IN THE MATTER OF D.L.B. (0119-XTR-2020-000001, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1035-20
APPROVED FOR PUBLICATION
July 14, 2021
IN THE MATTER OF D.L.B.
APPELLATE DIVISION
________________________
Submitted May 5, 2021 – Decided July 14, 2021
Before Judges Ostrer, Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Petition No. 0119-
XTR-2020-000001.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for appellant (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
Law Offices of Jef Henninger, attorneys for
respondent (Christopher B. Caserio, on the brief).
The opinion of the court was delivered by
OSTRER, P.J.A.D.
The Extreme Risk Protective Order Act of 2018 (the Act), New Jersey's
"red flag law," empowers a court to remove firearms from a person who "poses
a significant danger of bodily injury to . . . self or others" by possessing them.
N.J.S.A. 2C:58-24(b). In this case, the Law Division, after a plenary hearing,
denied a law enforcement officer's petition for a final extreme risk protective
order (FERPO) that would have compelled D.L.B. to surrender her firearms.
The State contends on appeal that it showed by a preponderance of the
evidence that D.L.B. posed the requisite danger to self or others. N.J.S.A.
2C:58-24(b). Because the trial court did not admit critical evidence, did not
require or ensure the State presented information and evidence upon which it
relied in support of its petition, and did not make essential findings of fact, we
reverse and remand for further proceedings.
I.
We first summarize the law at the center of this appeal. New Jersey, like
many states, adopted a "red flag law" to permit family members and others to
seek emergent orders to remove firearms from a person who poses a danger to
self or others because of a mental health crisis or instability. See Response of
the Supreme Court Criminal Practice Committee to Proposed Rule 3:5B
"Extreme Risk Protective Orders" 1 (May 28, 2019) (Committee Report)
(noting that the law was "designed to 'provide a kind of early warning system
to keep mentally imbalanced individuals from becoming the next mass
shooter'" (quoting Hearing Before S. Law & Pub. Safety Comm., S. 2259
(April 16, 2018))). 1 However, the law is not limited to that. It permits the
1
See also Commentary for Extreme Risk Protection Order Model Legislation,
U.S. Department of Justice (June 7, 2021) https://www.justice.gov/doj/
2 A-1035-20
emergent removal of weapons from any person who poses a danger to self or
others. That may include a person contemplating an act of domestic violence
or an act of terrorism. 2 The Act supplements other statutory mechanisms for
removing firearms from persons who legally possess them. See, e.g., N.J.S.A.
2C:58-3(f) (providing for revocation of firearm purchaser identification card if
person no longer qualifies).
New Jersey's law creates a two-stage process for issuing temporary and
final orders to remove a person's firearms and ammunition, firearms purchaser
identification card, handgun purchase permit, and handgun carry permit.
N.J.S.A. 2C:58-23 (authorizing TERPO); N.J.S.A. 2C:58-24 (authorizing
FERPO). The court first decides, based on an ex parte documentary record, if
it will issue a temporary order to remove firearms. See N.J.S.A. 2C:58-23.
____________________
reducing-gun-violence/commentary-extreme-risk-protection-order-model-
legislation (noting that under red flag laws, orders to remove firearms "may be
sought . . . by family members or others concerned that an individual who is
suicidal or otherwise in crisis will use a firearm to seriously injure or kill
himself or herself or another person").
2
For example, the State Department of Homeland Security petitioned for a
FERPO after referencing the respondent's "online Anti-Semitism, contact with
the Pittsburgh synagogue shooter before the mass shooting, [and] [his] beliefs
that 'force or violence is necessary to realign society.'" See Greco v. Grewal,
2020 WL 7334194 (D.N.J. Dec. 11, 2020) (dismissing the respondent's
constitutional challenge to the Act). We cite this case not as a precedent, see
R. 1:36-3, but as factual evidence of how the Attorney General has applied the
Act, see Barnes v. Sherrer, 401 N.J. Super. 172, 176 (App. Div. 2008) (citing
unpublished opinion for factual context).
3 A-1035-20
Then, after a plenary hearing, the court decides if it will issue a final order to
remove firearms indefinitely. See N.J.S.A. 2C:58-24. The Act is loosely
modeled on the process for obtaining temporary and final domestic violence
restraining orders. See Administrative Directive #19-19: Guidelines for
Extreme Risk Protective Orders (August 12, 2019).
Administrative Directive #19-19 and an Attorney General Directive
discuss the Act and its background at length. See Attorney General, Law
Enforcement Directive No. 2019-2 (Aug. 15, 2019) (AG Directive).
