New Jersey Cops Took His Guns Because They Were Worried About His Wife's Mental Health

Elsid Aliaj says the seizure violated state law and the Second Amendment.

Last April, Elsid Aliaj's pregnant wife sought treatment for prenatal nausea at a medical clinic in Englewood, New Jersey. During the visit, she said something that made a health care provider worry that she was apt to harm herself, which led to an involuntary psychiatric evaluation at Bergen New Bridge Medical Center in Paramus. Four days later, she was released from the hospital based on a determination that she "did not meet the criteria for continued inpatient psychiatric hospitalization," meaning she was not deemed a threat to herself or others.

Because of that episode, police confiscated Aliaj's guns from his home in Fort Lee, and local prosecutors are seeking revocation of the state license that allows him to own firearms. You may wonder about the legal basis for disarming someone because of concerns about another person's mental health. So did Aliaj. But despite months of inquiries, he was unable to get a satisfying answer, which explains the federal lawsuit he filed on Monday with help from the Second Amendment Foundation (SAF).

Aliaj argues that local officials are violating state law and the U.S. Constitution by refusing to return his guns and trying to deprive him of his right to arms. "The actions by the Fort Lee Police Department and the Bergen County Prosecutor's Office are absolutely unconstitutional," says SAF Executive Director Adam Kraut. "Mr. Aliaj is a peaceable citizen and is not disqualified from owning or possessing firearms, yet the police department and prosecutor's office continue to infringe on his Second Amendment rights."

According to the complaint, Aliaj's wife, identified as "L.A.," is not a native English speaker, and her April 17 admission to New Bridge resulted from a "language-related misunderstanding." On April 21, she was released with a diagnosis of "adjustment disorder with depressed mood." Her records indicated no evidence that she posed a threat to herself, saying she was not "presenting" as "suicidal or psychotic." But at that point, police had already taken Aliaj's guns.

On the same day that L.A. was admitted, an Englewood police officer notified the Fort Lee Police Department (FLPO), which dispatched two officers to the couple's home that evening. They "instructed Aliaj to surrender his firearms because of L.A.'s involuntary admission," the complaint says. Although Aliaj was "bewildered" by that demand, he complied because he thought he would otherwise be arrested and therefore "had no choice but to cooperate." The cops seized a rifle, two handguns, magazines, and ammunition.

A few days after L.A. was released, Aliaj contacted the FLPO about recovering his property. He was referred to Amy West, a paralegal specialist at the Bergen County Prosecutor's Office (BCPO). "Since your wife was committed to New Bridge Medical Center, the Bergen County Prosecutor's office will not agree to the firearms being returned to your home," West emailed Aliaj in response to his inquiry. "The options available to you are to store in an offsite firearm storage facility, sell the firearms, destroy the firearms, or have a hearing to try and have the firearms returned to your home."

When Aliaj said he wanted a hearing, West told him that would not happen until "September or later" because "we have a lot of cases and the Courts are backed up with hearings/trials." A month later, frustrated by the delay, Aliaj asked West to explain the legal justification for keeping his guns. "This falls under the duty to warn law because your wife was involuntarily committed," she replied.

That claim was puzzling because the statute to which West referred addresses firearms owned by a "patient" who has been involuntarily committed to a psychiatric facility. It requires police to "ascertain whether the patient has been issued a firearms purchaser identification card, permit to purchase a handgun, or any other permit or license authorizing possession of a firearm." If police determine that "the patient" is legally disqualified from owning firearms, they are supposed to seek a court order revoking the relevant permits. The court then "may order the patient to surrender to the county prosecutor any firearm owned by or accessible to the patient."

The officers who took Aliaj's guns had no such order. Furthermore, the law says "a firearm surrendered or seized pursuant to this subsection which is not legally owned by the patient shall be immediately returned to the legal owner of the firearm if the legal owner submits a written request to the prosecutor attesting that the patient does not have access to the firearm."

Aliaj kept his guns in a safe that can be opened only with a passcode, biometric input, or a key. According to his complaint, he "has not shared the passcode or key to the safe with L.A., and only his biometric input is recognized by the safe." On June 23, after consulting with a lawyer, Aliaj sent West the "written request" described in the "duty to warn" law, attesting that his firearms "will be stored in a locked, metallic, fireproof safe" that his wife "cannot access." He added that "the firearms in question are only removed by me and remain under my control when not locked in the safe."

