Extreme Risk Protective Order Act of 2018 Advances
(TRENTON) – Assemblyman John McKeon’s Extreme Risk Protective Order Act of 2018, which allows for protective orders against those who pose a significant danger by either possessing or purchasing a firearm, was advanced Wednesday by the Assembly Judiciary Committee.
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.”
The bill (A-1217) specifically authorizes a family member or a police officer to file a petition for a temporary extreme risk protective order with the Superior Court alleging that a specific person poses a significant danger of bodily injury to him or herself or others by having custody or control of, owning, possessing, purchasing or receiving a firearm. The petition is to include an affidavit including the number, types, physical description and location of any firearms and ammunition the petitioner believes are possessed by the respondent.
The bill directs the court to hear the petition in an expedited manner, and the court would issue a protective order if it finds there is good cause to believe that the respondent poses an immediate and present danger of causing harm to themselves or others by having a firearm.
In deciding whether to issue the protective order, the bill requires the court to consider evidence of whether the person has:
· a history of threats or acts of violence directed toward him or herself 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 of 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 evidence of an increased risk of violence, 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 offenses; and
· recent acquisitions of a firearm, ammunition, or another deadly weapon.
“By now, we know all the red flags, and heard all the reasons why a gun couldn’t be taken away from an unstable person,” McKeon said. “This bill answers that concern by setting forth a clear and equitable process to protect our communities and ensure due process. We take away the risk while opening the door to get the disturbed person the help they need. It’s a smart and fair.”
A temporary extreme risk protective order is to prohibit the subject of the order from having custody or control of, owning, purchasing, possessing, or receiving firearms or ammunition.
It also is to prohibit 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 revoked.
The temporary extreme risk protective order is to remain in effect until the Family Court considers whether a one-year extreme risk protective order should be issued. After a 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 subject of the temporary 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.
The one-year order may be extended for another year if requested by the family member or law enforcement officer anytime within three months of the expiration of the current protective order and upon notice to the subject 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.
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 a federally licensed dealer all firearms and ammunition in the person’s custody or control, or which the person owns or possesses, and any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun the person holds. The person can petition for return of the firearm within 30 days before the order expires with certain exceptions. They 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.
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 the person 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.
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.
The bill further requires the Administrative Office of the Courts to include in the Domestic Violence Central Registry of all persons who have had extreme risk protective orders entered against them, and all persons who have been charged with a violation of 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 authorized.
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.