First, the differences. The new legislation actually mirrors some of what appears in the domestic violence statutes. It allows family members and household members to ask for a form of the temporary restraining order, which could ultimately constitute a final restraining order under the Extreme Risk Protective Order Act of 2018.
Separate and apart from New Jersey’s new red flag laws, are concerns about domestic violence weapons search warrants. The issue has created such controversy that it recently became the subject of a New Jersey Supreme Court case.
That said, a domestic violence complaint presupposes there is a victim. Nineteen separate predicate acts could justify a reason for protection under New Jersey’s Prevention of Domestic Violence Act of 1991. The two types of restraining orders differ in that there is no requirement to prove anything actually occurred to warrant an Extreme Risk Protective Order.
In the meantime, the New Jersey Supreme Court recently ruled on a matter involving domestic violence that proves relevant when it comes to weapons and their removal. The results may interest you.
Did Weapons Prove a Threat in this Domestic Violence Case?
The New Jersey Supreme Court ruled on State v. Hemenway on July 24, 2019. The caption of the case indicates that this was the criminal portion of the matter before the court. As you may or may not know, all predicate acts of domestic violence correlate to a section of New Jersey’s criminal code.
In writing the decision, the Supreme Court referred to the victim as D.S. to protect her anonymity. The underlying case dates back to June 2012 when D.S. filed a domestic violence complaint against James Hemenway in the Union County Courthouse. The two had a history of a dating relationship.
D.S. alleged that she needed protection from her ex-boyfriend for a number of reasons. She first contended that Hemenway entered her apartment unannounced. While he was there, he did the following:
- Damaged her air conditioner when he came in through the living room window
- Used “foul language” in speaking to D.S.
- Pushed D.S. and caused her to fall
- Punched and scratched D.S.’s mother when she attempted to intervene
- Attempted to strangle D.S.
- Threatened to kill D.S. and her family
- Threatened to have someone throw acid on D.S.’s face
- Shocked D.S. with a Taser gun
Remarkably, the confrontation ended as Hemenway sat next to D.S., apologized, and pledged his love for her.
What Happened Next?
On the following day, D.S. met up with Hemenway and gave him money. According to the victim, he subsequently threatened to kill her mother. Additionally, Hemenway said he would destroy D.S. and her family.
When D.S.applied for a restraining order in Superior Court, she not only asked that Hemenway stay away from her and her family. She also requested that the court restrain him from “possession of firearms, knives, & [a Taser].”
The judge hearing the domestic violence complaint asked about the extent of the weapons and their location. Although D.S. admitted that she knew about knives and blades, she didn’t answer questions regarding the handguns.
Subsequently, the court entered a temporary restraining order and authorized a warrant to ” search for and seize . . . handguns, knives, switchblades” from Hemenway’s home and three specified vehicles.” That said, the judge did not articulate a probable cause suggesting that Hemenway possessed firearms or switchblades in the specified locations.
When police arrived to Hemenway’s apartment, he refused to comply with the search warrant. The officers secured keys and entered the premises. While there, they found both marijuana and cocaine. Subsequently, law enforcement authorities impounded two of Hemenway’s vehicles.
The search revealed recovery of several items. Although five hollow-point thirty-eight-caliber bullets were found in a safe, the police did not recover handguns or switchblades. Ultimately. Hemenway’s attorney attempted to suppress the evidence. However, the court denied the motion.
Appeals Court and Beyond
The New Jersey Appellate Court agreed with the trial court’s denial of the motion to suppress. It also agreed with the judge in family court as far as issuing the search warrant in the first place. However, the Appellate Division commented on the fact that the “warrant failed to state with specificity the reasons for and scope of any search and seizure authorized by the order.”
Hemenway brought the case to the New Jersey Supreme Court, asserting that issuance of the search warrant on less than probable cause violated his constitutional rights. As a result, any evidence obtained from that search should be deemed inadmissible.
In the meantime, the State of New Jersey argued that “”a civil weapons search to protect domestic-violence victims is a special-needs search” and therefore is not subject to the “probable-cause standard for criminal investigations.”
Ultimately, the Supreme Court disagreed with the decisions of the two lower courts. Although Hemenway initially entered a guilty plea, he was afforded the chance to withdraw it. The evidence gained during the search was suppressed due to the lower court’s “defective domestic violence order.”