NJ Cops May 2014 | Page 14

14 NEW JERSEY COPS ■ MAY 2014 The Domestic Violence Act can hit LEOs Laws regarding domestic violence have become increasingly more stringent in the past several years. Under New Jersey’s Domestic Violence Act, police responding to the scene of a domestic violence incident are generally required to seize the weapons of the individual charged with the offense – even before any finding of guilt occurs. This includes situations in which the defendant is a law enforcement officer. The law Robert A. makes no distinction in this regard. Usually, the seizure of an officer’s weapons does not result in Fagella, Esq. even temporary job loss, because most departments will await the final outcome of the domestic violence allegation. However, the stakes for law enforcement officers are extremely high should conviction of a crime involving domestic violence occur. This has been illustrated most recently in a case decided by the Appellate Division entitled Frazier v. Department of Corrections, N.J. Super (App. Div. 2014). The case has a 13-year history. Frazier was a corrections officer employed by the New Jersey Department of Corrections (NJDOC). In 2000, he was found guilty of a disorderly persons offense involving domestic violence (simple assault) with his live-in girlfriend. Following the seizure of his weapon, the Department of Corrections filed disciplinary charges, contending that Frazier could no longer be a corrections officer because the Lautenberg Amendment to the Federal Gun Control Act prohibits possession of a weapon following a conviction for certain crimes involving domestic violence. The DOC claimed the ability to carry a weapon was an essential prerequisite of his position, even though a state corrections officer is rarely required to carry a firearm as part of the usual and daily responsibilities. In 2007, however, the Appellate Division ruled against the DOC, concluding that the state crime of which Frazier had been convicted did not include as an “essential element” the kind of violence contemplated by the Lautenberg Amendment. However, the court remanded the case back to the DOC to determine whether other charges were warranted. Paul L. In 2008, the DOC filed new charges, this time conKleinbaum, tending that New Jersey’s newly amended Domestic Esq. Violence Act, N.J.S.A. 2C:39-7(b)(2), the state law analogous to the Lautenberg Amendment, prohibits carrying a firearm as well, but does not require as an “essential element” the more serious violence contemplated by the Lautenberg Amendment as a prerequisite for permanent weapons forfeiture. On appeal, the Appellate Division again dismissed the charges, although it did not address the merits of the case. Instead, it concluded that the DOC failed to follow proper procedures in amending the discipline charges to include the state domestic violence law. Incredibly, however, the Appellate Division allowed the DOC to take a third bite at the apple. The DOC properly amended the charges, and this time the Appellate Division sustained the termination. The court acknowledged the obvious procedural problems with the DOC’s failure to bring charges correctly for almost 10 years, but nonetheless held it to be within the DOC’s authority. It then proceeded to conclude that the state law cited by the DOC, N.J.S.A. 2C:39-7(b)(2), prohibited a law enforcement officer NJ State PBA Legal Corner Zazzali, Fagella, Nowak, Kleinbaum & Friedman Representing the New Jersey State PBA, local PBAs, and law enforcement officers for more than 40 years: Contract negotiations and interest arbitration; Contract grievances and grievance arbitration; All disciplinary appeals and unfair practice charges; Discrimination and whistleblower cases; Disability pension appeals; All aspects of State and Federal litigation; State PBA Legal Protection Plan; Practice before PERC, Civil Service Commission, PFRS and other State agencies. www.zazzali-law.com [email protected] Newark One Riverfront Plaza Suite 320 1037 Raymond Boulevard Newark , NJ 07102 Tel: [phone] Fax: [phone] Trenton 150 West State Street 3rd Floor Trenton, NJ 08608 Tel: [phone] Fax: [phone]