Administrative Directive #19-19 (AOC Directive) summarizes the Act and
promulgates Guidelines (AOC Guidelines or Guideline) that prescribe the
process for obtaining orders under the Act. The AOC Directive also
promulgates various forms for litigants and the courts. Because the AOC
Directive implements the Court's constitutional power to promulgate rules
governing practice and procedure and administration of the courts, the AOC
Guidelines have "the force of law." See State v. Morales, 390 N.J. Super. 470,
472 (App. Div. 2007) (discussing court directives generally). As such, a trial
court is required to comply with the requirements of the directive and the AOC
guidelines. The AG Directive prescribes in detail prosecutors' and law
enforcement's role in carrying out and enforcing the Act. "Attorney General
directives relating to the administration of law enforcement have the 'force of
4 A-1035-20
law.'" In re Attorney General Law Enforcement Directive Nos. 2020-5 and
2020-6, ___ N.J. ___, ___ (June 7, 2021) (slip op. at 27) (quoting N. Jersey
Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 565 (2017)).
A family or household member or a law enforcement officer may
petition the court for an order by "alleging 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." N.J.S.A.
2C:58-23(a); N.J.S.A. 2C:58-21 (defining "petitioner" to mean "family or
household member or law enforcement officer"). Persons who do not qualify
as a "family or household member" must convince law enforcement to file a
petition based on the evidence those persons present. See AG Directive § 3.5
(stating an officer "shall file a petition for a TERPO" if the non-family or non-
household member provides information that gives the officer "probable cause
to believe that the respondent poses an immediate and present danger of
causing bodily injury to self or others" by possessing a firearm). If an officer
only has "good cause," then that officer may still choose to file for a TERPO.
Ibid. The Act sets separate procedures for petitions filed against law
enforcement officers. See N.J.S.A. 2C:58-23(l); AG Directive § 5.
5 A-1035-20
The petition shall include an affidavit presenting the factual grounds for
the relief and shall provide available information about the respondent's
firearms and ammunition. N.J.S.A. 2C:58-23(b); see also Guideline 2(e).
Before deciding to issue a TERPO or FERPO, the statute requires a court
to consider eight factors – whether the respondent:
(1) has any history of threats or acts of violence by the
respondent directed toward self or others;
(2) has any history of use, attempted use, or threatened
use of physical force by the respondent against
another person;
(3) is the subject of a temporary or final restraining
order or has violated a temporary or final restraining
order issued pursuant to the "Prevention of Domestic
Violence Act of 1991," . . . ;
(4) is the subject of a temporary or final protective
order or has violated a temporary or final protective
order issued pursuant to the "Sexual Assault Survivor
Protection Act of 2015," . . . ;
(5) has any prior arrests, pending charges, or
convictions for a violent indictable crime or disorderly
persons offense, stalking offense pursuant to section 1
of . . . (C.2C:12-10), or domestic violence offense
enumerated in section 3 of . . . (C.2C:25-19);
(6) has any prior arrests, pending charges, or
convictions for any offense involving cruelty to
animals or any history of acts involving cruelty to
animals;
(7) has any history of drug or alcohol abuse and
recovery from this abuse; or
6 A-1035-20
(8) has recently acquired a firearm, ammunition, or
other deadly weapon.
[N.J.S.A. 2C:58-23(f).]
Guideline 3(d) requires a court to consider three additional factors, based
on the Act's statement that the eight factors comprise a non-exclusive list,
N.J.S.A. 2C:58-23(f), and the requirement that courts consider "any other
relevant evidence" in deciding if it will issue a FERPO, N.J.S.A. 2C:58-24.
See AOC Directive at 4-5 (discussing additional factors incorporated in AOC
Guidelines). Those three factors pertain to whether the respondent:
(9) has recklessly used, displayed, or brandished a
firearm;
(10) has an existing or previous extreme risk
protective order issued against him or her; and
(11) has previously violated an extreme risk protective
order issued against him or her.
[Guideline 3(d).]
Only if a court finds at least one of the eleven "behavioral" factors, then
it "may consider," Guideline 3(d) (regarding TERPO), Guideline 5(d)
(regarding FERPO), four additional factors pertaining to a person's mental
health – whether the respondent:
(12) has any prior involuntary commitment in a
hospital or treatment facility for persons with
psychiatric disabilities;
7 A-1035-20
(13) has received or is receiving mental health
treatment;
(14) has complied or has failed to comply with any
mental health treatment; and
(15) has received a diagnosis of a mental health
disorder.
[Guideline 3(d).]
At both the TERPO and FERPO hearings, the county prosecutor (or his
or her designee) shall produce "any available evidence," including that related
to the eight statutory factors. See N.J.S.A. 2C:58-23(f) (evidence for TERPO);
N.J.S.A. 2C:58-24(b) (evidence for FERPO). Also, the county prosecutor or
designee "shall," if a law enforcement officer is the petitioner, "produce for the
court's consideration any statements or reports pertaining to the" fifteen factors
"upon which the officer relies in the petition" and, if the petitioner is a "family
or household member, the county prosecutor or designee shall produce . . . any
readily available information or evidence" pertinent to the factors. Guideline
3(e) (regarding TERPO); see also Guideline 5(e) (stating that the county
prosecutor shall produce the 3(e) information at a FERPO hearing). In
addition, at a FERPO hearing, the prosecutor "shall produce . . . information
obtained through sources including the execution of any search warrant and
any additional information obtained through the performance of its
responsibilities" under the Act. Guideline 5(e).
