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RED FLAG LAWS: WHAT ARE THEY AND DO WE HAVE ONE IN NEW JERSEY?

The national debate about gun control includes the prospect of Congress taking up consideration of expanded background checks and “red flag” laws.  You might wonder what a “red flag” law is and how it may apply.  New Jersey has a red flag law called the “Extreme Risk Protective Order Act of 2018” and it is in the criminal code statutes at N.J.S. 2C:58-20.  This new law takes effect September 1, 2019.  The attorneys of Craig Annin & Baxter anticipate being on both sides of applications under the new statute.

This law provides for “extreme risk protective orders” if requested by a law enforcement agency, law enforcement officer, or a family or household member.  Such an order issued by a Court would direct the temporary seizure of any deadly weapon, firearm, or ammunition from someone who 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. 2C:58-23.

The procedure and requirements for such an order are set forth in the statute.

  • A petition for a temporary extreme risk protective order will include an affidavit setting forth the facts tending to establish the grounds of the petition, or the reason for believing that they exist, and, to the extent available, the number, types, physical description, and locations of any firearms and ammunition currently believed by the petitioner to be controlled or possessed by the respondent.
  • The court will not charge a fee to file the petition.
  • The court, before issuing a temporary extreme risk protective order, will examine under oath the petitioner and any witness the petitioner may produce. The court, rather than examine the petitioner and any witness, may rely on an affidavit submitted in support of the petition.
  • A judge will issue the order 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 having custody or control of, owning, possessing, purchasing, or receiving a firearm.

The County Prosecutor’s Office is directed to participate and provide the Court with information.

  • The county prosecutor or a designee of the county prosecutor must produce in an expedited manner any available evidence including, but not limited to, available evidence related to the factors set forth in this section, and the court must consider 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 under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et seq.);

 

  • (4) is the subject of a temporary or final protective order or has violated a temporary or final protective order issued under the “Sexual Assault Survivor Protection Act of 2015,” P.L.2015, c.147 (C.2C:14-13 et al.);

 

  • (5) has any prior arrests, pending charges, or convictions for a violent indictable crime or disorderly persons offense, stalking offense under section 1 of P.L.1992, c.209 (C.2C:12-10), or domestic violence offense enumerated in section 3 of P.L.1991, c.261 (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;

If an order has been issued under this procedure the subject of the order (the respondent)  shall be prohibited from having custody or control of, owning, purchasing, possessing, or receiving firearms or ammunition, and from securing or holding a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3, or a permit to carry a handgun pursuant to N.J.S.2C:58-4 during the period the protective order is in effect and shall order the respondent to surrender firearms and ammunition in the respondent’s custody or control, or which the respondent possesses or owns, and any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun held by the respondent in accordance with section 7 of P.L.2018, c.35 (C.2C:58-26). Any card or permit issued to the respondent shall be immediately revoked pursuant to subsection f. of N.J.S.2C:58-3.

An order issued under these provisions remains in effect until a further order is issued by the court.  It is provided to all law enforcement agencies in the State and must be enforced by any law enforcement officer in the State.

Prior to filing a petition with the court, a family or household member may request assistance from a State, county, or municipal law enforcement agency which shall advise the petitioner of the procedure for completing and signing a petition for a temporary extreme risk protective order. A law enforcement officer from the agency may assist the family or household member in preparing or filing the petition. This assistance may include, but not be limited to, providing information related to the factors set forth in subsection f. of this section, joining in the petition, referring the matter to another law enforcement agency for additional assistance, or filing the officer’s own petition with the court.

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