M.S. v. Millburn Police Department, A-80 September Term 2007; Supreme Court; opinion by Albin, J.; decided December 23, 2008. On certification to the Appellate Division, 395 N.J. Super. 638 (App. Div. 2007). [Sat below: Judges Stern, Rodriguez and Sabatino in the Appellate Division; Judge + in the Law Division.] DDS No. 14-1-xxxx [27 pp.]

In 1997, plaintiff M.S. was issued a domestic-violence complaint and the police seized his five handguns and his firearms purchaser identification card. At a domestic-violence hearing, with the consent of M.S. and his then-wife, the family court entered mutual final restraining orders. Those orders did not refer to the firearms.

The Essex County Prosecutor’s Office then filed a petition to forfeit the handguns pursuant to N.J.S.A. 2C:25-21(d)(3) of the Prevention of Domestic Violence Act of 1991. Plaintiff entered into a consent judgment with the prosecutor’s office in which he agreed to sell the firearms or, otherwise, surrender title to them. He sold the weapons. The consent judgment did not provide for the forfeiture of his firearms card. No hearing was ever held to determine whether M.S. committed an act that disqualified him from obtaining a firearm. Nor did he admit to any disqualifying act. The criminal complaints filed against M.S. for threats and assault were dismissed by the municipal court. Three years later, at the request of his former wife, the restraints pertaining to the final restraining order against M.S. were dismissed.

In 2005, the Millburn Township Police Department refused to return plaintiff’s firearms card on the basis that his previously seized weapons were not “returned” and therefore he was permanently barred from possessing a firearm under 2C:58-3(c)(8), a newly enacted disability provision of the Gun Control Law. Plaintiff filed an action in lieu of prerogative writs for the return of the firearms card.

The Law Division granted summary judgment in M.S.’s favor and ordered the return of the card, finding that the 2004 law did not apply to the 1997 consent judgment and that the prosecutor’s office could institute proceedings if M.S. was otherwise disqualified from possessing a firearm.

The Appellate Division reversed and directed that the firearms card be withheld. It concluded that the new law applied because, under the plain language of 2C:58-3(c)(8), plaintiff’s previously seized firearms were not “returned” to him.

Held: Only when a person’s firearm is seized pursuant to the PDVA and has not been returned for a reason set forth in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-23(d)(3), is that person permanently barred from obtaining a handgun purchase permit or firearms card by N.J.S.A. 2C:58-3(c)(8).

The Court says that in 1997, when the Essex County Prosecutor’s Office filed its petition to forfeit plaintiff’s handguns, the Domestic Violence Forfeiture Statute, 2C:25-21(d)(3), set forth the path for pursuing the forfeiture of a firearm or the revocation of a firearms card. Under it, if the prosecutor’s office could show that plaintiff fell within any of the disability categories of 2C:58-3(c) or that he was unfit or posed a threat to the public, then a reason for forfeiture of his weapons and the revocation of his card would be established. Or the court could have ordered forfeiture of the weapons and card if it found that the domestic-violence situation persisted (which was not the case here).

Because a hearing was never conducted, whether the prosecutor’s office would have succeeded on its forfeiture petition is a matter of speculation. M.S.’s agreement to enter a consent judgment permitting him to sell his firearms or surrender title to the state did not contain an admission that he was subject to one of the forfeiture provisions of 2C:25-21(d)(3) and the domestic-violence restraining order was dissolved. Thus, in 2000, there does not appear to have been any legal impediment prohibiting plaintiff from obtaining a firearms permit and purchasing a weapon.

The Court then addresses whether the 2004 addition of 2C:58-3(c)(8) precludes plaintiff from obtaining a firearms permit or possessing a firearm. N.J.S.A. 2C:58-3(c) provides that no purchase permit or firearms identification card shall be issued to any person whose firearm is seized pursuant to the PDVA and not returned.

To determine whether plaintiff’s firearms were not “returned” under the statute, the Court looks to the statutory language and legislative history. It says that, clearly, the Legislature did not intend to prohibit the issuance of a firearms card because a firearm was not returned due to sheer fortuity. A commonsense reading of the statute requires that its bar be due to some fault of plaintiff.

It says the only sensible interpretation of 2C:58-3(c)(8) and the only one that is fully consistent with what the Legislature must have intended is that 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 2C:25-21(d)(3) is that person permanently barred from obtaining a firearms card.

Here, by entering into the consent judgment without a stipulation that the weapons were subject to forfeiture, plaintiff did not admit to a statutory basis for forfeiting his right to possess a firearms card or a firearm under 2C:25-21(d)(3). Nor was there a judicial finding that he forfeited his right to a firearms card or to possess a firearm under that statute. Therefore, he is entitled to a hearing to determine whether, when he entered into the consent judgment, the prosecutor’s office was capable of proving that he had committed an act that warranted the forfeiture of his firearms. If the prosecutor’s office can meet that burden, then it will have shown that the weapons were not “returned” for a reason grounded in 2C:25-21(d)(3) and that plaintiff is not entitled to possess a firearms card. At the hearing, the prosecutor’s office shall also be given the opportunity of showing whether plaintiff, today, is otherwise disqualified from possessing a weapon under 2C:58-3(c).

Chief Justice Rabner and Justices LaVechia , Wallace , Rivera-Soto and Hoens join in Justice Albin ‘s opinion. Justice Long did not participate.

— By Judith Nallin

For appellant — Jason R. Melzer (Cole, Schotz, Meisel, Forman & Leonard). For respondent — Kenneth P. Ply, Assistant Prosecutor (Paula T. Dow, Essex County Prosecutor; Ply and Sara A. Friedman, Assistant Prosecutor, on the letter briefs).