In the Matter of the Petition to Forfeit Firearms, Frank W. Farrell, Jr.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0864-22

IN THE MATTER OF PETITION
TO FORFEIT FIREARMS,
CLAIMANT FRANK W.
FARRELL, JR.
_______________________________

Submitted October 31, 2023 – Decided December 20, 2023

Before Judges Whipple and Paganelli.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FO-01-0124-22.

William E. Reynolds, Atlantic County Prosecutor,
attorney for appellant, State of New Jersey (James H.
Lee, Assistant Prosecutor, of counsel and on the brief).

Respondent Frank W. Farrell, Jr. has not filed a brief.

PER CURIAM

In this one-sided appeal the State seeks review of the judge's November

15, 2022 order memorializing his January 10, 2022 denial of the State's request

for Frank M. Farrell, Jr. to forfeit firearms and for an in-camera review of

Farrell's records and the trial court's denial of reconsideration of the January
order on October 18, 2022. Because we conclude the judge erred by relying on

the wrong statute for timeliness and too narrowly interpreting the legislative

framework, we vacate the orders and remand the matter for proceedings

consistent with this opinion.

I.

We glean the facts and procedural history from the motion record. On

August 9, 2001, Farrell's wife obtained a temporary restraining order pursuant

to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

In her complaint, she alleged:

Defendant was emotionally abusive calling plaintiff a
whore and other derogatory names and stating plaintiff
is using sex to get attention, also telling plaintiff is
unwanted by others. This emotional abuse occurred
throughout the weekend of August 5-9, 2021.
Defendant also admitted to plaintiff of doing negative
things in the past, such as stealing medications.

8/5/21 While the plaintiff was intoxicated the defendant
sexually assaulted her. Plaintiff does not recall the
incident but once sober plaintiff questioned the
defendant as to what happened and defendant admitted
to taking advantage of the situation having sex with the
plaintiff.

August 14-15, 2021 - As plaintiff was trying to get
away from ongoing situation, the defendant gained
access to plaintiff's information to discover where the
plaintiff was temporarily staying. Pla[intiff] went into

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 a detox from 8/9-8/17/21 and then made arrangements
to stay in a hotel after.

Defendant has sent plaintiff many threatening text
messages since November 2020 up until recent weeks.
Defendant has made threats to harm the plaintiff and
other people close to plaintiff including plaintiff's
boyfriend. Defendant said he would beat the s[**]t out
of the plaintiff's boyfriend.

Further, Farrell's wife alleged a prior history of domestic violence that included:

March 2021 – defendant used an Ipad as [a] tracking
device and put [it] in plaintiff['s] vehicle. Defendant
would then show up to places where plaintiff was
located.

Defendant was reading the plaintiff's therapeutic
journals and using information negatively against
plaintiff, by bringing it up during moments of issues
between [the] parties and try[ing] to manipulate
plaintiff.

December 2020 – Defendant accessed plaintiff's
personal bank account and took money.

April 2021 – Defendant stole plaintiff['s] personal
[e]ffects such as underwear and admitted to urinating
on them.

Included within the TRO was a "warrant to search for and to seize

weapons for safekeeping." The warrant pertained to "any and all firearms

belonging to" Farrell. On August 8, 2021, Farrell was served with the TRO and

the following firearms/weapons were seized:

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 One (1) Remington Model 7600 rifle . . .;
One (1) Stevens Model 77F shotgun . . .;
One (1) Mossberg Model 500AG . . .;
One (1) Lee Enfield Model Mark III rifle . . .; and
One (1) unknown make and model double barrel style
shotgun.

On September 28, 2021, Farrell's wife dismissed her TRO by agreement.1

On October 22, 2021, the State filed a "[p]etition [t]o [f]orfeit [w]eapons

[p]urstant [t]o N.J.S.[A]. 2C:25-17 . . . N.J.S.[A]. 2C:25-21(d)(3), N.J.S.[A].

2C:58-3(c), and N.J.S.[A]. 2C:58-3[(f)]."

On December 30, 2021, the State emailed the court and stated:

[its] position is that complete record review of all
named physicians and any/all Schedule I-V drugs
prescribed to [Farrell] are necessary in order to
determine whether claimant is a drug dependent person
pursuant to 2C:58-3(c)(2), whether claimant suffers
from physical defect or disease which would make it
unsafe for him to handle firearms pursuant to 2C:58-
3(c)(3), and/or whether claimant is a habitual drunkard
which return of firearm would not be in the interest of
the public health, safety or welfare under 2C:58-
3(c)(5).

