ANOTHER REVIEW OF NEW JERSEY’S “RED FLAG LAW”
Appellate Docket No.: A-3694-20
Decided September 30, 2022
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed a granting of a Final Extreme Risk Protective Order (FERPO) in light of respondent threatening to harm his dog and commit suicide.
In the Matter of J.E.., on October 8, 2020, a Psychiatric Emergency Screening Service (PESS) crisis worker contacted the Manchester Township police department (MPD) regarding sixty-nine-year-old J.E.’s suicidal statements. J.E. told the crisis worker he was sitting in a field and was going to kill his dog and then himself. In addition, J.E. stated he had guns and bows and arrows at his home. PESS notified the MPD that their conversation with J.E. constituted a “credible threat.”
After receiving this information, MPD “pinged” J.E.’s location, which was in Plumsted Township. Police were dispatched to that location and J.E.’s home in Manchester Township, where he was found. J.E. admitted to the officers that he made suicidal statements to the PESS crisis worker. One of the officers spoke to J.E.’s wife, who was at the residence. She had “great concerns for her [spouse] because his behavior lately had been different” and “[h]e was telling her things that she was going to need to know if he wasn’t there.” J.E.’s wife also mentioned she was having an affair with a neighbor and expressed concerns for herself, the neighbor, and J.E. in case he ever found out about it.
J.E. had a “significant amount” of firearms and ammunition in the house, which he voluntarily surrendered to the MPD, along with his Firearms Purchaser Identification Card (FPIC). Thereafter, J.E. consensually was transported to Community Medical Center by the police. A municipal court judge, finding J.E. posed an immediate threat and present danger of causing bodily injury to himself or others through use of a firearm, entered a temporary extreme risk protective order (TERPO) against J.E. The TERPO prohibited J.E. from owning, purchasing, possessing or receiving firearms, ammunition, a FPIC, a permit to purchase a handgun, or a permit to carry a handgun. The judge considered J.E. was undergoing mental health treatment at the time.
At the hearing, the investigating officer concluded respondent was a danger to himself and others if he were able to own and possess firearms. The officer was found credible and, after applying the factors, the Court entered a final extreme risk protective order (FERPO) against respondent.
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 is involved with a firearms issue, or has questions with regard to TERPO, FERPO, or criminal and domestic violence activity that prohibits the ownership and possession of firearms, contact the experienced gun lawyers at Hark & Hark today. We ensure gun ownership rights are protected and preserved.
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