8 A-1035-20
A finding of one or more of the factors may not be enough to support the
issuance of a TERPO. The judge "shall issue" the TERPO only "if the court
finds good cause to believe that the respondent poses an immediate and present
danger of causing bodily injury to the respondent or others by" possessing a
firearm. N.J.S.A. 2C:58-23(e); see also Guideline 4(a). The court may grant a
TERPO ex parte; the court may rely only on the petitioner's affidavit, or the
court may examine under oath the petitioner and any witness the petitioner
presents. N.J.S.A. 2C:58-23(d); Guideline 3(c).
And, consistent with State v. Hemenway, 239 N.J. 111, 136 (2019), the
court "shall" also issue a search warrant upon a showing of probable cause,
although the Act provides that a search warrant "shall" issue upon a lesser
showing of good cause. Compare AG Directive at § 3.3, AOC Directive at 6,
Guideline 4(e), and Guideline 6(d) (requiring probable cause), with N.J.S.A.
2C:58-26(b) (requiring search warrant with TERPO) and N.J.S.A. 2C:58-23(e)
(requiring only good cause for TERPO); see also Committee Report at 29-33
(discussing Act's search warrant provisions).
The AOC Guidelines provide that the search warrant shall encompass
firearms and ammunition the "respondent possesses or owns at [the] specified
location." See Guideline 4(e), Guideline 6(d). In so doing, the AOC
Guidelines evidently narrow the scope of the warrants contemplated by the
9 A-1035-20
Act, which refers to warrants to search for firearms or ammunition "in the
custody or control of . . . a respondent" as well as those "owned, or possessed
by a respondent." N.J.S.A. 2C:58-26(c). However, the AG Directive
commands law enforcement officers executing a search warrant to "seize all
firearms and ammunition within the possession, custody, or control of the
respondent," and "[s]uch firearms include any that the respondent could access
or possess." AG Directive § 6.4. Citing N.J.S.A. 2C:58-26(e), the Directive
adds that if the law enforcement agency seizes firearms or ammunition of
lawful owners other than the respondent, then the agency shall return them
once it determines ownership. AG Directive § 6.4. 3
Within ten days after the petition's filing, the Superior Court must hold a
plenary hearing to decide if it will issue a FERPO. N.J.S.A. 2C:58-24;
Guideline 5(a). Importantly, "[t]he rules governing admissibility of evidence
at trial shall not apply to the presentation and consideration of information at
the [FERPO] hearing." Guideline 5(c). Thus, notwithstanding hearsay rules,
the court "may consider an affidavit and documents submitted in support of the
petition, and may consider any information provided by the county prosecutor
3
N.J.S.A. 2C:58-26(e) states: "If a person other than the respondent claims
title to any firearm or ammunition surrendered pursuant to this section, and the
law enforcement agency determines that the person is the lawful owner of the
firearm or ammunition, the firearm or ammunition shall be returned to that
person."
10 A-1035-20
or designee." Ibid. Presumably, the court must follow the caveat on using
hearsay at gun permit hearings: an order "cannot be based upon hearsay alone"
and "there must be a residuum of legal and competent evidence in the record to
support" the court's order. See Weston v. State, 60 N.J. 36, 51 (1972)
(discussing admissibility of hearsay in firearms purchaser identification card
hearings); In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003). As at the
TERPO hearing, "the court may examine under oath the petitioner and any
witnesses the petitioner may produce." Guideline 5(c). 4 The respondent may
testify, present witnesses, cross-examine witnesses, and "submit documents."
Ibid.The court shall issue the FERPO order if it finds "by a preponderance of
the evidence at the hearing that the respondent poses a significant danger of
bodily injury to the respondent's self or others" by possessing a firearm.
N.J.S.A. 2C:58-24(b). "The court shall place on the record the reasons
supporting its decision to grant or deny the order." Guideline 6(a); see also R.
1:7-4(a). The FERPO bars the respondent from possessing, and requires the
4
The Guidelines import the statutory provision that a court may examine
under oath the petitioner and witnesses at the TERPO hearing, although there
is no comparable statutory provision pertaining to the FERPO hearing.
Presumably, the court may also examine the respondent under oath. See
N.J.R.E. 614; State v. Ross, 229 N.J. 389, 408 (2017) (stating that the
Evidence Rules "explicitly permit trial judges to interrogate witnesses").
11 A-1035-20
respondent to surrender, any firearms, ammunition, firearm purchaser
identification card, handgun purchase permit, and handgun carry permit.
Guideline 6(b); see also N.J.S.A. 2C:58-24(d). The court "shall" also issue a
search warrant if "probable cause exists to believe" that "the respondent owns
or possesses any firearms or ammunition" and, by doing so, "poses a
significant danger of bodily injury to self or others," and "such firearms or
ammunition are presently at a specifically described location." Guideline 6(d).
A respondent may ask the court at any time to terminate the order, and
the court "shall consider" all fifteen factors including "whether the respondent
has received, or is receiving, mental health treatment." Guideline 7; see also
N.J.S.A. 2C:58-25(c). Until the court issues a further order, the FERPO
remains in effect. Guideline 6(c).
