Certain Person Possession of Firearm or Weapon in New Jersey
Welcome to Spodek Law Group. If you are reading this, there is a good chance you or someone you care about is facing charges under N.J.S.A. 2C:39-7 - the "certain persons not to have weapons" statute. This is one of the most serious gun charges in New Jersey, carrying mandatory prison time under the Graves Act. But here is something most people do not realize until it is too late: this law does not just target hardened criminals. It catches ordinary people who had no idea they lost their gun rights years ago.
A temporary restraining order from a custody battle in 2009 can send you to prison for 5 years if police find granddad's hunting rifle in your closet today. That is not an exaggeration. That is exactly how this statute works. And the people most shocked to find themselves facing these charges are not career criminals - they are parents, veterans, homeowners, and law-abiding citizens who never realized a single event from their past stripped away their constitutional rights permanently.
Todd Spodek and the team at Spodek Law Group have defended hundreds of clients facing certain persons charges. Many of them walked into our office completely blindsided. They owned guns legally for decades. They passed background checks. They had permits. And suddenly they are facing 5 to 10 years in state prison because of something they forgot happened or never understood the consequences of. If that sounds familiar, keep reading.
What Makes You a "Certain Person" Under New Jersey Law
Heres the thing most people dont understand about this charge. The list of disqualifying events is much longer then most gun owners realize. Under N.J.S.A. 2C:39-7, you become a "certain person" prohibited from possessing firearms if you have been convicted of any of the following:
- Aggravated assault, robbery, burglary, arson, kidnapping
- Sexual assault or aggravated sexual assault
- Homicide, manslaughter, or any crime involving serious bodily injury
- Any drug offense - possession, distribution, conspiracy
- Terroristic threats, stalking, bias intimidation
- Carjacking, racketeering, gang criminality
But heres were it gets complicated. A disorderly persons conviction for a domestic argument - something most states treat as a minor misdemeanor - creates a permanant firearm prohibition in New Jersey. Not for 5 years. Not for 10 years. Forever.
And it dosen't stop there. If you have ever been subject to a restraining order - temporary or final - your a prohibited person under this statute. If you were ever committed to a mental health facility, voluntarily or involuntarily, your prohibited. If you have a conviction from another state that would be considered a felony in New Jersey, your prohibited.
The statute dosen't care if you didnt know. It dosen't care if nobody told you. Ignorance of your own prohibited status is not a defense.
The Silent Prohibitors Most People Never See Coming
OK so think about this. You went through a messy divorce in 2011. Your ex filed for a temporary restraining order during the custody fight. Maybe it was granted for a few weeks, maybe a few months. The divorce finalized, you moved on with your life. You probly forgot it even happened.
Now its 2024. You get pulled over for a broken taillight. The officer runs your information and asks if theres anything in the vehicle he should know about. You mention the legally purchased handgun in your glovebox - the one you bought years ago, the one you have a permit for. Twenty minutes later your in handcuffs facing second degree felony charges.
That restraining order from 13 years ago made you a prohibited person the moment it was entered. Every day you possessed that firearm since then was a separate criminal act.
Gun owners who sought therapy years ago woke up in 2023 as accidental criminals. Their permits are now void. There guns are now contraband. This isnt hyperbole. New Jersey changed its laws in December 2022, and if you ever voluntarily checked yourself into a mental health facility - even for depression, even for anxiety, even for a 72-hour evaluation - your gun rights evaporated. The FPIC you've had for 20 years? Invalid. The handgun in your nightstand? Felony possession.
Heres what makes this particulary cruel. People who sought help for mental health challenges did the responsible thing. They recognized they needed support. They checked themselves in voluntarily. And now New Jersey is punishing them for it with prison time.
How Constructive Possession Creates Liability for Guns You Dont Own
Your roommates legally-purchased handgun in the shared living room can result in YOUR arrest if your a prohibited person - even if you never touched it.
Let that sink in. You dont have to own the gun. You dont have to buy the gun. You dont even have to touch it. Under New Jersey's constructive possession doctrine, if you knew the weapon was there and you had the ability to exercise control over it, thats enough for a conviction.
The prosecution does'nt need to prove you held the gun. They just need to prove you knew it was there and could have controlled it. Under New Jerseys "totality of circumstances" test, proximity plus awareness equals possession. You dont need to touch the gun to possess it under the law.
Think about what this means in practical terms. You live with a roommate who owns firearms legaly. You come home every day, you walk past them, you know there in the closet or the safe or the drawer. If your a prohibited person - and you might not even know you are - every single day your in that apartment is a seperate criminal act.
Courts have upheld convictions where multiple people in a household were charged with constructive possession of the same weapon. The gun belonged to one person. Everyone in the house went to prison.
The Mental Health Trap: How Seeking Help Can Cost Your Rights
New Jersey changed the rules in December 2022. If you voluntarily checked yourself into treatment for depression, your gun permit is now invalid - and possessing that firearm youve owned for years is suddenly a felony.
This deserves its own section becuase the implications are so severe. Before December 2022, voluntary mental health treatment did not automaticaly disqualify you from firearm ownership in New Jersey. The prohibition applied to involuntary commitments - situations where a court or medical authority forced you into treatment.
The law changed. N.J.S.A. 2C:58-3c now disqualifies anyone who voluntarily checked into inpatient or outpatient treatment. Anyone who a court ordered into treatment. Anyone with any mental health commitment on there record, period.
And heres the part nobody talks about. This applies retroactivly. If you sought treatment in 2015, 2010, 2005 - it dont matter. Your FPIC is now invalid. The guns you've legally owned for decades are now contraband in your possession.
