The Appellate Division continued in relevant part: The facts in F.M. and Cordoma are readily distinguishable from this case. Appellant has no history of domestic violence. Accordingly, the forfeiture procedure codified in N.J.S.A. 2C:25-21(d)(3) does not apply.
We also recognize that N.J.S.A. 2C:64-1(a)(1)-(2) provides for forfeiture of firearms unlawfully possessed or acquired, or used in furtherance of an unlawful activity. In addition, N.J.S.A. 2C:58-24 and -26 provide for the surrender of firearms, FPICs, HPPs, and carry permits under circumstances that “pose a significant danger of bodily injury” pursuant to “an extreme risk protective order.” Appellant’s conduct does not fall within either statute.
There is no allegation, much less evidence in the record, that appellant used his handgun in furtherance of an unlawful activity, committed an act of domestic violence, or was subject to weapon surrender under an extreme risk protective order. Nor is there any evidence that appellant improperly brandished or fired his firearms. Moreover, because appellant’s firearms were not “unlawfully possessed, carried, acquired or used,” they are not “prima facie contraband.” N.J.S.A. 2C:64-1(a)(1).
The State concedes there is no statutory authority for a court to order the seizure and compelled sale of firearms except in circumstances not present here. We concur.
The State nevertheless argues the forfeiture is moot because the 120-day period for appellant to arrange for the sale of his firearms to a licensed gun dealer expired without appellant seeking a stay or emergent relief of the trial court’s order from this court. The State notes appellant turned his firearms over to the police and speculates the guns were sold pursuant to the trial court’s order.
The State’s concession and speculation are indicative of their effort to use procedure as a weapon in a case in which the substantive law clearly undermined their actions. This is a common tactic that can only be recognized and contested through experience in handling criminal cases.