Records relating to TERPO and FERPO proceedings are confidential and
shall not be disclosed to persons other than respondent except for good cause
shown. Guideline 8(a); AOC Directive at 9. 5 Likewise, a central registry of
TERPO and FERPO orders is confidential. AOC Directive at 9; N.J.S.A.
2C:58-30.
5
We refer to D.L.B. by her initials to comply with this Guideline.
12 A-1035-20
II.
Turning to the case at hand, Pleasantville Police Detective Juan Morillo
resorted to the Act after he responded to a dispute among neighbors. 6 In his
petition, he stated he believed D.L.B. posed an "immediate and present danger
of causing bodily injury to self or others" because she "recklessly used,
displayed, or brandished a firearm." To support that conclusion, Detective
Morillo made four factual allegations.
First, he asserted D.L.B. unsafely handled a handgun. The detective
stated: "Respondent was recorded dancing in her driveway holding a pink
framed handgun and pointing the firearm aimlessly with disregard to civilian
safety. The respondent is also recorded loading and charging rounds into the
chamber." The petition identified the manufacturer, model, and serial number
of the 9 mm black and pink handgun.
Second, Detective Morillo stated that D.L.B.'s son texted D.L.B. to
"advise[] that he was afraid to visit her after watching her in the video."
Third, the detective stated that D.L.B. "admitted to traveling with her
firearm inside her vehicle for protection." Detective Morillo noted in the
6
Morillo was a patrol officer at the time, but was a detective when he testified
at the FERPO hearing. Therefore, we refer to him by his new rank.
13 A-1035-20
petition – evidently in error – that D.L.B. did not have a permit to purchase a
handgun. 7
Fourth, Detective Morillo stated that D.L.B.'s fiancé owned a .40 caliber
handgun, which was described in detail and is registered to the same address as
D.L.B.'s, but he alleged that D.L.B. also "possesse[d]" that weapon.
In addition, the detective alleged that a complaining neighbor was
"afraid of [D.L.B.] having a handgun."
The detective also stated that his allegations were supported by three
documents: his police report, his "body worn camera footage with supporting
statements," and a video-recording made by D.L.B.'s neighbor of her actions
that was subsequently posted to Facebook.
The municipal court granted the TERPO in an ex parte proceeding. We
note there are significant ambiguities in the court's order. The form states that
during the ex parte hearing, the municipal court considered the petition,
"and/or" Detective Morillo's testimony, "and/or" the three documents.
Therefore, it is unclear which of the three the court actually relied on to find
facts supporting the petition. See State v. Gonzalez, 444 N.J. Super. 62, 71
(App. Div.) (reversing criminal conviction after jury instructions repeatedly
7
Detective Morillo testified at the FERPO hearing that D.L.B. did possess a
purchase permit. The petition also stated that D.L.B. possessed a firearms
purchaser identification card, but not a permit to carry a handgun.
14 A-1035-20
used term "and/or"; noting the "imprecision" of the term; and collecting cases
in support of the term's "well-documented" criticism), certif. denied, 226 N.J.
209 (2016) (limiting "[t]he criticism of the use of 'and/or'" in jury instruction
"to the circumstances" of that case).
Further, the order states the court considered both Detective Morillo's
allegation of reckless brandishment, with the four accompanying facts, and, as
"[a]ny other relevant factor," Detective Morillo's allegation that D.L.B.'s
neighbor feared her having a gun. The form then states that the court "found at
least one of the factors listed above" without stating which one. A blank space
after the words "the court also having considered" indicates the court did not
find any of the four mental health factors.
Although the form order does not clearly identify the evidence the
municipal court relied on, nor the factor it found, the court concluded that the
petitioner presented "good cause that [D.L.B] will pose/poses an immediate
and present danger of causing bodily injury to . . . herself or others by owning,
possessing, purchasing or receiving firearms and/or ammunition." The court
also issued a search warrant on probable cause to search for and seize: any
15 A-1035-20
permits or purchaser ID cards issued to D.L.B., the black and pink handgun
that she owned, and the handgun "belonging to" her fiancé. 8
The State then sought a FERPO. 9 Detective Morillo was the county
prosecutor's sole witness. He testified that he was called to D.L.B.'s address
because dispatch had "advised that there was a female" – who turned out to be
D.L.B. – "yelling in the middle of the street" at around 6 a.m. D.L.B.'s
neighbor had called the police. When the detective arrived on the scene,
another officer was already there speaking with D.L.B. and her fiancé. The
detective spoke to D.L.B. for about fifteen to twenty minutes; he described her
as being "agitated, upset, [and] cursing here and there." She was upset that her
neighbor recorded her while she handled her firearm.
