On Monday, New Jersey Governor Chris Christie signed into law a bill that restricts the gun rights of people accused of domestic violence. The new law requires people who are under a domestic violence restraining order to surrender their legally-owned firearms for the duration of the order or for two years — whichever time period is longer. The text of the new law states:
any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years, whichever is greater. (Emphasis added.)
In New Jersey, there are two flavors of restraining orders: a temporary restraining order (TRO), which lasts ten days, and a final restraining order, issued at a hearing during the TRO period, and which can be indefinite in duration.
Remember: restraining orders are pre-trial orders — the person subject to them has not had a trial, let alone been convicted of anything yet.
As such, the standard of proof for that has to be met for restraining orders is lower than generally required in a criminal trial. The TRO requires a bare allegation. In New Jersey, the accuser can, literally, phone it in.
The Final Restraining Order requires that the elements of the alleged offense be proved by a “preponderance of the evidence,” which, one New Jersey criminal defense attorney describes as “a standard that has often been explained as being met where ‘it is more likely than not’ that the elements [of the alleged offense] have been satisfied.” This is a lower bar than the “beyond a reasonable doubt” standard that a prosecutor must meet in a criminal trial.
If you have a TRO imposed against you due to allegations of domestic violence, and at the later hearing, the judge decides that the “preponderance of the evidence” standard has not been met by the accuser and does not grant a Final Restraining Order, under this new law, you’ll still be barred from possessing a firearm for two years.
Also: under New Jersey law, a restraining order cannot be lifted even by mutual agreement between the two parties. Consent of the protected party is just one factor the courts consider.
This is rather destructive toward the civil right to keep and bear arms, as protected under the Second Amendment.
Domestic violence laws are a thorny issue for civil libertarians of any stripe. The problem is that humanity is what it is. When a romantic or familial relationship goes sour, and peoples’ perception of themselves come into play, emotions start running high. People are more prone to destructive acts.
The best thing is to separate everyone as soon as possible, which is difficult when they live together. That’s why the whole TRO process exists. When cohabitating family members are alleging violence, an emotional excrement-storm may be brewing, and time may very well be of the essence.
Because time is prioritized, however, the whole TRO process allows for abuse by the malicious. It’s sort of baked-into the whole process, but is, in theory, constrained by the temporary nature of the order. Under this new law, the accused’s civil rights are denied for seven hundred twenty days, even if a judge finds the allegations to be meritless on day ten.
This is not justice in any sense of the word, and any politician dedicated to that cause so oft-honored in the breach would never have enacted this bill in the first place, or would have limited its civil rights suspensions to a far more reasonable time frame.
Humanity is what it is, unfortunately, and New Jersey’s government doesn’t contain many particularly shining examples of it. There’s simply no political profit in defending the rights of people (mostly men) accused of violence against their domestic partners (mostly women), particularly by the (mostly male) politicians in Trenton. It’s a tough sell. It makes you look bad. It helps you lose elections.
The upshot of this is: don’t expect this law to change any time soon. It’ll be up to the courts to fix this one. And let’s be honest: it will be a while before someone with standing has a chance to win this one on appeal.