Bill Text: NJ S2238 | 2018-2019 | Regular Session | Introduced
Bill Title: Allows family members, law enforcement officers, and certain school employees to file court order for seizure of firearms when person or student poses threat of harm to self or others.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-03-08 - Introduced in the Senate, Referred to Senate Law and Public Safety Committee [S2238 Detail]
Download: New_Jersey-2018-S2238-Introduced.html
Sponsored by:
Senator VIN GOPAL
District 11 (Monmouth)
SYNOPSIS
Allows family members, law enforcement officers, and certain school employees to file court order for seizure of firearms when person or student poses threat of harm to self or others.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning possession of firearms, supplementing Title 2C of the New Jersey statutes, and amending P.L.1979, c.179.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) As used in this act:
a. "Extreme risk protection order" means an ex parte temporary order or a final order granted pursuant to P.L , c. (C. ) (pending before the Legislature as this bill) to remove firearms from a respondent's possession.
b. "Family or household member" means any person who:
(1) is related by blood, marriage, or adoption to the respondent;
(2) is dating the respondent;
(3) has a child in common with the respondent, regardless of whether the person has been married to the respondent or has lived or cohabitated with the respondent at any time;
(4) resides or has resided with the respondent within the past year;
(5) is a domestic partner of the respondent;
(6) has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren; and
(7) is acting or has acted as the respondent's legal guardian.
c. "Petitioner" means the person who petitions for an extreme risk protection order pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).
d. "Respondent" means a person against whom a proceeding for an extreme risk protection order has been commenced.
2. (New section) a. A petition for an extreme risk protection order may be filed in the Superior Court of the county in which the petitioner or respondent resides by a law enforcement agency, a family or household member as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), or an employee of a high school or institution of higher education which the respondent attended for at least six months prior to the filing date of the petition.
b. The petition shall assert that the respondent poses a significant danger of causing personal injury to self or others by having custody or control of a firearm, or purchasing, possessing, or receiving a firearm. The petition shall be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent.
The petition also shall identify the number, types, and locations of any firearms the petitioner believes to be in the respondent's current ownership, possession, custody, or control.
c. The court shall not delay granting relief because of the existence of a pending action between the parties or the necessity of verifying the terms of an existing order. A petition for an extreme risk protection order may be granted whether or not there is a pending action between the parties.
d. A law enforcement agency that submits a petition pursuant to this section shall make a good faith effort to provide notice to a family or household member of the respondent and to any known third party who may be at risk of violence. The notice shall state that the law enforcement agency intends to petition the court for an extreme risk protection order or has already done so, and include referrals to appropriate resources, including mental health, domestic violence, and counseling resources.
e. A petitioner's address may be omitted from all documents filed with the court if the petition states that disclosure of the address would risk harm to the petitioner or any member of the petitioner's family or household. A petitioner who does not disclose an address pursuant to this subsection shall designate an alternative address at which the respondent may serve notice of any motions.
If a petitioner alleges in an affidavit or a pleading under oath that the health, safety, or liberty of the petitioner would be jeopardized by disclosure of specific identifying information, including the petitioner's name, that information shall be sealed and may not be disclosed to the respondent or the public.
f. The court shall order a hearing to be held no later than 14 days following the date of receiving the petition and issue a notice of the hearing to the respondent.
g. The court may issue an ex parte extreme risk protection order pending the hearing ordered under subsection f. of this section.
