McKeon, Greenwald, Jasey, Eustace, Zwicker, Murphy & Moriarty Bill to Keep Guns Away from Dangerous Persons Approved by Assembly

Extreme Risk Protective Order Act of 2018 Advances

(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 Democrats John McKeon, Majority Leader Lou Greenwald, Mila Jasey, Tim Eustace, Andrew Zwicker, Carol Murphy and Paul Moriarty was approved 59-13-5 Monday by the Assembly.

The order would prohibit 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.

“We’ve seen too many ‘what ifs’ when it comes to these mass shootings, often centered around the question of why didn’t somebody do something to take guns away from someone who poses a danger,” said McKeon (D-Essex/Morris). “This bill makes it easier to accomplish that goal and, ultimately, protect our communities and our children. The status quo doesn’t work. We need new approaches that give authorities a real chance to keep guns away from individuals who pose a threat.  It’s common sense.”

“This is the right approach to reducing gun violence,” said Greenwald (D-Camden/Burlington). “We’re respecting Second Amendment rights, while taking steps to protect the community through a fair and just process. We’ve heard too many stories about families who couldn’t do anything despite red flags being raised. With this bill, we change that for the better.”

“We need to do more to protect children and our communities from the scourge of gun violence, and this is a creative and thoughtful approach,” said Jasey (D-Essex/Morris). “We will take steps to take guns away from those who pose a danger to others, but also to themselves. It’s a smart way to keep communities safe.”

“We need to do more to keep guns away from those who pose a threat to themselves or their community,” said Eustace (D-Bergen/Passaic). “This idea carefully lays out a fair and just process while putting safety first.”

“This bill 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.”

“A fair and just process for keeping communities safe is common sense,” said Murphy (D-Burlington). “We need to improve protections and improve gun safety. This is a very reasonable approach.”

“The current system isn’t working,” said Moriarty (D-Gloucester/Camden). “Too many times we’ve asked what if? We need creative solutions that improve safety.”

The bill (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 would prohibit 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 bill:

TEMPORARY EXTREME RISK PROTECTIVE ORDER

The bill 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 bill 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 bill 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.

EXTREME RISK PROTECTIVE ORDER

The temporary extreme risk protective order is to remain in effect until the court considers whether a one-year extreme risk protective order should be issued. A hearing for an extreme risk protective order would be held within 10 days of the filing of a petition for a temporary order. At the hearing, the court is to consider the same factors considered for a temporary order. The one-year order is to be issued if the court finds by a preponderance of the evidence at the hearing 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, and is to expire one year following the date of entry of the order.

EXTENSION OF EXTREME RISK PROTECTIVE ORDER

The one-year order may be extended for another year if requested by the family or household member or law enforcement officer any time within three months of the expiration of the current protective order and upon notice to the respondent and a hearing. The court is required to make the same findings, by a preponderance of the evidence, as required for granting the initial one-year order.

SURRENDER PROVISIONS

A person against whom a temporary extreme risk protective order or 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 within 30 days before the order expires with certain exceptions. The person also may sell the firearms or ammunition to a licensed dealer. A law enforcement agency holding a surrendered firearm or ammunition a year after the order expires 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 one 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 bill, 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.

DOMESTIC VIOLENCE CENTRAL REGISTRY

The bill further requires the Administrative Office of the Courts to include in the Domestic Violence Central Registry 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 extreme risk protective order or an extreme risk protective order. These records are to be kept confidential and released only to authorized entities which also are required to keep confidential the information and are prohibited from disseminating it for any reason other than as authorized by law.  The bill 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 expiration of the extreme risk protective order.

PENALTIES

A person subject to an extreme risk protective order who violates the order commits a crime of the fourth degree. Fourth degree crimes are punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both.

A person who is the subject of an extreme risk protective order who purchases, acquires, owns, possesses, or controls a firearm or ammunition commits a crime of the third degree. Third degree crimes are 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.