1
The order of dismissal states that an "agreement was placed under FM-01-
659-21." "The FM docket consists of complaints for dissolution matters
including: divorce, dissolution of a domestic partnership, civil union
dissolution, and palimony, as well as related relief in cases where a dissolution
complaint has been filed." B.C. v. N.J. Div. of Child Prot. & Perm., 450 N.J.
Super. 197, 207 n.8 (App. Div. 2017) (citing N.J. Div. of Youth & Family Servs.
v. I.S., 214 N.J. 8, 22 n.3 (2013)).
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 Notably, the State was not aware of claimant's alcohol
problems, including past commitments, until yesterday.
After review of medical and prescription records, the
State may need to amend the petition to move under
2C:58-3(c)(3) as well. . . . [t]he State needs more
evidence[] to determine whether the State can return
firearms to claimant without breaking the law, namely
2C:58-3(c).

Therefore, the State requests this [c]ourt conduct an in
camera review of [c]laimant's medical records,
including prescription and psychological records.

On January 10, 2022, the judge heard the parties' arguments. In an oral

opinion, the judge denied the State's request for forfeiture and an in-camera

review. The judge found that the return of the weapons was warranted because:

(1) there was no finding of domestic violence; (2) the temporary restraining

order was dismissed by an agreement; (3) there was no criminal complaint or

formal charge; (4) there was no current or present domestic violence situation;

(5) the State's concerns regarding Farrell were based on "conjecture"; there was

no evidence to indicate Farrell had issues and the State is "technically seeking

an opportunity to gather information"; (6) the situation did not warrant an in-

camera review; and (7) the State's petition was untimely.

On January 14, 2022, the judge stayed the January 10, 2022 order "so that

the State's motion for [r]econsideration and opposing parties' briefs may be

adequately reviewed."

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 On October 18, 2022, the judge heard the parties' arguments on the State's

motion for reconsideration of the January 10, 2022 order. The judge denied

reconsideration in an oral opinion. The judge described the State's application

as one for in-camera review of medical records, related to alleged substance

abuse and mental health issues, that could potentially support an application for

Farrell to forfeit his weapons. The judge determined that the State had not met

its burden to establish reconsideration. Further, he found the State's application

to investigate was inappropriate, and the State had no "ability to seek forfeiture"

or in-camera review.

On November 15, 2022, the judge entered an order memorializing his

denial of the State's original petition, January 10, 2022, and his denial of the

State's motion for reconsideration, October 18, 2022. The judge's order required

that "Farrell's firearms shall be returned within [seven] days of entry of th[e]

order."

II.

We review questions of law de novo. Rowe v. Bell & Gossett Co., 239

N.J. 531, 552 (2019). A judge's "interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

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deference." Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

This appeal involves the State's responsibility and authority under the

statutes that govern the right to possess firearms. Here, the State's roles are

implicated under the PDVA, which involves "a law enforcement officer's

authority to seize weapons," and the State's role in the return of those weapons,

N.J.S.A. 2C:25-21, and N.J.S.A. 2C:58-3, the statute that regulates the "permit

to purchase a handgun" and the issuance of a "firearms purchaser identification

card."2 The statutes are separate but interrelated. Indeed, the PDVA provides

that the domestic violence court shall consider the "disabilities set forth in . . .

N.J.S.A. 2C:58-3(c)" before "the return of . . . firearms." N.J.S.A. 2C:25-

21(d)(3).

A.

Under the PDVA, when a law enforcement officer "has probable cause to

believe that an act of domestic violence has been committed" and has

2
"N.J.S.A. 2C:58-3(a) refers to permits to purchase a handgun, which expire
after ninety days. N.J.S.A. 2C:58-3(a) and (f). A new permit must be obtained
for each handgun purchase. See N.J.S.A. 2C:58-3(f). N.J.S.A. 2C:58-3(b)
refers to firearms purchaser identification cards which are lasting and which
must be obtained to 'acquire an antique cannon or a rifle or shotgun.'" See In re
Forfeiture of Pers. Weapons and Firearms Identification Card Belonging to
F.M., 225 N.J. 487, 491 n.2 (2016).
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"observ[ed] or learn[ed] that a weapon is present on the premises," he or she

shall "seize[] any firearm . . . any firearm purchaser identification card, or permit

to purchase a handgun issued to the person accused of the act of domestic

violence." N.J.S.A. 2C:25-21(d)(1). "Weapons seized . . . shall be returned to

the owner except upon order of the Superior Court." N.J.S.A. 2C:25-21(d)(3).

The prosecutor may petition a judge

within [forty-five] days of seizure, to obtain title to the
seized weapons, or to revoke any and all permits,
licenses and other authorizations for the use,
possession, or ownership of such weapons pursuant to
the law governing such use, possession, or ownership,
....

[Ibid.]

"If the prosecutor does not institute an action within [forty-five] days of seizure,

the seized weapons shall be returned to the owner." Ibid.