h. Upon a hearing, the court shall issue an extreme risk protection order for a period of one year if the court finds by a preponderance of the evidence that the respondent poses a significant danger of causing personal injury to self or others by having a firearm in the respondent's custody or control, or by purchasing, possessing, or receiving a firearm. In determining whether grounds for an extreme risk protection order exist, the court may consider any relevant evidence including, but not limited to, the following:
(1) a recent act or threat of violence by the respondent against self or others, whether or not the act or threat of violence involves a firearm;
(2) a pattern of acts or threats of violence by the respondent within the past 12 months;
(3) any dangerous mental health issues of the respondent;
(4) a previous or existing extreme risk protection order issued against the respondent;
(5) a violation of a previous or existing extreme risk protection order issued against the respondent;
(6) the respondent's ownership, access to, or intent to possess firearms;
(7) the unlawful or reckless use, display, or brandishing of a firearm by the respondent;
(8) the history of use, attempted use, or threatened use of physical force by the respondent against another person, or the respondent's history of stalking another person;
(9) corroborated evidence of the abuse of controlled dangerous substances or alcohol by the respondent;
(10) evidence of recent acquisition of firearms by the respondent; and
(11) whether the respondent is subject to or obtains a restraining order granted pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.).
i. In determining whether grounds for an extreme risk protection order exist, the court may:
(1) examine under oath the petitioner, the respondent, and any witnesses they may produce, or, in lieu of examination, consider sworn affidavits of the petitioner, the respondent, and any witnesses they may produce;
(2) ensure that a reasonable search has been conducted for criminal history records related to the respondent; and
(3) consider whether a mental health evaluation or chemical dependency evaluation is appropriate and order an evaluation if appropriate.
3. (New section) a. An extreme risk protection order issued pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall include:
(1) a statement of the grounds supporting the issuance of the order;
(2) the date and time the order was issued;
(3) the date and time the order expires;
(4) a statement as to whether a mental health evaluation or chemical dependency evaluation of the respondent is required;
(5) the address of the court in which any responsive pleading should be filed; and
(6) a description of the requirements for relinquishment of firearms under section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. The court shall inform the respondent in writing that the respondent is entitled to request termination of the order in the manner prescribed by section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill). The court shall provide the respondent with a form to request a termination hearing.
c. A court that declines to issue an extreme risk protection order shall state the particular reasons for denying the order.
4. (New section) a. The respondent may submit a written request for a hearing to terminate an extreme risk protection order issued pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) after the order has been in effect for one year. The respondent may submit only one written request per year.
b. The court shall set a date for a hearing upon receipt of the request for a hearing to terminate an extreme risk protection order. The hearing shall occur no sooner than 14 and no later than 30 days from the date of service of the request.
c. The respondent shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger of causing personal injury to self or others by having a firearm in the respondent's custody or control, or by purchasing, possessing, or receiving a firearm. The court may consider any relevant evidence, including evidence established in subsection h. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).
d. The court shall terminate the extreme risk protection order after the hearing upon finding that the respondent has satisfied the burden established pursuant to subsection c. of this section. The court shall notify the petitioner of the impending expiration of an extreme risk protection order
e. A law enforcement agency, a family or household member as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), or an employee of a high school or institution of higher education, may request, by motion, a renewal of an extreme risk protection order at any time before the extreme risk protection order expires. Upon receipt of the motion to renew, the court shall order a hearing to be held at least 14 days from the date of the motion.
f. In determining whether to renew an extreme risk protection order, the court shall consider all relevant evidence presented by the petitioner and pursuant to the procedure established in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).
The court may renew the order upon a finding of a preponderance of the evidence that the requirements for issuance of an extreme risk protection order as provided in section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) continue to be satisfied. However, if, after notice, the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested renewal.
g. A renewal of an extreme risk protection order shall be effective for one year and shall be subject to termination as provided in this section.
5. (New section) a. Upon issuance of any extreme risk protection or ex parte extreme risk protection order pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), the court shall order the respondent to arrange for the immediate surrender any firearm, firearms purchaser identification card, or permit to purchase a handgun possessed by the respondent to the law enforcement agency of the municipality in which the respondent resides or, if the municipality does not have a law enforcement agency, the Superintendent of State Police.
The respondent may arrange to sell any surrendered firearm to a licensed retail dealer of firearms who shall be authorized to take possession of that purchased firearm from the law enforcement agency to which it was surrendered.
