Bill Text: NJ A5285 | 2022-2023 | Regular Session | Amended

---

Bill Title: Requires copies of certain law enforcement records to be provided to victims of domestic violence upon request.

Spectrum: Moderate Partisan Bill (Democrat 10-3)

Status: (Passed) 2024-01-16 - Approved P.L.2023, c.322. [A5285 Detail]

Download: New_Jersey-2022-A5285-Amended.html

---

[Second Reprint]

ASSEMBLY, No. 5285

STATE OF NEW JERSEY

220th LEGISLATURE

 

INTRODUCED FEBRUARY 28, 2023

 

 

Sponsored by:

Assemblyman  LOUIS D. GREENWALD

District 6 (Burlington and Camden)

Assemblywoman  SHAMA A. HAIDER

District 37 (Bergen)

Assemblywoman  YVONNE LOPEZ

District 19 (Middlesex)

 

Co-Sponsored by:

Assemblywoman Murphy and Assemblyman Stanley

 

 

 

SYNOPSIS

     Requires copies of certain law enforcement records to be provided to victims of domestic violence upon request.

 

CURRENT VERSION OF TEXT

     As reported by the Assembly Appropriations Committee on March 23, 2023, with amendments.

  

An Act concerning victims of domestic violence and supplementing and amending P.L.1991, c.261.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

      1.   (New section)  a.  ¹[Within] In addition to any rights to access records provided pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), commonly known as the open public records act, ²or the Rules of Court,² within¹  10 calendar days of the request of a victim of domestic violence or the victim's legal representative, a law enforcement agency ¹with primary responsibility for investigating a complaint filed pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.)¹ shall provide at no cost to the victim or victim's legal representative copies of law enforcement records ¹enumerated in this section¹ relating to ¹[an] the alleged¹ act of domestic violence ¹[reported to the law enforcement agency.  If] ²If release of the records would jeopardize an ongoing criminal investigation or the safety of any person, the records shall either be redacted such that release to the victim would not jeopardize an ongoing criminal investigation or the safety of any person, or released pursuant to a protective order issued pursuant to subsection b. of this section² .  Except as otherwise provided in this section, if¹ the law enforcement agency is unable to produce a copy of a requested record within the 10-day-period, a copy of the record shall be provided to the victim or victim's representative within 24 hours after the record becomes available.  The record shall be provided electronically or in hard copy paper form, in accordance with the request of the victim or victim's representative.  The records shall be certified pursuant to New Jersey Rules of Evidence ¹as the law enforcement agency's business records¹ .

      A request may be made for a copy of any of the following records related to ¹[an] the^{1 2}alleged² act of domestic violence ²[¹before the court¹] which is the subject of a complaint filed pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an act of domestic violence relating to a previous complaint filed pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) involving both parties² :

      (1)  photographs taken by a law enforcement officer;

      (2)  law enforcement officer body ¹worn¹ camera or dashboard camera footage²[, provided the footage does not implicate the identity or statements of a third-party witness]²;

      (3)  9-1-1 transcript or recording²[, provided the transcript or recording does not implicate the identity or statements of a third-party

witness]²; and

      (4)  contents of the police report, as deemed appropriate by the law enforcement agency ²[, provided the contents of the report do not implicate or contain the identity or statements of a third-party witness or jeopardize an ongoing criminal investigation]².

      ²[In providing copies of the requested law enforcement records, the law enforcement agency may redact the statements of third-party witnesses if production of the information would either jeopardize an ongoing criminal investigation or could jeopardize the safety of any third-party.]²  If the law enforcement agency is unable to produce a copy of a requested record within the 10-day-period, ²and the court does not reschedule the hearing to be conducted pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29), upon the request of the victim,² the law enforcement agency ²[¹,]² shall make ²at least one of² the officers primarily responsible for investigating the complaint available for the hearing.  The law enforcement agency¹ may request additional time from the court to redact the documents ¹[.  A request for additional time to produce the records shall be made in writing] by submitting a written request¹ to the court with notice to the victim or victim's legal representative. ¹The court shall approve the written request without a hearing or additional proceedings, unless good cause exists to deny the additional time requested.¹ If granted additional time by the court, the law enforcement agency shall provide a copy of the records to the victim or victim's legal representative within 24 hours after the record becomes available.

      b.   The Family Part of the Chancery Division of the Superior Court shall have jurisdiction to enforce the victim or victim's legal representative's request for copies of law enforcement records pursuant to this section, and to ¹[compel production of the requested records from the law enforcement agency by issuing an order to show cause to the law enforcement agency] issue such protective orders as may be appropriate to ²[ensure that information is disclosed only to the extent required for conduct related to the complaint or a related action or proceeding involving the parties to the complaint.¹ ] set forth terms and conditions authorizing or limiting disclosure or use to the extent warranted.  Dissemination of copies of law enforcement records in violation of a protective order issued pursuant to this subsection may be subject to prosecution for harassment pursuant to N.J.S.2C:33-4; cyber-harassment pursuant to section 1 of P.L.2013, c.272 (C.2C:33-4.1); invasion of privacy pursuant to N.J.S.2C:14-9; or any other applicable criminal law².

      c.   ¹[Nothing in this section shall be construed as superseding the right of a victim to access records pursuant to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), commonly known as the open public records act.

      d.]¹           A victim of domestic violence who is seeking to access law enforcement agency records but who is not seeking other relief in the Family Part of the Chancery Division of the Superior Court may enforce their right of access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) on an expedited basis. The victim shall not be required to complete a formal open public records act request form to access the records.

