On Friday, October 25, the Association of New Jersey Rifle and Pistol Clubs (ANJRPC) and a private citizen, David Burg, filed a federal lawsuit intended to end New Jersey’s abuse of Extreme Risk Protective Orders, also known as “Red Flag” laws.
The lawsuit, Burg & ANJRPC v. Platkin, was filed in the United States District Court for the District of New Jersey. The case is being brought by ANJRPC Attorney Dan Schmutter of the firm Hartman & Winnicki, PC. Mr. Schmutter is also actively fighting other important cases regarding concealed carry in the Garden State.
“The New Jersey State Police used the Red Flag law to seize the firearms of 67-year old attorney David L. Burg because he simply tried to exercise his right of lawful self-defense while en route to an Independence Day celebration in July,” said the ANJRPC in an email statement introducing the lawsuit, and adding the following details:
The State Police never bothered to speak directly with Mr. Burg, a carry permit holder, before using the red flag law to wrongly arrest him and seize his firearms. Instead, they falsely concluded he was a bad actor who needed to be stripped of his gun rights without due process. This “arrest first and ask questions later” approach puts every law-abiding carry permit holder in New Jersey at risk of false arrest and wrongful firearm seizure.
After observing that the Bruen Supreme Court decision affirmed once and for all that the Second Amendment guarantees the right of the people to carry guns in public for self-defense, the complaint makes the following observation about New Jersey’s onerous law:
The State of New Jersey has, apparently, not gotten the message. New Jersey is piling on its suppression of the fundamental right to keep and bear arms using every possible means, including its grossly unconstitutional Extreme Risk Protective Order Act of 2018 (“ERPO Act”) – a law that fails even the most basic requirements of Due Process and treats the Second Amendment worse than a second class right. The ERPO Act treats the Second Amendment as if it does not exist.
On July 17, 2024, the New Jersey State Police showed up at the home of Mr. Burg with a Temporary Extreme Risk Protective Order (“TERPO”) and seized all of his firearms. The story behind Mr. Burg’s disarmament has all the markings of New Jersey’s typical “trample civil rights first and ask questions later” approach to law-abiding gun owners.
Several days earlier, the 67-year-old Mr. Burg was relentlessly and threateningly pursued by an aggressive and maniacal driver for miles. The young driver dangerously tailgated Mr. Burg, followed him when he tried to pull off the highway to allow the other driver by, and eventually blocked him in and rolled down his window and started shouting threats of physical harm towards Mr. Burg. Fearing death or serious bodily injury, Mr. Burg drew his lawfully-carried concealed weapon, and with his finger off the trigger, and pointed it.
The other driver went to the police first and falsely reported (on July 13) that Mr. Burg had pointed a gun at him unprovoked. The complaint states that, “the NJSP nevertheless had deliberately decided not to speak with him to learn his side of the story before obtaining the TERPO behind his back and concurrently charging him with serious crimes.”
Although Mr. Burg engaged in lawful self-defense, he was met with an unconstitutional response that deprived him of his civil rights and stripped him of his property. Based on nothing other than the other driver’s statement, the New Jersey State Police issued and executed the TERPO on Mr. Burg. As the complaint notes:
- The TERPO petition was submitted by New Jersey State Trooper Anthony Dzugan as Petitioner, and the TERPO was granted entirely on the basis of Dzugan’s hearsay affidavit.
- Nothing in the affidavit was based on personal knowledge.
- No testimony, written or live, was submitted by any witness to the events that formed the basis of the TERPO.
- No witness gave live testimony or was examined by the court that issued the TERPO.
This is not the first time that the State has abused the TERPO process. As we reported just weeks ago in the case of Kyle Arena, the Totowa police department stripped Mr. Arena of his firearms after conducting perhaps the laziest of investigations and executing another TERPO. (Mr. Arena is challenging the TERPO, and so far, according to inside sources, the state has dropped nearly all the firearms-related charges.)
Back to Mr. Burg, who told prosecutors he would not waive his right to a FERPO (Final Extreme Risk Protection Order) hearing within 10 days. On the day of his July 24, 2024 scheduled FERPO hearing, without explanation, the Court adjourned the FERPO hearing until early September 2024, well after the statutory 10-day period had expired. And then again, on September 28, 2024, the Monmouth County Superior Court further adjourned the FERPO hearing until November 12, 2024.
Mr. Burg has quite literally never had his day in court.
It should be noted the ANJRPC is the NRA state affiliate. If you live in New Jersey, or are simply disgusted by government abuse of the civil rights of law-abiding gun owners, donate to the case here.
We will continue to cover this story.