The court shall establish a process for notifying the appropriate authorities of an extreme risk protection or ex parte extreme risk protection order. A law enforcement officer accepting a surrendered firearm shall provide the respondent with a receipt listing the date of surrender, the name of respondent, and items that have been surrendered, including the serial number, manufacturer, and model of the surrendered firearm. The respondent shall provide a copy of this receipt to the prosecutor within 48 hours of service of the order, and shall attest that any firearms owned or possessed at the time of the order have been transferred in accordance with this section and that the respondent currently does not possess any firearms.
If the court, upon motion of the prosecutor, finds probable cause that the respondent has failed to surrender any firearm, card, or permit, the court may order a search for and removal of these items at any location where the court has reasonable cause to believe these items are located. The court shall state with specificity the reasons and the scope of the search and seizure authorized by the order.
A firearm surrendered or seized pursuant to this subsection which is not legally owned by the respondent shall be immediately returned to the legal owner if the legal owner submits a written request to the prosecutor and attests that the respondent does not have access to the firearm.
A law enforcement officer or agency shall not be held liable in any civil action brought by any person for failing to learn of, locate, or seize a firearm pursuant to this subsection.
b. The Attorney General shall establish guidelines regarding the acceptance, storage, and return of firearms required to be surrendered or seized pursuant to this section.
c. If an extreme risk protection order is terminated or expires without renewal, a law enforcement agency holding any firearm that has been surrendered pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall return any surrendered firearm requested by a respondent after confirming, through a criminal history record background check, that the respondent is currently eligible to own or possess firearms and is not subject to any of the disabilities established in subsection c. of N.J.S.2C:58-3.
6. (New section) Any person who files a petition pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) knowing the information in the petition to be materially false, or with intent to harass the respondent, is guilty of a crime of the third degree pursuant to subsection b. of N.J.S.2C:28-7
7. Section 6 of P.L.1979, c.179 (C.2C:39-7) is amended to read as follows:
6. Certain Persons Not to Have Weapons.
a. Except as provided in subsection b. of this section, any person, having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S.2C:16-1 or endangering the welfare of a child pursuant to N.J.S.2C:24-4, whether or not armed with or having in his possession any weapon enumerated in subsection r. of N.J.S.2C:39-1, or any person convicted of a crime pursuant to the provisions of N.J.S.2C:39-3, N.J.S.2C:39-4 or N.J.S.2C:39-9, or any person who has ever been committed for a mental disorder to any hospital, mental institution or sanitarium unless he possesses a certificate of a medical doctor or psychiatrist licensed to practice in New Jersey or other satisfactory proof that he is no longer suffering from a mental disorder which interferes with or handicaps him in the handling of a firearm, or any person who has been convicted of other than a disorderly persons or petty disorderly persons offense for the unlawful use, possession or sale of a controlled dangerous substance as defined in N.J.S.2C:35-2 who purchases, owns, possesses or controls any of the said weapons is guilty of a crime of the fourth degree.
b. (1) A person having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S.2C:16-1, endangering the welfare of a child pursuant to N.J.S.2C:24-4, stalking pursuant to P.L.1992, c.209 (C.2C:12-10) or a crime involving domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S.2C:39-1, or a person having been convicted of a crime pursuant to the provisions of N.J.S.2C:35-3 through N.J.S.2C:35-6, inclusive; section 1 of P.L.1987, c.101 (C.2C:35-7); N.J.S.2C:35-11; N.J.S.2C:39-3; N.J.S.2C:39-4; or N.J.S.2C:39-9 who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree and upon conviction thereof, the person shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole. If the defendant is sentenced to an extended term of imprisonment pursuant to N.J.S.2C:43-7, the extended term of imprisonment shall include the imposition of a minimum term, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.
(2) A person having been convicted in this State or elsewhere of a disorderly persons offense involving domestic violence, whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S.2C:39-1, who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree.
