ANOTHER REVIEW OF NEW JERSEY’S “RED FLAG LAW”
Appellate Docket No.: A-4327-19
Decided March 2, 2022
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In a recent unpublished opinion, the Appellate Division of New Jersey reviewed a granting of a Final Extreme Risk Protective Order (FERPO) in light of respondent being involved in a prior domestic violence incident and subsequently sending threatening text messages.
In the Matter of B.T.L., In 2015, police were dispatched to B.T.L.’s home. His teenage daughter told arriving officers she was scared because B.T.L. and his fiancé, J.N., were fighting. B.T.L. admitted the couple had been arguing on the back deck of the house. When officers noticed blood on his pants, B.T.L. claimed that J.N. broke a glass during the argument and he was cut on the shards. However, when officers later spoke with J.N. they noticed she was bleeding from a cut on her mouth. She was uncooperative and denied knowing the cause of her injury. J.N. subsequently said that during the argument B.T.L. struck her in the face. B.T.L. denied striking J.N. and claimed she attacked him. It was later determined he suffered a laceration on his thumb that required stitches.
B.T.L. was arrested and charged with simple assault. Ultimately, the charge was dismissed, and no restraining order was issued after J.N. testified at a hearing that she was the initial aggressor and that if she had not attacked B.T.L. he would not have needed to defend himself by hitting her. At the hearing in the present matter, B.T.L. testified that he had been abused by J.N. for six years and when she began striking him, he “felt like that was the appropriate time to defend myself. I will tell you that there was no rage involved, there was no anger. There was like, you know it was a one hit thing.”
In 2020, B.T.L. contacted police and informed them that his girlfriend, R.M.S., was at his home intoxicated and refusing to leave. A few hours later, K.L., the brother-in-law of R.M.S., contacted B.T.L. about R.M.S. having been transported to the hospital. He was angry that R.M.S. had been handcuffed and was in the hospital. He blamed B.T.L. for the situation and was under the mistaken impression that B.T.L. had assaulted R.M.S. B.T.L. sent threatening text messages to K.L., including threats in reference to using a firearm against K.L.
The police confiscated B.T.L.’s firearms and the detective successfully sought a Temporary Extreme Risk Protective Order (TERPO) from the municipal court, taking B.T.L.’s firearms and Firearms Purchaser ID (FID) card. A FERPO hearing was held, and the Court did not find B.T.L. credible with regard to the 2015 incident or the text messages, entering the FERPO against B.T.L. B.T.L. appealed and the Appellate Division affirmed, finding the court’s findings were supported by the evidence in the record and the judge’s credibility findings.
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.
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.
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.
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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