 

     2.    Section 13 of P.L.1991, c.261 (C.2C:25-29) is amended to read as follows:

     13.  a.  [A]  Except as otherwise provided in this subsection, a hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere.  A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.) has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.  If there are law enforcement records related to an incident which is the subject of a complaint or the domestic violence history described in the complaint, and the plaintiff has requested the records, the court shall grant plaintiff's request for an adjournment if reasonably needed to collect evidence contained in the law enforcement records.  ¹[The court may grant the plaintiff's request for an adjournment of up to 14 calendar days to provide the plaintiff additional time to seek production of records from a law enforcement agency pursuant to section 1 of P.L.     , c.    (C.        ) (pending before the Legislature as this bill).]¹  If the plaintiff has requested records from a law enforcement agency pursuant to section 1 of P.L.     , c.    (C.        ) (pending before the Legislature as this bill), but has not received the records as of the date of the original or rescheduled hearing, the law enforcement agency's failure to provide the requested records shall be noted on the record prior to the court making a final determination on the request for restraints.  The ¹[court] absence of law enforcement records¹ shall not ¹[draw a negative inference if: a plaintiff has requested, but not received, records pursuant to this section; the production of records is incomplete; or the plaintiff did not report an act of domestic violence to law enforcement] be a basis to deny relief pursuant to this section¹ .  At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence. 

     The court shall consider but not be limited to the following factors:

     (1)   The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

     (2)   The existence of immediate danger to person or property;

     (3)   The financial circumstances of the plaintiff and defendant;

     (4)   The best interests of the victim and any child;

     (5)   In determining custody and parenting time the protection of the victim's safety; and

     (6)   The existence of a verifiable order of protection from another jurisdiction.

     An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person.  The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form.  In addition, where a temporary or final order has been issued pursuant to this act, no party shall be ordered to participate in mediation on the issue of custody or parenting time.

     b.    In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse.  In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years, whichever is greater. The order shall require the immediate surrender of any firearm or other weapon belonging to the defendant.  The order shall include notice to the defendant of the penalties for a violation of any provision of the order, including but not limited to the penalties for contempt of court and unlawful possession of a firearm or other weapon pursuant to N.J.S.2C:39-5.

     A law enforcement officer shall accompany the defendant, or may proceed without the defendant if necessary, to any place where any firearm or other weapon belonging to the defendant is located to ensure that the defendant does not gain access to any firearm or other weapon, and a law enforcement officer shall take custody of any firearm or other weapon belonging to the defendant.  If the order prohibits the defendant from returning to the scene of domestic violence or other place where firearms or other weapons belonging to the defendant are located, any firearm or other weapon located there shall be seized by a law enforcement officer.  The provisions of this subsection requiring the surrender or removal of a firearm, card, or permit shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.  At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief: 

     (1)   An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act. 

     (2)   An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties.  This order shall not in any manner affect title or interest to any real property held by either party or both jointly.  If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing. 

     (3)   An order providing for parenting time.  The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant.  Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.

     (a)   The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent's custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order.  Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious.

     (b)   The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant's access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.

     (4)   An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.  The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Office for any and all compensation paid by the Victims of Crime Compensation Office directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.

     (5)   An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling.  The court may order the defendant to pay for the professional counseling.  No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.

     (6)   An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

     (7)   An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

     (8)   An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.

     (9)   An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

     (10)  An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any.  An ongoing obligation of support shall be determined at a later date pursuant to applicable law.

     (11)  An order awarding temporary custody of a minor child.  The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.

     (12)  An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued.  This order shall be restricted in duration.

     (13)  (Deleted by amendment, P.L.1995, c.242).

     (14)  An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.

     (15)  An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.

     (16)  In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.  The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

     (17)  An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.  Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L.1992, c.209 (C.2C:12-10).

     (18)  An order requiring the defendant to undergo a psychiatric evaluation.

     (19)  An order directing the possession of any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. Where a person has abused or threatened to abuse such animal, there shall be a presumption that possession of the animal shall be awarded to the non-abusive party.

     c.     Notice of orders issued pursuant to this section shall be sent by the clerk of the Family Part of the Chancery Division of the Superior Court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency.

     d.    Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based. 

     e.     Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry. 

     ¹f.   ²A final judgment rendered in favor of the State in any criminal proceeding brought pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.) shall estop the defendant from denying the same conduct in any proceeding brought pursuant to this section.

     g.²  In connection with a pending complaint filed with the Superior Court, Chancery Division, Family Part, pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.), a party to the complaint may request the release or unsealing of expunged records, or sealed records under prior law, or prior arrests or convictions related to previous complaints filed pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) involving both parties.

     ²[g.] h.²     Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any party, county prosecutor, Criminal Division of the Superior Court, or the Attorney General when requested for use in conjunction with proceedings related to any of the following matters: 

     (1)   a temporary or final restraining order or a weapons forfeiture complaint filed in the Superior Court, Chancery Division, Family Part, pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.); and

     (2)   a temporary or final extreme risk protection order complaint filed in the Superior Court pursuant to the "Extreme Risk Protective Order Act of 2018," P.L.2018, c.35 (C.2C:58-20 et al.).¹

(cf: P.L.2016, c.91, s.3)

 

      3.   This act shall take effect ¹[immediately] on the first day of the fourth month next following the date of enactment, but the Attorney General and the Administrative Office of the Courts may take such anticipatory action prior to the effective date as needed to effectuate the provisions of this act¹.