N.J. Appellate Court Reverses "Red Flag" Order Barring Gun Possession by Mother Whose Son Had Just Died

From In the Matter of L.M.P., decided Tuesday by N.J. intermediate appellate judges Ronald Susswein, Mark Chase, and Lorraine Augostini:

Petitioner L.M.P. and her husband E.S. are a married couple residing in Bayonne. On July 9, 2024, Bayonne police officers arrived at the couple’s home to inform them of the untimely death of their only son. L.M.P. and E.S. became distraught upon hearing this tragic news.

E.S. made several pertinent statements to police during the interaction. According to reporting Officer Krzeminski, E.S. told the officers that there was a “gun upstairs,” stated that his wife would shoot herself, asked Officer Krzeminski to take out his firearm and shoot him, and asked the officer to remove the gun from the residence because he was going to “eat the gun.” E.S. was taken to Bayonne Medical Center for a psychological evaluation. L.M.P. remained quiet throughout the encounter with police and later testified that she “went into severe shock.”

During the police visit to the home, L.M.P. voluntarily surrendered the firearm, which was brought to Bayonne Police Headquarters. A Petition for Temporary Extreme Risk Protective Order (TERPO) was filed on behalf of the Bayonne Police Department against L.M.P. The petition alleged that L.M.P. posed an immediate and present danger of causing bodily injury to herself or others and asked the court to grant a TERPO to prohibit her from owning, possessing, or acquiring firearms. The trial court granted the TERPO on the same day.

A FERPO hearing was held [two months later]…. L.M.P. … testified at the [Final Extreme Risk Protective Order (FERPO)] hearing. The following is the totality of her testimony:

So, the only thing I would like to say is that it was a very unfortunate day for my husband and I. And I went into severe shock from the second they gave us the news. I didn’t say anything. I didn’t threaten anybody. I have no mental health issues. I could tell you that I have worked at my place of employment for over ten years. I’ve been in the same line of business for over [twenty-five] years. I’ve been an upstanding citizen. So, the gun that was pulled from me is owned by me and registered by me. So, that’s all I have to say.

E.S. also testified as follows:

I would just like to say that I was in, I thought I was dreaming to be honest with yas (sic). And it just turned out that I wasn’t. And we’ve been broken into over four times. We’ve had someone climb into our back window through an air conditioner. We’ve had someone enter our home and actually steal from us. The last person that broke into our home was when the cops arrived he had knives, rope, duct tape, all in a book bag. And that’s why, that’s one of the reasons why my wife got fingerprinted to get a gun. And we collect rent from [twenty-seven] different tenants, which is usually around like $60,000 a month that we keep, and there is old tenants that we rented to with bad criminal histories that have threatened us. So, we felt like we needed it for our protection. Thank you….

Based on the preponderance of the evidence standard, the court found that the evidence presented demonstrated that L.M.P. and E.S. posed a danger of self-harm warranting issuance of the FERPO, stating:

The [c]ourt is satisfied again by a finding that the preponderance of the credible evidence supports a finding by this [c]ourt that both [L.M.P.], as well as, [E.S.] pose a significant danger of bodily injury to self by owning, possessing, purchasing or receiving a firearm….

[W]e conclude that the trial court erred in entering a FERPO against L.M.P. because the State failed to meet its burden of demonstrating, by a preponderance of the evidence, that L.M.P. posed a significant danger of bodily injury to herself or others by possessing a firearm….

[T]he trial court … erred in concluding that the first factor [set forth under the ERPO statute], whether there is a history of threats or acts of violence towards self or others, supported the entry of a FERPO against L.M.P. In reaching its conclusion, the court relied exclusively on statements made by L.M.P.’s husband E.S. that she would harm herself…. Likewise, Officer Krzeminski testified that he did not have much interaction with L.M.P. and that she was “very quiet.” Based on the available evidence, and the trial court’s own factual findings that L.M.P. had not committed any acts of violence towards herself or others, it was error for the court to conclude that L.M.P. posed a risk to herself or others warranting issuance of a FERPO against her based solely on the statements of L.M.P.’s distraught husband.

We note that the only other factor the trial judge found relevant was factor eight concerning the length of time since defendant had acquired the firearm. We are not convinced that this factor should weigh in favor of entering a FERPO against petitioner when there is no evidence that the firearm was purchased in contemplation of the tragic event that led to the issuance of the TERPO. We emphasize this is not a situation where the purchased gun was used in a crime. It is undisputed, moreover, that the tragic loss of L.M.P.’s son was unexpected. Furthermore, as E.S. explained in his testimony at the FERPO hearing, the firearm was purchased for a legitimate purpose—to protect the home following more than one burglary. The point simply is that in these distinctive circumstances, the purchase date of the gun has no rational bearing on the likelihood it would be used for self-harm or to harm others.

We add that at the FERPO hearing, the State did not introduce any evidence or information gathered after the initial meeting where officers informed L.M.P. and E.S. of the tragic loss of their son. Nothing in the record before us supports the initial statement E.S. made to police that he feared his wife would harm herself in reaction to the tragic news they were just given….

Having concluded that the State did not meet its burden of proof by a preponderance of the evidence, we decline to reach L.M.P.’s constitutional challenge to New Jersey’s Red Flag Law….

Gregg D. Trautmann (Trautmann & Associates, LLC) argued the cause for appellant.

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