Detective Morillo asked her why she had her weapon out of the house,
and "she said something along the lines that she's allowed to have it in the car
8
The search warrant included a preamble stating, "The court finds that
probable cause exists to believe that (l) the respondent owns or possesses
firearms or ammunition as described below, (2) the respondent poses an
immediate and present danger of bodily injury to self or others by owning or
possessing any such firearms or ammunition, and (3) such firearms or
ammunition are presently at the location described below"; the order then
stated, "[T]his order shall serve as a warrant to search for and seize . . . the
following firearm(s) and/or ammunition"; and the order then described the
pink and black handgun D.L.B. owns and the handgun that her fiancé owns.
9
The Law Division held the hearing several months after the TERPO issued.
The judge attributed the delay to the Covid-19-related court closures, and
D.L.B.'s adjournment requests to obtain counsel.
16 A-1035-20
as long as the clip is not together, and that she was carrying it for protection in
her car." The detective later amplified that D.L.B. said "[t]hat she used it for
protection, and she had it in her car. She was just moving it from the car to the
house." Although the detective did not ask D.L.B. why she needed a gun for
protection, she did say "that she was threatened by her neighbors."
The detective testified that he was informed that D.L.B.'s son "was
concerned" regarding his mother's possession of the firearm. As D.L.B. later
elaborated, the son was an adult who did not live with her. However, the
detective did not provide the basis of the son's concern because the prosecutor
twice withdrew his related question after respondent's counsel raised a hearsay
objection – notwithstanding Guideline 5(c). 10
The detective then spoke with the neighbor who had called the police –
but was not the person who actually recorded D.L.B. the day before. That
neighbor showed him a ten to fifteen second video of D.L.B. in her driveway
with her gun. Detective Morillo "saw [D.L.B.] handling the weapon carelessly
and pointing it up in the air and wa[]ving it to the sides as she was dancing
with the weapon."
10
According to the hearing transcript, when the detective stated during cross-
examination that the son said he was afraid of going to D.L.B.'s home, the
prosecutor himself interposed an objection, evidently based on hearsay, which
the court sustained.
17 A-1035-20
The detective said after he responded to the dispute among the
neighbors, he was "uneasy" about what he saw in the video. He said he later
found on Facebook a longer video of over two minutes that depicted D.L.B.
handling her handgun. He preserved the video by recording it with his body
camera. The video was played for the court. 11 It showed D.L.B. swaying
rhythmically, apparently to music, while she twice removed and inserted the
magazine, and pulled the hammer as she pointed the weapon to the left and
right. One of the neighbors narrating the video surmised that the handgun was
unloaded, noting, "Ain't nothing in it. She cocked it twice already. You would
have heard the shell fall out."
After consulting with superiors about extreme risk protective orders,
searching records, and conferring with the county prosecutor, the detective
filed his petition eight days after he responded to D.L.B.'s home.
During cross-examination, respondent's counsel questioned the detective
about statements he made on his bodycam, but neither side introduced the
11
Although the video was played, no transcript of it was marked into
evidence. The court did not, as Rule 1:2-2 requires, mark the video into
evidence as a court's exhibit and retain it. See R. 1:2-2 (stating "[u]nless a
transcript thereof is marked into evidence, a verbatim record shall also be
made of the content of an audio or video tape played during the proceedings
and the tape itself shall be marked into evidence as a court's exhibit and
retained by the court"). However, the video is included in the record before
us.
18 A-1035-20
bodycam recording, and the court did not request or consider it. The
prosecutor also did not present the detective's police report, which the
municipal court may have considered. Respondent's counsel elicited that no
one called the police the day D.L.B. was observed handling her firearm.
Rather, the police were called the following day, when she confronted her
neighbors after she discovered they posted the video on the internet, which she
believed invaded her privacy.
Responding to the court's questioning, the detective confirmed there was
no video-recording of D.L.B. yelling in the street at her neighbors, which
prompted the call to police, but he did video-record his interviews on his
bodycam. The court also explored the eight-day delay between the detective's
response to the scene and his application for the TERPO. Although Guideline
5(c) expressly authorizes the court to examine the petitioner and any witnesses
the petitioner produces, the judge expressed some reluctance in posing
questions.
After stating that the municipal court had found that the respondent
recklessly used, displayed or brandished a firearm, the judge asked the
prosecutor if he had any evidence regarding respondent's mental health,
quoting factors 12 through 15. The prosecutor said he did not.
19 A-1035-20
D.L.B. testified that when she was video-recorded, she and her boyfriend
had just returned from the gun range after discovering it was closed. She
stated that she transported her gun to and from the range by storing it in a
"black little thingy" in the trunk. She stated "the clip can't even be loaded"
when she went to the range. She stated she took a gun safety course in order to
shoot at the range before she acquired her handgun.
She acknowledged pulling the hammer of the gun back and forth a few
times in the video. She stated that since she was in her own yard, she did not
think she was doing anything wrong. She said she was dancing with her
handgun because she was feeling happy. She said, "I really wanted to shoot
my gun. I just got it. I only went to the gun range once, and it's pretty in pink,
and I just didn't think I was doing anything wrong." She said the gun was not
loaded and she never would have danced the way she did with a loaded gun.
