Police licensing has begun in earnest and one of the areas that will be targeted by the Police Training Commission are domestic violence matters. Allegations of domestic violence carry serious consequences in terms of licensing. N.J.A.C. § 13:1-10.1 provides that any person employed as a law enforcement officer, including a full-time permanent law enforcement officer; a class one, class two, or class three special law enforcement officer; or a probationary or temporary law enforcement officer shall hold a valid, active license as a law enforcement officer. N.J.A.C. § 13:1-12.1(g)(2) states that proof of a conviction for “an act of domestic violence pursuant to N.J.S.A. 2C:25-17 et seq.” shall “result in the mandatory denial of licensure, a refusal to renew a license, or a revocation of licensure.” According to N.J.S.A. § 2C:25-19, “Domestic violence” means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: (1) Homicide; (2) Assault; (3) Terroristic threats; (4) Kidnapping; (5) Criminal restraint; (6) False imprisonment; (7) Sexual assault; (8) Criminal sexual contact; (9) Lewdness; (10) Criminal mischief; (11) Burglary; (12) Criminal trespass; (13) Harassment; (14) Stalking; (15) Criminal coercion; (16) Robbery N.J.S.2C:15-1; (17) Contempt of a domestic violence order pursuant that constitutes a crime or disorderly persons offense; (18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” (C.2C:25-17 et al.); or (19) Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1). Therefore, N.J.A.C. § 13:1-12.1(g)(2) makes it abundantly clear that a conviction for an act of domestic violence (as defined by N.J.S.A. § 2C:25-19) will be fatal to one’s ability to obtain or maintain a law enforcement license in New Jersey.

What about when an officer is not subject to criminal charges of domestic violence, and instead has a temporary restraining order (TRO) imposed upon them that is later dismissed? Pursuant to N.J.A.C. § 13:1-12.1(e)(1)(iii), the Commission also “shall have the authority to deny a license to an applicant, refuse to renew a license, or impose adverse licensure actions, upon proof by a preponderance of evidence, that the applicant or licensee has committed acts that constitute a criminal violation as evidenced by… the entry of a domestic violence restraining order issued pursuant to N.J.S.A. 2C:25-17 et seq.” This provision is not as narrowly tailored as the previously once referenced. And unlike the prior provision discussed, it does not absolutely mandate revocation or denial as a domestic violence conviction does. I recently spoke to a family law practitioner who, ironically, questioned what the term “domestic violence restraining order” meant as used in the licensing regulations. The point was well-taken because the provision does not distinguish between a TRO or a final restraining order (FRO). But I don’t believe that distinction is necessary.

For one, if an officer has a FRO imposed upon them, they can’t be licensed as they won’t be able to carry a firearm. Secondly, by using the phrase “upon proof by a preponderance of evidence,” it implies that the Commission can take action against any individual accused of domestic violence, even if that person was acquitted of an underlying criminal charge. This is because prosecutors in a criminal case have a higher burden of proof (beyond a reasonable doubt) than the Commission has in an adverse licensing action (proof by a preponderance of evidence). Moreover, because a TRO would qualify as a “domestic violence restraining order issued pursuant to N.J.S.A. 2C:25-17 et seq.” this means the Commission can impose an adverse licensure action (up to denial and or non-renewal), pursuant to N.J.A.C. § 13:1-12.1(e)(1)(iii), even if that TRO is dismissed and never becomes a FRO. In such cases, N.J.A.C. § 13:1-12.1(e)(1)(iii) allows the Commission to review the specific facts associated with a case and make their own determination, even if it involved the imposition of a TRO which is later dismissed.

Police licensing is obviously new in New Jersey and “adverse licensing actions” have only recently started to be filed against officers. We will do our best to keep readers updated with the various decisions stemming from these actions as they will likely aid in our ongoing efforts to interpret these regulations and statutes.