Three days later, having received no reply, Aliaj asked West "when I can arrange to come pick up my property." Since "the case is still pending," she replied, "you cannot pick up anything at this time."

In a July 17 email, Assistant Prosecutor David Aguirre suggested that Aliaj could help his case by supplying his wife's medical records. "With the records we will be able to determine if she is a danger to herself or the community," Aguirre wrote. "If we determine that she is not a danger, then we may be able to resolve the matter without filing motions." But "if you are not amenable to this option," he warned, "I will be
filing a motion to revoke your FPIC [firearms purchaser identification card] and a motion for your wife's medical records."

In other words, Aguirre not only refused to comply with the clear legal requirement that Aliaj's guns be "immediately returned" once he attested that his wife would not have access to them. The prosecutor seemed bent on preventing Aliaj from exercising his Second Amendment rights at all, even before seeing the medical records that he conceded could "resolve the matter."

In response to "Aguirre's illegal threats," the complaint says, Aliaj "initially agreed to
provide L.A.'s medical records." But "after consulting with counsel, Aliaj realized that he was legally entitled to the return of the Seized Property irrespective of the contents of L.A.'s medical records, and that Aguirre had no legal basis to condition the possible return of the Seized Property on Aliaj's furnishing of L.A.'s medical records." He therefore "decided not to provide the medical records in the face of Aguirre's coercion."

On September 11, Aliaj's attorney, Edward Andrew Paltzik, asked Aguirre to identify "the statutory or case authority" on which he was relying in demanding that Aliaj "furnish his wife's medical records in exchange for getting his constitutionally protected property returned." Aguirre said "the basis of the pending motion to revoke is that the State has concerns about weapons being present in the home when his wife is making statements about wanting to hurt herself." Since Aliaj "advised that Bergen New Bridge cleared her and deemed she was not a threat to herself or anyone else," Aguirre explained, "I told Mr. Aliaj that if I could get her medical records to substantiate his claim, the State's concerns may be assuaged."

Notably, the lawsuit says, Aguirre "was unable to invoke any legal authority for confiscating Aliaj's firearms; nor could he, because there is no such authority. The only 'authority' that he could concoct was the 'State's concerns'—which is not a legally recognized basis to confiscate and retain a citizen's firearms and ammunition [or] to revoke a FPIC."

That did not stop Aguirre from filing a motion to revoke Aliaj's FPIC, which he did the day after that exchange with Paltzik. Aguirre is also seeking orders requiring production of L.A.'s medical record and the sale of Aliaj's guns.

The lawsuit, which names Fort Lee Police Chief Matthew Hintze and Bergen County Prosecutor Mark Musella as defendants along with the FLPD and the BCPO, argues that they violated Aliaj's Second Amendment rights when they "unlawfully seized his constitutionally protected firearms, ammunition, and related items, refused to return
them pursuant to New Jersey statutory requirements, and then proceeded to extend what should have been at most a temporary constitutional infringement into a potentially permanent one by instigating the retaliatory Revocation Proceeding."

The defendants "have blatantly thumbed their nose at the clear precedent of the Supreme Court of the United States and will continue to do so absent court intervention," the complaint says. "A governmental entity simply may not prevent a peaceable, law-abiding individual from possessing handguns and other firearms in the home, full stop."

The officials Aliaj is suing evidently disagree, and I tried to ask them why. Hintze was unavailable for comment because his office was unstaffed on Election Day. I left a message with the BCPO and will update this post if I receive a reply.

"You can't be disarmed simply because of an association with someone," says SAF Executive Vice President Alan M. Gottlieb. "The fact that Mr. Aliaj's wife was committed to a medical facility has absolutely no bearing on his ability to own and possess firearms, period. It's a sad day when a peaceable citizen must retain attorneys to fight for their Second Amendment rights, although it should come as no surprise in New Jersey. This is a clear-cut case of constitutional infringement, and we fully expect a swift resolution."