She acknowledged that while she danced next to her car in the driveway
pulling the hammer, her fiancé was nearby cleaning the wheel rims; her
twenty-one-year-old son and seven-year-old daughter were inside the house;
and neighbors were close by. Asked specifically whether it was true that she
told the detective that she "drive[s] around with [her] gun in [her] car for
protection," D.L.B. did not respond directly, instead stating that the detective
did not want to hear what she had to say.
20 A-1035-20
D.L.B. said that her adult son alerted her to the video after he saw it on
Facebook. She believed it was "disrespectful" to post the video and her
neighbors harassed her. Around 6 a.m., she walked into the street and told her
neighbors she was going to complain to the police. When she did so, she
learned the neighbors had called already. She contended the neighbor who
took and narrated the video wanted to put her in a bad light because she had
previously rejected his romantic advances. D.L.B. agreed the detective's body
camera would have captured her in a very agitated state when the police
arrived, but that was because her neighbor's recording her "was the last straw,
and I finally popped. And I was upset . . . I was very angry." But she said she
did not get her weapon or threaten them with it. D.L.B. also said that if the
court denied the petition and returned her guns, she would never do something
like that again, since she "learned [her] lesson."
In closing, respondent's counsel highlighted that D.L.B. was handling
her handgun on her own property, nobody was injured, and the neighbors
narrating the video were not fearful, but instead could be heard mocking
D.L.B. and laughing at her. Additionally, the neighbors did not call the police
because of what they saw; they called the police because D.L.B. allegedly was
yelling in the street the following morning. And, the claim that D.L.B. was a
21 A-1035-20
danger was belied by the fact that Detective Morillo did not apply for the order
until eight days after being called out to the scene.
The State highlighted D.L.B.'s statements that she did not realize, in the
moment, that she was doing anything wrong. Emphasizing that the fiancé and
child were nearby when she pointed the weapon, the prosecutor argued that
D.L.B. did "not have a sufficient appreciation of the danger that firearms
pose."
In its oral decision, the court found Detective Morillo was credible, and
D.L.B. was "very straightforward" and "gave a very clear statement of . . .
what happened that day." The court credited D.L.B.'s statement that the gun
was not loaded when she was dancing with it. "[F]rankly, there was an
indication that she had pulled the hammer, and frankly, if it had been loaded,
we would have known that. This would be an entirely different case." The
court characterized the case as being the "combination of a neighbor dispute, a
long going neighbor dispute, and Facebook foolishness which caught Miss [B.]
doing foolish things."
The court did not decide if D.L.B. "recklessly used, displayed or
brandished a firearm." Evidently referring to the municipal court, the judge
stated, "the [c]ourt has to be concerned that there was a finding here that there
was a brandishing of a weapon." The judge continued, "I have to take into
22 A-1035-20
consideration that it appears that it was not loaded, but it could have been
different[] than that." Without referring to the preponderance-of-the-evidence
standard of proof, and without deciding if D.L.B. acted "recklessly," the judge
stated, "So we definitely established that there was credible and relevant
evidence that there was brandishing of the weapon."
The judge noted that the prosecutor had no evidence about the "other
behavioral factors [that] could also play into the [c]ourt's decision." Also,
"based on [D.L.B.]'s testimony, she does not indicate or give any indication
that she has any psychiatric disabilities or any mental health disorder."
The court made no findings regarding Detective Morillo's allegation that
D.L.B. carried her gun in her car for protection; her adult son was afraid of his
mother's gun possession; and the neighbor who complained to police (as
distinct from the videographer) was afraid of D.L.B.
The court concluded "there is not an establishment here that [D.L.B.]
poses a significant danger of bodily injury to herself or others by owning,
possessing or purchasing or receiving a firearm." The court dissolved the
TERPO and denied the request for a FERPO. The court ordered the guns
23 A-1035-20
returned to D.L.B. and her fiancé, but stated that it would stay that aspect of its
order if the State appealed. 12
In its written order, the court stated it "does not find by a preponderance
of the evidence that [D.L.B.] will pose/poses a significant danger of bodily
injury to . . . herself or others by owning, possessing, purchasing or receiving
firearms and/or ammunition." The same lack of clarity in the municipal court's
order plagues the Superior Court's final order. The order notes the court
"considered" the petition, "and/or" Detective Morillo's testimony (without
mentioning D.L.B.'s testimony), "and/or" the three documents. The order lists
the reckless brandishment factor, and the "any other relevant factor" followed
by the phrase "[h]aving found at least one of the factors listed above," but the
court, in its oral decision, never found recklessness, and did not identify "any
other relevant factor." Moreover, the final written order included a search
warrant to seize both D.L.B.'s and her fiancé's firearms, although they had
already been seized after the TERPO. The order did not formalize the court's
oral decision to stay the return of the firearms to D.L.B. and her fiancé.
12
The judge stated, "If there is a determination to appeal, of course the
weapons would not be turned over immediately." The court directed the
prosecutor to notify respondent's counsel "to let him know what the State's
decision is and whether the weapons will be turned back over to the rightful
owners." Respondent's counsel has confirmed that law enforcement has
retained the firearms pending appeal.
