supreme Court reversed the appellate court's decision, and held that § 2C:58-3(c)(8) applies only when "the bar to the issuance of a firearms card be due to some fault of plaintiff," such as a finding that the plaintiff had indeed done something bad. Here are the key passages: Although our starting point is to "ascribe to the statutory words their ordinary meaning and significance," we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature. For example, if N.J.S.A. 2C:58-3(c)(8) were to be read literally, a firearm seized as a result of a domestic violence complaint and not "returned" merely because the firearm was lost or misplaced by the police, or stolen while in police custody, would trigger the bar to the future issuance of a handgun purchase permit or firearms card.... Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded. A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)'s bar to the issuance of a firearms card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff's firearms "not been returned" because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was "probable cause to indict," or because the "domestic violence situation" continued after the issuance of the mutual restraining orders, then the conditions of N.J.S.A. 2C:58-3(c)(8) would have been met.... Only when a person's firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and "has not been returned" for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), is that person permanently barred from obtaining a firearms card. That is the only sensible interpretation of N.J.S.A. 2C:58-3(c)(8) and the only interpretation that is fully consistent with what the Legislature must have intended. Therefore, under N.J.S.A. 2C:58-3(c)(8), the reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3) or by an admission made by a plaintiff in a consent judgment. One can debate whether the result is correct as a matter of statutory interpretation, but it struck me as noteworthy in any case. Moreover, it seems to me that the Second Amendment — if incorporated against the states — would indeed require a rule that's at least this protective of gun owners; and that legislatures should in any event not enact laws such as the one at issue here, which on their face seem to disarm people without any finding of misconduct, dangerousness, or incompetence. It's too bad that M.S. had to go through years of litigation to be entitled to own a gun, something that other adult, mentally competent Americans are and should be free to do, at least until they are found to have done something that may justify loss of that right. I leave aside what sort of showing should be required for such a loss of a right (except to say that surely some showing would suffice, for instance when someone is convicted of a crime that sends him to prison, where presumably he would not be allowed to possess a gun). Whatever the threshold, it wasn't met here.