Zwicker, McKeon, Greenwald, Jasey, Murphy & Moriarty Bill to Keep Guns Away from Dangerous Persons Now Law

(TRENTON) – The Extreme Risk Protective Order Act of 2018 - which authorizes new protective orders against those who pose a significant danger by either possessing or purchasing a firearm – sponsored by Assembly members Andrew Zwicker, John McKeon, Majority Leader Lou Greenwald, Mila Jasey, Tim Eustace, Carol Murphy and Paul Moriarty has been signed into law.

The order prohibits the subject from possessing or purchasing a firearm or ammunition and from holding a firearms purchaser identification card, permit to purchase a handgun and permit to carry a firearm.

“This law provides a sensible process that protects the rights of lawful gun owners while allowing concerned family members to take action when there are ‘red flags’ that indicate a gun owner poses a serious risk to others,” said Zwicker (D-Somerset/Mercer/Middlesex/Hunterdon). “This is the right thing to do, and I’m certain it will save lives.”

The law (A-1217) establishes a process and procedures for obtaining a protective order against persons who pose a significant danger of bodily injury to themselves or others by possessing or purchasing a firearm.  

The order prohibits the subject of the order from possessing or purchasing a firearm or ammunition and from holding a firearms purchaser identification card, permit to purchase a handgun, and permit to carry a handgun.

A look at the law:

TEMPORARY EXTREME RISK PROTECTIVE ORDER

The law authorizes a family or household member or a law enforcement officer to file a petition for a temporary extreme risk protective order alleging that a person poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.

It specifically authorizes a family or household member or a law enforcement officer to file a petition in the Superior Court, in accordance with the Rules of Court, or in a state, county, or municipal law enforcement agency for a temporary extreme risk protective order alleging that a specific person, other than a law enforcement officer, poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.

In the case of a petition filed in a law enforcement agency, the law enforcement officer or employee receiving the petition is required to advise the petitioner of the procedure for completing and signing a petition.  The petition is to include an affidavit including the number, types, physical description, and locations of any firearms and ammunition the petitioner believes are controlled or possessed by the respondent. 

A petition for a temporary extreme risk protective order filed against a law enforcement officer is to be filed in the law enforcement agency in which the officer is employed.  The law enforcement officer or employee receiving the petition is required to advise the petitioner of the procedure for completing and signing a petition. 

Upon receipt of the petition, the officer’s employer is immediately required to initiate an internal affairs investigation.  The disposition of the internal affairs investigation is to immediately be served upon the county prosecutor, who is required to make a determination of whether to refer the matter to the courts.  The officer’s employer is required to take appropriate steps to implement any findings set forth in the disposition of the internal affairs investigation.  The law enforcement officer is to not be terminated during the pendency of the internal affairs investigation.

The law directs that a petition filed against any person who is not a law enforcement officer is to be heard by the Superior Court in an expedited manner. The court is to issue the protective order if it finds good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm. The court would not charge a fee to file the petition.

In order to assist the court in determining whether to issue a temporary extreme risk protection order, the county prosecutor is to produce, in an expedited manner, any available evidence. In deciding whether to issue the temporary protective order, the court would consider: whether the person has a history of threats or acts of violence directed toward self or others; a history of use, attempted use, or threatened use of physical force against another; a recent violation of a restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991 or a protective order issued pursuant to the Sexual Assault Survivor Protection Act of 2015; a conviction of a violent disorderly persons or petty disorderly persons offense, stalking offense, domestic violence offense, or an offense involving cruelty to animals; and a history of drug or alcohol abuse.

The law also authorizes the court to consider other factors related to whether the respondent poses an increased risk of violence, including information produced by the county prosecutor in an expedited manner as well as any other factors including, but not limited to, whether the person has a history of violating a restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991 or a protective order issued pursuant to the Sexual Assault Survivor Protection Act of 2015; prior arrests for a violent disorderly persons or petty disorderly persons offense, stalking, or domestic violence offense; and recent acquisitions of a firearm, ammunition, or other deadly weapon.