24 A-1035-20
The State raises one point on appeal:
POINT I
RESPONDENT'S RECKLESS HANDLING OF HER
FIREARM IN HER DRIVEWAY AND HER
IMPULSIVE ANIMUS TOWARD HER
NEIGHBORS DEMONSTRATES THAT HER
POSSESSION OF FIREARMS POSES A
SIGNIFICANT RISK OF HARM TO HER FAMILY
AND HER NEIGHBORS.
III.
We are constrained to reverse and remand because the trial court did not
consider all relevant evidence or make sufficient factual findings.
We acknowledge "[t]he scope of appellate review of a trial court's fact-
finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). We
are generally bound by trial court findings "when supported by adequate,
substantial, credible evidence." Id. at 411-12. When evidence is testimonial
and involves credibility questions, deference is "especially appropriate"
because the trial judge is the one who has observed the witnesses first-hand.
Id. at 412. An appellate court will not disturb a trial court's findings unless
they "went so wide of the mark that the judge was clearly mistaken." N.J. Div.
of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007).
However, a trial court must "find the facts" in its oral or written opinion,
R. 1:7-4(a), and state "the reasons supporting its decision to grant or deny" the
25 A-1035-20
FERPO, Guidelines 6(a). A reviewing court may "expect" that a trial court's
fact-findings will adequately address the "disputed issues" among the parties.
N.J. Div. of Youth & Fam. Servs. v. H.P., 424 N.J. Super. 210, 230 (App. Div.
2011). A judge's fact-finding must explain "how and why the ultimate
conclusion was drawn." Ibid. "Failure to make explicit findings and clear
statements of reasoning 'constitutes a disservice to the litigants, the attorneys,
and the appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)); see also J.D. v. M.D.F., 207
N.J. 458, 488 (2011) (remanding where trial court entering FRO "did not
sufficiently articulate findings and conclusions consistent with the statutory
standards").
In determining whether to issue the FERPO, the AOC Guidelines state
that the court "shall consider" the eleven factors. Guideline 5(d). Detective
Morillo's petition relied on factor 9 – whether the respondent "has recklessly
used, displayed, or brandished a firearm." The court orally found there was
credible evidence of brandishing but did not address whether D.L.B. acted
recklessly. 13 Also, the court did not address D.L.B.'s admission that she "just
13
Evidently, it is a cardinal rule of gun safety that a person handling a firearm
should "always keep the muzzle pointed in a safe direction." See Firearm
Safety – 10 Rules of Safe Gun Handling, Rule #1, National Sport Shooting
Foundation, https://www.nssf.org/safety/rules-firearms-safety/ (last visited
26 A-1035-20
got" her handgun, although factor 8 pertains to whether the respondent "has
recently acquired a firearm, ammunition, or other deadly weapon."
The court also failed to address the other factual allegations in the
petition. Of particular concern should have been the detective's testimony that
D.L.B. stated she transported her handgun in her car for protection, and
D.L.B.'s evasion of the question whether that was true. According to the
petition, D.L.B. did not possess a permit to carry. Thus, transporting her
handgun in her car for protection (presumably loaded or with the ammunition
easily accessible) should have raised concerns both because it might indicate
the potential for danger to herself or others, and because it would have been
unlawful, see N.J.S.A. 2C:39-5(b)(1) (stating "[a]ny person who knowingly
has in his [or her] possession any handgun . . . without first having obtained a
permit to carry the same . . . is guilty of a crime of the second degree"). 14
____________________
June 18, 2021) (stating "[t]his is the most basic safety rule"; "[i]f everyone
handled a firearm so carefully that the muzzle never pointed at something they
didn't intend to shoot, there would be virtually no firearms accidents"; and
"[e]ven when 'dry firing' with an unloaded gun, you should never point the gun
at an unsafe target").
14
A person does not need a carry permit to transport a handgun to the target
range if properly stored, see N.J.S.A. 2C:39-6(f)(3)(b), -6(g). But, according
to Detective Morillo, D.L.B. said she also carried her handgun in her car for a
different purpose.
27 A-1035-20
The court also made no findings regarding the son's reasons for fearing
his mother's gun possession. Family members have a special role under the
Act. Although the son did not initiate the petition, his concerns may have shed
light on the issues at hand. The court mistakenly sustained a hearsay objection
regarding testimony that D.L.B.'s son was afraid to go to his mother's home.
Furthermore, the court did not address whether the neighbor was fearful of
D.L.B.'s handgun possession, and why.
The court was obliged to consider the officer's bodycam recording, and
his report, each highly relevant evidence. Detective Morillo cited these items
as support in his petition, and the municipal court may have considered one or
more of them in entering the TERPO (as noted, we cannot be sure, because of
the "and/or" usage). In addition to confirming (or not) the detective's
allegation about D.L.B. carrying the handgun in her car for protection, the
bodycam video would have depicted D.L.B.'s demeanor. Although D.L.B.
admitted she was angry, the video evidence may have placed in clearer focus
D.L.B.'s temperament and her capacity for self-control.
