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Nearly 200 people have had their guns seized in N.J. under new ‘red flag’ law

NJ.com logo NJ.com 1/30/2020 By Joe Atmonavage, nj.com

Nearly 200 people in New Jersey have had their guns seized under a “red flag” law that went effect last year, according to data obtained by NJ Advance Media.

The Extreme Risk Protective Order Act, which went into effect Sept. 1, allows a law enforcement officer, family or household member to submit a petition to state Superior Court showing why a judge should issue an order to keep guns away from someone who potentially poses a danger of causing bodily injury to themselves or to others.

If the judge determines there is “good cause” to remove the guns, the judge will initially issue a temporary extreme risk protection order and a search warrant is executed to recover the guns, ammunition and firearms identification card from the person.

So far, 186 temporary extreme risk protective orders have been granted as of Jan. 22, according to the New Jersey Administrative Office of the Courts, meaning more than one person a day has had their guns taken away — at least temporarily — in New Jersey since the law went into effect. In 25 cases, a petition was made but the temporary order was denied by a judge, according to court data.

After a temporary order is granted and the firearms are seized, the individual is entitled to a hearing within 10 days in front of the judge before a final order is issued.

If a final order is granted by a judge, it lasts indefinitely, but the person can also seek to have the order terminated at any time after the order goes into effect.

There have been a total of 88 final orders granted since the law went into effect, according to the Administrative Office of the Courts. Judges have denied 29 final orders, according to the courts.

It is unclear how many total firearms have been seized from individuals under the law.

There are an estimated 1 million gun owners across the state.

Gun rights advocates cite the Extreme Risk Protective Order Act as another invasive gun control measure enacted in New Jersey.

“Red flag is travesty for anyone who values Constitutional rights," said Scott Bach, the executive director of the Association of New Jersey Rifle & Pistol Clubs. "It’s abuse of process. It is being used to harass gun owners.”

Bach said the rate at which people are having their guns seized under the law is about what the organization expected.

Petitions can be made based off online threats or erratic behavior by a person, among other reasons. State Assembly Majority Leader Lou Greenwald, D-Camden — a main sponsor of the law — told NJ Advance Media when the law went into effect that it was "really based around a mental health concern.”

“In a lot of cases, you’ll hear that a family member will say their child was struggling with depression or suicidal tendencies,” Greenwald said at the time. “They can now ask a judge to intercede and remove the gun until that individual can be tested and be determined to be safe to themselves and others.”

Similar measures, often described as “red flag” flags, have been enacted in more than a dozen states. The law has been used to to disarm people who threatened mass shootings in more than 20 incidences, according to Giffords Law Center, a gun control policy organization.

The law is at the center of a proposed class action federal lawsuit filed by a South Jersey man who had his firearm seized by authorities after he had “threatened, advocated and celebrated the killing of Jewish people” on an online forum.

David Greco filed the lawsuit in October, alleging his due process rights, along with other gun owners in New Jersey, had been violated, as they are not given a chance to be heard in court before a temporary order is issued and police confiscate the firearms.

“Why can’t you give people the opportunity to know what is going on? To give them the opportunity to be heard?" Greco’s attorney, Albert Rescinio, said in November. "You are being deprived of your constitutional rights without a hearing, without being given the opportunity to know what is going on.”

The lawsuit also challenges whether there is legal authority to execute a search warrant after a temporary extreme risk protection order is issued. After it is issued, the law says “the court shall issue a search warrant.”

But the lawsuit alleges that because the order is contingent on “good cause” and not the legal standard of “probable cause," executing a search warrant is unconstitutional.

Rescinio said the number of individuals who could join the proposed class action lawsuit is “growing.”

“I cannot very well sit by silently while the State of New Jersey knowingly continues to violate the clearly established Federal rights of citizens and potential Class Members,” Rescinio wrote in a recent court filing.

Rescinio has filed a motion for a preliminary injunction throughout the state stopping the implementation of the law as it currently written. The motion is pending a federal judge’s ruling.

Bach said “when the time is right,” his organization plans to file a lawsuit challenging the law as well.

The New Jersey Attorney General’s office, who is tasked with implementing and enforcing the law, declined to comment on the pending lawsuit or the effectiveness of the law since it went into effect.

Staff writer Brent Johnson contributed to this story.

Joe Atmonavage may be reached at jatmonavage@njadvancemedia.com. Follow on Twitter @monavage.

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©2020 NJ Advance Media Group, Edison, N.J.

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