(3) A person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991,c.261 (C.2C:25-17 et seq.) and whose firearm has not been returned, or who is subject to a court order prohibiting the possession of firearms issued pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991,c.261 (C.2C:25-17 et seq.) who purchases, owns, possesses or controls a firearm is guilty of a crime of the third degree, except that the provisions of this paragraph shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.
(4) A person subject to an extreme risk protection or ex parte extreme risk protection order pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) who purchases, owns, possesses, or controls a firearm is guilty of a crime of the third degree.
c. Whenever any person
shall have been convicted in another state, territory, commonwealth or other
jurisdiction of the United States, or any country in the world, in a court of
competent jurisdiction, of a crime which in said other jurisdiction or country
is comparable to one of the crimes enumerated in subsection a. or b.
of this section, then that person shall be subject to the provisions of this
section.
(cf: P.L.2003, c.277, s.3)
8. This act shall take effect on the first day of the seventh month following the date of enactment.
STATEMENT
This bill establishes a process by which a family or household member, law enforcement agency, or an employee of a high school or institution of higher education may petition a court to have a person's firearms temporarily seized upon finding that the person poses a significant danger of causing personal injury to self or others. In order for a school employee to file a petition, the person must have attended the high school or institution of higher education for at least six months. Under the bill, a family or household member, law enforcement agency, or school employee would be permitted to petition the court for an extreme risk protection order which would allow a law enforcement agency to hold a person's firearms for one year.
The bill requires a court to hold a hearing and issue an extreme risk protection order upon a finding by a preponderance of the evidence that the person poses a significant danger of causing personal injury to self or others by having a firearm in the person's custody or control, or by purchasing, possessing, or receiving a firearm. In determining whether grounds for an extreme risk protection order exist, the court may consider the following factors:
(1) a recent act or threat of violence by the person against self or others, whether or not the act or threat of violence involves a firearm;
(2) a pattern of acts or threats of violence by the person within the past 12 months;
(3) any dangerous mental health issues of the person;
(4) a previous or existing extreme risk protection order issued against the person;
(5) a violation of a previous or existing extreme risk protection order issued against the person;
(6) the person's ownership, access to, or intent to possess firearms;
(7) the unlawful or reckless use, display, or brandishing of a firearm by the person;
(8) the history of use, attempted use, or threatened use of physical force by the person against another, or the person's history of stalking;
(9) corroborated evidence of the abuse of controlled dangerous substances or alcohol;
(10) evidence of recent acquisition of firearms; and
(11) whether the person is subject to a restraining order granted pursuant to the "Prevention of Domestic Violence Act of 1991."
In making a determination, the court may examine under oath the person subject to the petition and the family or household member or law enforcement agency filing the petition and any witnesses they may produce. The court also may consider, in lieu of examination, sworn affidavits of the parties involved. The bill allows the court to ensure that a reasonable search has been conducted for criminal history records related to the person subject to the petition. The court also may order a chemical dependency evaluation.
Under the bill, a family or household member, law enforcement officer or agency, or school employee, by motion, may request a renewal of an extreme risk protection order at any time before the order expires. Upon receiving the motion to renew, the court is required to order a hearing to be held at least 14 days after the date of the motion. The court is required to consider the same factors considered when the initial extreme risk protection order was issued. However, if the motion for renewal is uncontested, the order may be renewed on the basis of a petition stating that there has been no material change in relevant circumstances since the order's entry and providing the reason for the requested renewal. The bill requires the law enforcement agency to return any surrendered firearm when the extreme risk protection order is terminated or expires after confirming, through a criminal history record background check, that the person is eligible to own or possess a firearm.
The bill provides that a person who files a petition that is materially false or with intent to harass a person is guilty of a crime of the third degree. In addition, a person subject to an extreme risk protection order who possesses a firearm also is guilty of a crime of the third degree. A crime of the third degree is punishable by three to five years imprisonment, a fine of up to $15,000, or both.
