Temporary Extreme Risk Protective Order (TERPO)
Appellate Docket No.: A-1035-20
Decided July 14, 2021
In a recent published opinion, the Appellate Division of New Jersey reviewed a denial of a Final Extreme Risk Protective Order (FERPO) in light of respondent brandishing a handgun.
In the Matter of D.L.B., police received a report from a neighbor that respondent was brandishing a handgun. Body worn camera footage of the officer depicted the event, with the respondent claiming the gun was unloaded. Upon further investigation, respondent’s son was concerned of her possession of misuse of the firearm. It was also claimed that despite respondent not having a permit to carry the handgun, she kept it in her vehicle for protection.
This scenario led detectives to seek a Temporary Extreme Risk Protective Order (TERPO) as part of New Jersey’s “red flag law.” The municipal court granted the TERPO ex parte, and a plenary hearing was scheduled to determine whether a FERPO was necessary.
The trial court denied the FERPO and dissolved the TERPO, finding that respondent did not pose an immediate risk or danger to the anyone. The State appealed and the Appellate Division reversed and remanded for a new trial, finding that the trial court had failed to make appropriate findings of fact and conclusions of law.
New Jersey’s red flag law creates a two-stage process for issuing temporary and final orders to remove a person’s firearms and ammunition, firearms purchaser identification card, handgun purchase permit, and handgun carry permit. N.J.S.A. 2C:58-23 (authorizing TERPO); N.J.S.A. 2C:58-24 (authorizing FERPO). The court first decides, based on an ex parte documentary record, if it will issue a temporary order to remove firearms. See N.J.S.A. 2C:58-23. Then, after a plenary hearing, the court decides if it will issue a final order to remove firearms indefinitely. See N.J.S.A. 2C:58-24. The Act is loosely modeled on the process for obtaining temporary and final domestic violence restraining orders. See Administrative Directive #19-19: Guidelines for Extreme Risk Protective Orders (August 12, 2019).
Administrative Directive #19-19 and an Attorney General Directive discuss the Act and its background at length. See Attorney General, Law Enforcement Directive No. 2019-2 (Aug. 15, 2019) (AG Directive). A trial court is required to comply with the requirements of the directive and the AOC guidelines.
A family or household member or a law enforcement officer may petition the court for an order by “alleging that the respondent poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing or receiving a firearm.” N.J.S.A. 2C:58-23(a); N.J.S.A. 2C:58-21 (defining “petitioner” to mean “family or household member or law enforcement officer”). Persons who do not qualify as a “family or household member” must convince law enforcement to file a petition based on the evidence those persons present.
The petition shall include an affidavit presenting the factual grounds for the relief and shall provide available information about the respondent’s firearms and ammunition. N.J.S.A. 2C:58-23(b); see also Guideline 2(e).
Before deciding to issue a TERPO or FERPO, the statute requires a court to consider eight factors – whether the respondent:
(1) has any history of threats or acts of violence by the respondent directed toward self or others;
(2) has any history of use, attempted use, or threatened use of physical force by the respondent against another person;
(3) is the subject of a temporary or final restraining order or has violated a temporary or final restraining order issued pursuant to the “Prevention of Domestic Violence Act of 1991,” . . . ;
(4) is the subject of a temporary or final protective order or has violated a temporary or final protective order issued pursuant to the “Sexual Assault Survivor Protection Act of 2015,” . . . ;
(5) has any prior arrests, pending charges, or convictions for a violent indictable crime or disorderly persons offense, stalking offense pursuant to section 1 of . . . (C.2C:12-10), or domestic violence offense enumerated in section 3 of . . . (C.2C:25-19);
(6) has any prior arrests, pending charges, or convictions for any offense involving cruelty to animals or any history of acts involving cruelty to animals;
(7) has any history of drug or alcohol abuse and recovery from this abuse; or
(8) has recently acquired a firearm, ammunition, or other deadly weapon.
[N.J.S.A. 2C:58-23(f).]
Guideline 3(d) requires a court to consider three additional factors, based on the Act’s statement that the eight factors comprise a non-exclusive list, N.J.S.A. 2C:58-23(f), and the requirement that courts consider “any other relevant evidence” in deciding if it will issue a FERPO, N.J.S.A. 2C:58-24. See AOC Directive at 4-5 (discussing additional factors incorporated in AOC Guidelines). Those three factors pertain to whether the respondent:
(9) has recklessly used, displayed, or brandished a firearm;
(10) has an existing or previous extreme risk protective order issued against him or her; and
(11) has previously violated an extreme risk protective order issued against him or her.
[Guideline 3(d).]
Only if a court finds at least one of the eleven “behavioral” factors, then it “may consider,” Guideline 3(d) (regarding TERPO), Guideline 5(d) (regarding FERPO), four additional factors pertaining to a person’s mental health – whether the respondent:
(12) has any prior involuntary commitment in a hospital or treatment facility for persons with psychiatric disabilities;
(13) has received or is receiving mental health treatment;
(14) has complied or has failed to comply with any mental health treatment; and
(15) has received a diagnosis of a mental health disorder.
[Guideline 3(d).]
At both the TERPO and FERPO hearings, the county prosecutor (or his or her designee) shall produce “any available evidence,” including that related to the eight statutory factors. See N.J.S.A. 2C:58-23(f)
A finding of one or more of the factors may not be enough to support the issuance of a TERPO. The judge “shall issue” the TERPO only “if the court finds good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others by” possessing a firearm. N.J.S.A. 2C:58-23(e); see also Guideline 4(a).
And, consistent with State v. Hemenway, 239 N.J. 111, 136 (2019), the court “shall” also issue a search warrant upon a showing of probable cause, although the Act provides that a search warrant “shall” issue upon a lesser showing of good cause. Compare AG Directive at § 3.3, AOC Directive at 6, Guideline 4(e), and Guideline 6(d).
Within ten days after the petition’s filing, the Superior Court must hold a plenary hearing to decide if it will issue a FERPO. N.J.S.A. 2C:58-24; Guideline 5(a). Importantly, “[t]he rules governing admissibility of evidence at trial shall not apply to the presentation and consideration of information at the [FERPO] hearing.” Guideline 5(c).
The court shall issue the FERPO order if it finds “by a preponderance of the evidence at the hearing that the respondent poses a significant danger of bodily injury to the respondent’s self or others” by possessing a firearm. N.J.S.A. 2C:58-24(b).
A respondent may ask the court at any time to terminate the order, and the court “shall consider” all fifteen factors including “whether the respondent has received, or is receiving, mental health treatment.” Guideline 7; see also N.J.S.A. 2C:58-25(c). Until the court issues a further order, the FERPO remains in effect. Guideline 6(c).
If you or someone you know has been subject to a TERPO or FERPO, call the experienced attorneys at Hark & Hark today. There may be sufficient grounds to dispose of the TERPO or FERPO and have your guns returned to you.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing circumstances similar to those above, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Alloway Township, Carneys Point Township, Elmer Borough, Elsinboro Township, Lower Alloways Creek, Mannington Township. Oldmans Township, Penns Grove Borough, Pennsville Township, Pilesgrove Township, Pittsgrove Township, Quinton Township, Salem City, Upper Pittsgrove Township, and Woodstown Borough.