Extreme Risk Protective Order Statute Discussion
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
The New Jersey Administrative Office of the Courts (AOC) has issued a proposed new rule to the Court Rules to effectuate the Emergent Preventive Order Statute that was recently enacted by the New Jersey legislature in 2018. This statute authorizes law-enforcement or any other interested party to make an application with the assistance of the county prosecutor’s office in the Superior Court before a judge for an Order authorizing the immediate seizure and removal of any and all weapons from a persons home even if that person has not been charged with any offense. It creates, and this rule establishes, the procedure which has to be followed. The interesting part of this rule is that the burden of proof the prosecutor or their application must satisfy before any Superior Curt Judge is the civil preponderance of evidence standard and the rules of evidence and criminal procedure shall not apply. In other words hearsay evidence can be used by the application in the affidavit in support of the exparte affidavit and Order to Show Cause pleading.
What does this mean? It means school teachers, principals, medical providers, family members, girlfriends boyfriends, or any other interested person can go to the county prosecutors office when the subject of the seizure request lives and communicate concern for an individuals welfare safety or that of the general community vis-à-vis a person‘s behavior and possession of weapons.
It enables the prosecutors office by way of an affidavit, even over the phone at night, accompanied by a search warrant, to go into a person’s home who has not been charged with a crime to seize any weapons that the person may have. It also creates a hearing mechanism by which the respondent, within 10 days has the ability to rebut why the gun seizure order shall not be made permanent. Again, this emergent application shall be based upon a preponderance of the evidence standard, and hearsay evidence can be used by the prosecutor, police or any applicants even on a phone call to the Superior Court judge who is on emergent duty. (The judge is instructed on such emergent phone applications to take notes of the terms of the phone affidavit and his/her decision and Order.) But it places the discretion with in the judges hands to make the final call. I believe this provision is for those emergent police chief calls, or school principal calls through the police department regarding statements about children bringing weapons to school, employees making statement about bringing guns back the job to threaten co-employees.
The other evidentiary threshold determinations are a judge has to make are based upon the existing statutory scheme and court rule authorizing a police chief to issue a fireman purchasing ID card and the return of any weapons after a domestic violence restraining order*** have been dismissed upon application of the prosecutor’s office. Specifically, that case law and court Rules require any court to address judge’s decision concerning mental health issues, physical health issues, any allegations, prior history of domestic violence, prior contempt of court issues, prior assault to conduct, and any other issues that are used when a court makes a determination regarding issuing a firearms purchasing ID card. For that matter, all of the other issues that come with the return of weapons post domestic violence restraining order dismissal, come into play as well. I have written about the interplay of domestic violence and the return of weapons and the firemen purchasing ID card issue and another blog.
*** [N.J.S.A. 2C: 25–21(d)1(b). Once a Temporary Domestic Violence Restraining Order has been issues against a person the local police in the town where the defendant resides has a legal obligation to go and seize any lawfully possessed weapons in that defendant’s possession. Then, if there are other criminal charges or a Final Restraining Order has been issues, the county prosecutors office will file an application with the trial court to have those weapons permanently forfeited. The trial court, before ruling on the forfeiture application or returning any weapons, has to make a determination if the defendant poses a threat to the public health, safety or welfare as outlined in the firearms purchasing ID statute identified at N.J.S.A. 2C: 58-3(c)(5).]
If the police have come into a defendants home and seize the weapon under this emergent order process please call my office if you would like to discuss this matter in greater detail. In all likelihood, it was your family, family doctor, or medical professional who reached out to the prosecutors office and raised initial concerns which they used to create facts to put in the affidavit upon which the judge relied to establish the initial seize order.