Also, a prosecutor

may object to the return of the weapons on such
grounds as are provided for the initial rejection or later
revocation of the authorizations, or on the grounds that
the owner is unfit or that the owner poses a threat to the
public in general or a person or persons in particular.

[Ibid.]

Following a hearing

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 the court shall order the return of the firearms, weapons
and any authorization papers relating to the seized
weapons to the owner if the court determines the owner
is not subject to any of the disabilities set forth in
[N.J.S.A. 2C:58-3(c)] and finds that the complaint has
been dismissed at the request of the complainant and
the prosecutor determines that there is insufficient
probable cause to indict; . . . or if the court determines
that the domestic violence situation no longer exists.

[Ibid. (emphasis added).]

Therefore, the judge must begin their analysis for the "return of the

firearms, weapons and any authorization papers" with consideration of the

"disabilities set forth in" N.J.S.A. 2C:58-3(c). "[E]ven if a domestic violence

complaint is dismissed and the conditions abate, forfeiture may be ordered if the

defendant is subject to any of the disabilities in N.J.S.A. 2C:58-3(c) . . . ." In re

F.M., 225 N.J. at 510-11.

B.

Under N.J.S.A. 2C:58-3(f) "[t]he application for the permit to purchase a

handgun[;] . . . the application for the firearms purchaser identification card[;]"

and the application to renew the firearms purchaser identification card all

include an investigation of the applicant. Included within the investigation is a

determination whether an applicant is subject to one or more of the disabilities

listed in N.J.S.A. 2C:58-3(c). Even

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 an applicant for a handgun purchase permit who
possesses a valid firearms purchaser identification card,
or who has previously obtained a handgun purchase
permit from the same licensing authority [is subject to
an] investigat[ion] . . . to determine whether or not the
applicant has become subject to any of the disabilities
set forth in this chapter.

[N.J.S.A. 2C:58-3(e).]

The State's authority to investigate permeates the entire statutory

framework because "[a] handgun purchase permit or firearms purchaser

identification card shall not be issued" to any person that is subject to a disability

defined in the statute. N.J.S.A. 2C:58-3(c).

We conclude the authority to investigate includes those situations where

the State has petitioned the court, with reasonable evidence that "[a] firearms

purchaser identification card [holder has become] subject to any of the

disabilities set forth in [N.J.S.A. 2C:58-3(c)] . . . ." See N.J.S.A. 2C:58-3(f).

To hold otherwise would render the State helpless in the face of reasonable

evidence that may warrant further investigation that a weapon owner may be

subject to a disability.

C.

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 Here, the judge found that the State's petition and investigation, seeking

an in-camera review of Farrell's records, were untimely and improper intrusions

on Farrell's rights. We disagree.

First, the judge erred in finding that the State's petition was untimely under

N.J.S.A. 2C:25-21(d)(3). That statute does require the State to "institute an

action within [forty-five days] of seizure" and "if the [State] does not . . ., the

seized weapons shall be returned to the owner." N.J.S.A. 2C:25-21(d)(3).

Admittedly, the State filed four days after the deadline. However, the judge's

reliance on N.J.S.A. 2C:25-21(d)(3) was misplaced, because the State sought

forfeiture under N.J.S.A. 2C:58-3(f), which allows a filing at "any time."

Second, the judge erred in denying an investigation, the in-camera review

of Farrell's records. We conclude the State's petition was supported by

reasonable evidence that sustained its legitimate concern that Farrell had

become "subject to . . . the disabilities set forth in" N.J.S.A. 2C:58-3(c). The

power to investigate includes situations where the State has lawfully seized

weapons and is provided with a certified statement that a weapon's owner may

have a statutory disability under N.J.S.A. 2C:58-3(c). Here Farrell's wife

certified that he: was emotionally abusive; was stealing medications; sexually

assaulted her; sent her many threatening text messages; and made threats to harm

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her and other people close to her including her boyfriend. The behaviors may

implicate the statutory disabilities and require investigation.

We understand the trial court's legitimate concern with allowing the State

to conduct "fishing expeditions" into people's lives. However, that situation

does not exist here. Instead, there is a basis to investigate because the certified

statements from Farrell's wife may implicate the statutory disabilities.

Therefore, under these circumstances, an in-camera review of Farrell's records

and, perhaps, further investigation is warranted. The judge erred by too

narrowly interpreting the statutory framework and in denying the State's request.

We emphasize the limited reach of our opinion. We do not order

forfeiture. Forfeiture requires notice and a hearing. N.J.S.A. 2C:58-3(f).

Instead, we vacate the judge's orders and allow for an investigation, including

the requested in-camera review of Farrell's records. Thereafter, if necessary, a

meaningful hearing may take place.

To the extent we have not addressed the State's other arguments we deem

them without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Vacated and remanded. We do not retain jurisdiction.

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