Even after you expunge a mental health commitment, the treatment records remain. One wrong answer on a background check question can unravel everthing. The expungement erases the commitment itself. It wont erase the treatment records associated with that commitment. So when you apply for a new permit and they ask if youve ever been treated for mental illness - what do you answer?
Federal law creates another layer of problems. 18 U.S.C. 922(g)(4) creates a lifetime prohibition for mental health commitments. The disability never expires on its own - you have to petition to remove it.
Out-of-State Convictions and the 12-Month Rule
That marijuana plea in Florida you got 20 years ago? If the maximum sentence exceeded 12 months, New Jersey counts it as a felony - regardles of what you actualy served.
This trips up people constantly. You had a drug charge in another state. You pled to a misdemeanor. You got probation, maybe some community service. You moved to New Jersey, bought a home, started a family. Twenty years pass. You apply for a firearm permit or you get pulled over with a gun in your car.
Suddenly your facing felony charges becuase that "misdemeanor" in your old state carried a maximum possible sentence of more then 12 months. New Jersey dosent care what you were actualy sentenced to. It dosen't care that you served no jail time. If the statutory maximum exceeded one year, its a felony here.
The statute is explicit about this. Whenever any person shall have been convicted in another state in a court of competent jurisdiction, of a crime which is comparable to one of the crimes enumerated in the statute, then that person shall be subject to the provisions. And New Jersey interpets "comparable" very broadly.
This is particularly devastating for people who had minor drug charges decades ago in states with harsh sentancing guidelines. A simple possesion charge that would be a disorderly persons offense in New Jersey might have carried a 2-year maximum in Texas or Florida. That makes you a felon for purposes of this statute.
Graves Act Penalties: The "Mandatory" Minimum That Isnt Always Mandatory
Second degree means 5 to 10 years in state prison. Third degree - triggered by restraining orders or domestic violence misdemeanors - means 3 to 5 years. The Graves Act mandates a minimum of 42 months before parole eligibility for most firearm offenses.
Those numbers sound absolutly terrifying. And they should. New Jersey takes gun crimes extremly seriously, and the penalties reflect that. But heres something most defendants dont know until its to late.
The 42-month "mandatory" prison term isnt mandatory at all. First-time offenders can get waivers that reduce it to one year - or sometimes no prison at all.
The Graves Act includes specific provisions for waivers. If you have no prior criminal convictions - especialy no prior weapons convictions - your eligible to apply. The waiver can reduce your sentence dramaticaly. Instead of 42 months of parole ineligibility, you might get 12 months. Instead of state prison, you might get probation.
But the waiver wont happen automaticaly. The prosecutor has to agree to file a motion, or your defense attorney has to file one and convince the judge. Either way, you need someone who understands the waiver process inside and out. You need someone who knows exactly what factors the court considers and how to present your case in the best possible light.
No prior weapons convictions? The Graves Act waiver is designed exactly for people like you. The question is wheather your attorney knows how to get it.
Defense Strategies That Actually Work
Pre-Trial Intervention can dismiss certain persons charges entirely. The felony disappears. But only if you know to ask for it and have the right facts.
PTI is New Jerseys diversionary program for first-time offenders. If your accepted, you complete a period of supervision - usualy 1 to 3 years - and the charges against you are dismissed. No conviction. No prison. No felony record.
Most people dont realize PTI is even an option for certain persons charges. It is. But you have to apply for it, and the prosecutor has to approve it, and the court has to accept you. The process is competative and the stakes are enormous.
Beyond PTI, there are several defense strategies that work in these cases:
Challenging the underlying prohibition. Was that restraining order properly served? Was that out-of-state conviction realy comparable to a New Jersey crime? Is there documentation showing your mental health commitment was expunged?
Challenging the search. How did police find the weapon? Was there probable cause for the stop? Was the search of your vehicle or home constitutional? If the evidence was obtained illegally, it can be suppressed.
Challenging possession. Did you realy know the weapon was there? Did you have the ability to control it? Were you just a passenger in someone elses car? The prosecution has to prove knowing possession, and that element can be contested.
Challenging the weapon classification. Is the item technicaly a firearm under New Jersey law? Does it meet the statutory definition? There are cases where items were mistakenly classified as prohibited weapons.
The Restoration Path: Getting Your Rights Back
For people whose prohibition stems from mental health history, New Jersey does provide a pathway to restoration. N.J.S.A. 30:4-80.8 allows individuals who have recovered to petition the court for an expungement of the commitment. If granted, you can proceed as if the commitment never happened.
But theres a catch. The expungement only erases the commitment itself. The treatment records remain. The questions on future applications about wheather youve ever been treated for mental illness will still apply. Navigating this process requires careful legal guidance.
For convictions, the path is different. Some convictions can be expunged after certain waiting periods. Others cannot. Federal prohibitions under 18 U.S.C. 922 require their own separate petition process to remove the disability.
What you should not do is assume theres no hope. People get there rights restored every year. People get Graves Act waivers every month. People get PTI for certain persons charges and walk away with clean records. It happens - but only for defendants who have attorneys who know how to make it happen.
If your facing certain persons charges in New Jersey, the worst thing you can do is assume the mandatory minimums are truly mandatory or that your situation is hopeless. At Spodek Law Group, we have seen cases that looked impossible on paper result in probation, reduced charges, or complete dismissals.
Call us at 888-997-4071. The consultation is free. The consequences of not calling could be decades of your life.
