ANOTHER REVIEW OF NEW JERSEY’S “RED FLAG LAW” (FERPO / TERPO)
Appellate Docket No.: A-0075-23
Decided June 3, 2024
Submitted by New Jersey Domestic Violence 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In a recent unpublished opinion, the Appellate Division of New Jersey reviewed a granting of a Final Extreme Risk Protective Order (FERPO) in light of respondent requesting to the police to shoot him.
In the Matter of M.A.Z., on June 7, 2023, Brick Township Police Department received a welfare check request for M.A.Z. from his employer. Officers Fogarty and Miller were dispatched to M.A.Z.’s home because his employer reported substance abuse health concerns. Upon meeting M.A.Z., the officers observed his responses were slow. He explained he was depressed because his mother had passed away. M.A.Z. relayed he did not wish to harm himself or others and agreed to speak with a mental health professional. After the officers finished speaking with M.A.Z., Psychiatric Emergency Screening Services (PESS) was dispatched. When the officers later returned with the PESS screener, M.A.Z. was not home.
The following day, Officers Joseph McGrath and Thergsen responded to the scene of a head-on collision on Mantoloking Road. M.A.Z. had driven across the center line into an oncoming vehicle. The officers observed his speech was slow and slurred, and he had difficulty walking and standing. M.A.Z. denied drinking alcohol but admitted taking five or six “gummies.” No alcohol was found in his system. When asked regarding any medical condition, M.A.Z. reported taking no prescription medication but advised he had gout. After unsuccessfully completing the field sobriety tests, M.A.Z. stated, “[j]ust take me,” and was arrested for driving under the influence. Recognizing M.A.Z.’s address from his driver’s license, the officers learned M.A.Z. had not completed his PESS screening. When officers placed M.A.Z. in a patrol car, he stated, “Just shoot me. I don’t want to be here anymore,” and at headquarters told officers “to shoot him.”
Based on the belief M.A.Z. posed a danger to himself or others, McGrath applied for a Temporary Extreme Risk Protective Order (TERPO), which was entered prohibiting M.A.Z.’s possession of firearms and ammunition.
In August 2023, after a one-day hearing in which McGrath and M.A.Z. testified, the trial court issued a FERPO and an accompanying oral decision. The court found McGrath’s testimony credible that he heard M.A.Z. make multiple suicidal statements and had concerns for M.A.Z.’s and others’ safety. The court further found M.A.Z.’s testimony was contradictory, and he lacked accurate recollection. The court entered a FERPO finding the State sustained its burden by a preponderance of the evidence.
M.A.Z. appealed and the Appellate Division found the Court’s decision supported by the record and found no error in the entry of the FERPO.
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.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, 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 Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.
