A New Jersey appellate court reversed a red flag order that prohibited a grieving mother from possessing firearms after police applied the order based solely on her husband's statements following news of their son's death.

The three-judge panel ruled that L.M.P., a Bayonne resident, posed no demonstrated risk to herself or others despite her husband's distressed comments to police officers who came to inform the couple of their only son's death on July 9, 2024.

Why it matters: The ruling demonstrates potential overreach in red flag law applications and raises questions about due process standards as these laws expand nationwide.

• 21 states plus D.C. now have extreme risk protection order laws, with usage increasing 59% in 2023 according to Everytown data.
• The case shows how grief and shock can be misinterpreted as dangerous behavior warranting firearm confiscation.
• Colorado's Senate Bill 4 would expand who can petition for red flag orders to include schools, hospitals, and treatment facilities.

Between the lines: The woman never made threatening statements—only her distraught husband did.

• L.M.P. remained silent during the police encounter and "went into severe shock" upon hearing the news.
• Her husband E.S. told officers there was a "gun upstairs," said his wife would shoot herself, and asked police to remove the gun because he was going to "eat the gun."
• The petition targeted her, not him, despite his being the one who made concerning statements.

What the evidence showed: At the final hearing two months later, L.M.P. presented a clear record of stability.

• She testified she never threatened anyone and has no mental health issues.
• Employment history showed over 10 years at her current job and 25+ years in the same field.
• The couple owned rental properties worth $60,000 monthly and had been burglarized multiple times, providing legitimate reasons for firearm ownership.

The husband explained they'd been "broken into over four times" with one intruder carrying "knives, rope, duct tape" when arrested. They also faced threats from former tenants with criminal histories.

The legal reality: Research shows mixed evidence on red flag law effectiveness.

• RAND Corporation analysis found only "limited" evidence that extreme risk protection orders reduce suicide rates.
• Evidence for preventing mass shootings, violent crime, and unintentional deaths remains "inconclusive."
• Most studies have "serious or critical methodological concerns," often evaluating effects from only one or two states.

What's happening elsewhere: States continue expanding red flag law scope and usage.

• Colorado's proposed legislation would allow behavioral health co-responders, schools, and hospitals to petition courts directly.
• Nearly 49,000 extreme risk petitions have been filed nationwide between 1999 and 2023, with 96% filed since the 2018 Parkland shooting.
• Wisconsin has introduced but not passed similar legislation.

The contradiction: Red flag laws aim to prevent tragedies while potentially creating new injustices.

• Supporters argue the laws fill gaps where people show warning signs but don't fall under existing prohibitions.
• Critics point to cases like L.M.P.'s where grief is mistaken for danger and due process protections prove inadequate.
• The New Jersey case required two months of legal proceedings to restore rights that may have been improperly removed.

By the numbers: Red flag usage varies dramatically across jurisdictions.

• Only 59% of counties in red flag states had at least one petition filed in 2023.
• Connecticut and New York showed the largest increases after making implementation changes.
• Judges grant the majority of petitions, raising questions about whether initial screenings are thorough enough.

The appellate court's reversal suggests that immediate trauma responses to devastating news should not automatically trigger firearm prohibitions, especially when the targeted individual exhibits no threatening behavior themselves.

The bottom line: This ruling may influence how courts evaluate red flag petitions based on third-party statements rather than direct evidence of risk from the gun owner.

Go deeper:

• RAND Corporation analysis of extreme risk protection orders
• Everytown data on 2023 red flag usage increases
• New Jersey appellate court decision
• Colorado Senate Bill 4 editorial

Read the original article in The Handbook | By Steve Duskett

Join the Discussion

Have you or anyone you know dealt with an extreme risk protection order, whether challenged or upheld—what was your takeaway on how the process actually worked versus what you expected?