Seizure of Weapons

Whenever a restraining order is issued, it is the obligation of police to seize all weapons owned or possessed by the defendant. There is no exception to this rule in the even of issuance of a temporary restraining. And if the end result of the proceedings is entry of a final restraining order (a.k.a. permanent restraining order), the weapons cannot be returned to the possession of the defendant. The situation enters into a grey area, however, where the restraints are lifted by consent or as a result of failure on the part of the plaintiff to satisfy his/her burden at the final restraining order hearing. The following is important information concerning the law that applies if you are seeking the return of weapons seized upon entry of a restraining order.

The prosecutor may apply to the court for an order effectively foreclosing the right of the accused to possess the seized weapons if probable cause exists to believe that forfeiture is necessary and/or. The relief requested by the prosecutor may include the following:

1. Acquiring title to the seized weapons;
2. Revocation of any permits, licenses, etc., held by the accused; or
3. Withholding of the weapons on the basis that the accused poses a threat to the public in general or a person or persons in particular.

The aforesaid relief can only be granted if the defendant has been provided notice of the action and an opportunity to contest the relief in a hearing.

The prosecutor does not have the right to arbitrarily withhold your weapons once the restraining order is dropped/dismissed. The weapons must be returned absent a determination by the prosecutor that probable cause exists for forfeiture and/or the domestic issue continues to exist. And if the prosecutor fails to move within 45 days for forfeiture and/or establish a valid basis for withholding the weapons, the defendant is entitled to recovery of costs incurred in obtaining a return of the weapons, including reasonable attorneys’ fees.

It is the obligation of the defendant to make arrangements for the weapons to be transferred and/or sold within 60 days of forfeiture. If the owner does not make such arrangements, the prosecutor’s office is free to dispose of the weapons, including selling and/or destroying them.

If a restraining order was entered against you, it is important that you consult an attorney. Our firm can help you avoid permanent restraints and recover your handgun, shotgun, rifle or other firearm. Call us today at (732) 286-6500 to speak to one of our weapon defense lawyers immediately.