According to the FERPO hearing transcript, the prosecutor chose not to
offer the bodycam recording or police report. But Guideline 3(e), pertaining to
TERPO hearings, states that the county prosecutor or designee "shall," if a law
enforcement officer is the petitioner, "produce for the court's consideration any
28 A-1035-20
statements or reports pertaining to the" fifteen factors "upon which the officer
relies in the petition." 15 Guideline 5(e) requires the county prosecutor to
produce the same information at the FERPO hearing, plus more. The guideline
states that "[i]n addition to information referenced in Guideline 3(e), the
county prosecutor or designee shall produce for the court's consideration
information obtained through . . . execution of any search warrant and any
additional information obtained through the performance of its responsibilities
under" the Act. Guideline 5(e); see also AG Directive § 4.4 (stating that
prosecutor's obligation to produce "any statements or reports pertaining to the
factors" "is true at the TERPO and FERPO hearing"). Because the AOC
Directive and Guidelines have the force of law, see Morales, 390 N.J. Super. at
472, the court was responsible for requiring, and ensuring, that the State
honored its production obligations under Guidelines 3(e) and 5(e).
15
We acknowledge that AG Directive § 4.4 states that "[s]tatements or reports
do not include video or audio files," citing State v. Robinson, 229 N.J. 44, 71
(2017). However, that oversimplifies the holding in Robinson, which
addressed the State's obligation to disclose "[s]tatements and reports relating to
the risk of flight, danger, and obstruction" before a pre-trial detention hearing.
229 N.J. at 70. The Court expressly stated that "statements and reports"
"include witness statements that are maintained only in recorded form and
have not yet been reduced to writing," id. at 70-71, which would include
D.L.B.'s statements to Detective Morillo that he recorded on his bodycam and
were, evidently, not transcribed.
29 A-1035-20
By stating that the court then "may consider" that information, Guideline
3(c) (TERPO); 5(c) (FERPO), the guideline apparently invests the court with
some discretion, since the word "may" connotes a permissive, discretionary
action. See State v. S.N., 231 N.J. 497, 512 (2018) (interpreting use of "may"
in the Criminal Justice Reform Act). But, the discretion here is limited,
because Guideline 5(d) states that "the court shall consider all relevant
evidence," and the use of "shall" is mandatory, S.N., 231 N.J. at 512.
The underlying relevance decision, like evidentiary rulings generally, "is
'entitled to deference absent a showing of an abuse of discretion i.e., [that]
there has been a clear error of judgment.'" Griffin v. City of E. Orange, 225
N.J. 400, 413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J.
138, 147 (2001)). But we owe no deference to a decision made without
explanation or a decision made without considering the applicable factors. See
S.N., 231 N.J. at 515. The court made no relevance decision at all regarding
the bodycam recording, or the police report. And, though a court may
sometimes decide evidence is irrelevant sight unseen, that is not true here. The
bodycam recording of Detective Morillo interviewing D.L.B. was most
certainly relevant in assessing her demeanor and self-control, and in deciding
if she carried her gun in her car for protection. Furthermore, the AOC
Directive suggests that at the FERPO hearing, the Guideline 5(e) information
30 A-1035-20
is inherently relevant. It states, "The court will consider all relevant
information, including . . . any information provided by the county prosecutor
or designee pursuant to Guideline 5(e)." AOC Directive at 8 (emphasis
added).
Absent consideration of this evidence, and findings on these critical
issues, the court's determination that D.L.B. did not pose a danger to self or
others rested on an incomplete foundation. Therefore, we are constrained to
reverse the court's order dismissing the petition, and to remand for more
complete findings upon review of the relevant evidence, including all of the
information the State is required to provide the court in accordance with
Guidelines 3(e) and 5(e). We express no opinion on the ultimate result of the
court's further fact-finding. The TERPO is reinstated pending decision on
remand. 16
Lastly, particularly when a trial judge has made credibility findings
based on a mistakenly limited evidentiary record, the judge may be perceived
to be committed to his or her original fact-findings despite new evidence
16
Absent an application from the fiancé, we do not address whether sufficient
factual and legal grounds were presented for seizing the handgun D.L.B.'s
fiancé owns, but which the petition alleged, D.L.B. possessed; and whether the
stay of the return of his firearm should continue pending completion of the
remand proceedings. The trial court may address these questions in the first
instance.
31 A-1035-20
presented on remand; therefore, it is appropriate for us to assign the case to a
different trial judge. See R.L. v. Voytac, 199 N.J. 285, 306 (2009) (finding it
was "appropriate" to assign remanded matter to a different trial judge
"[b]ecause the trial court previously made credibility findings"); Penbara v.
Straczynski, 347 N.J. Super. 155, 163 (App. Div. 2002) (requiring a different
judge to hear retried case where trial judge "may have a commitment to her
original perception of the [witness's] credibility," which was based on an
erroneously limited evidentiary record).
Reversed and remanded. We do not retain jurisdiction.
32 A-1035-20