A temporary extreme risk protective order prohibits the subject of the order from having custody or control of, owning, purchasing, possessing, or receiving firearms or ammunition. It also prohibits the person from securing or holding a firearms purchaser identification card, a permit to purchase a handgun, or a permit to carry a handgun while the order is in effect. Under the order, the subject would be required to surrender firearms and ammunition, as well as the identification card or permits, which would be immediately revoked.

FINAL EXTREME RISK PROTECTIVE ORDER

The court is to consider whether a final extreme risk protection order should be issued during a hearing to be held within 10 days of the filing of the temporary extreme risk protection order. The court is to consider the same factors considered for a temporary extreme risk protection order. The final extreme risk protection order is to be issued if the court finds by a preponderance of the evidence that the person poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.

Upon request of the petitioner or respondent, at any time following the issuance of the final extreme risk protection order and after notice and a hearing, the court may terminate the order.  The court is to consider the same factors during the hearing that were considered for the temporary  extreme risk protection order, as well as any other relevant evidence, including whether the respondent has received, or is receiving, mental health treatment. If the respondent petitioned to terminate the final extreme risk protection order, the respondent bears the burden at the hearing of proving by a preponderance of the evidence that he or she no longer poses a significant danger of causing bodily injury to himself or herself or to others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.

SURRENDER PROVISIONS

A person against whom a temporary or final extreme risk protective order is issued is required to surrender to the local law enforcement agency or to surrender or sell to a federally licensed dealer all firearms and ammunition in the person’s custody or control, or which the person owns or possesses, and to surrender to law enforcement any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun the person holds.

The person can petition for the return of the firearms or ammunition after the final extreme risk protective order is terminated.  The agency is to return the firearms or ammunition within 30 days of the petition, unless the firearm has been reported stolen or the respondent is prohibited by law from possessing a firearm.  The person also may sell surrendered firearms or ammunition to a licensed dealer.  A law enforcement agency holding a surrendered firearm or ammunition a year after the order is terminated is authorized to destroy the firearm or ammunition in accordance with agency policies.

PETITION TO TERMINATE EXTREME RISK PROTECTIVE ORDER

The subject of an order has the opportunity to have an order terminated. The subject is required to prove at a hearing, by a preponderance of the evidence, that he or she no longer poses a significant danger of causing bodily injury to self or another by having custody or control of, owning, possessing, purchasing, or receiving a firearm.

CONTEMPT OF AN EXTREME RISK PROTECTIVE ORDER

Under the law, a respondent who is in contempt of an extreme risk protective order is to be arrested.  If a person alleges that a respondent has committed contempt of an extreme risk protective order but the facts are insufficient to establish probable cause to arrest the respondent, a law enforcement officer shall advise the petitioner of the procedure for completing and signing a criminal complaint alleging a person is in contempt of an extreme risk protective order.

ELECTRONIC CENTRAL REGISTRY

The law further requires the Administrative Office of the Courts to include all persons who have had a final extreme risk protective order entered against them, and all persons who have been charged with a violation of a temporary or final extreme risk protective order in an electronic central registry created and maintained by the Administrative Office of the Courts.

These records are to be kept confidential and released only to a police or other law enforcement agency investigating a report of a crime, offense, or act of domestic violence, or conducting a background investigation involving a person’s application for a firearms purchaser identification card or permit to purchase a handgun or employment as a police or law enforcement officer, or for any other purpose authorized by law or the Supreme Court of the state of New Jersey. The law further provides that a respondent’s information, other than information related to a violation of a temporary or final extreme risk protection order, are to be removed from the registry upon the termination of the extreme risk protective order.

PENALTIES

A person who violates a temporary or final extreme risk protection order is guilty of a fourth degree crime, which is punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both. 

A person subject to a temporary or final extreme risk protection order who purchases, acquires, owns, possesses, or controls a firearm or ammunition commits a crime of the third degree, which is punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.

The subject of an order also is disqualified from obtaining a firearms purchaser identification card or permit to purchase a handgun.