In the Matter of A.N.H.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2298-21

IN THE MATTER OF A.N.H.
___________________________

Submitted November 8, 2023 – Decided November 29, 2023

Before Judges Whipple, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Petition No. 0210-XTR-
2021-1.

Louis P. Nappen, attorney for appellant A.N.H. (Evan
F. Nappen Attorney at Law, PC, attorneys; Louis P.
Nappen and Andrew G. Bitar, on the briefs).

Mark Musella, Bergen County Prosecutor, attorney for
respondent State of New Jersey (K. Charles Deutsch,
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 A.N.H.1 appeals from a March 24, 2022 order granting the State's petition

for a Final Extreme Risk Protective Order (FERPO) entered under the Extreme

Risk Protective Order Act of 2018 (Act), N.J.S.A. 2C:58-20 to -32. We affirm.

We recite the facts from the testimony presented to the trial judge and the

judge's April 11, 2022 written amplification of reasons in support of her March

24, 2022 order.

In March 2020, A.N.H. applied for a firearms permit. In his application,

A.N.H. represented he was never confined or committed to a mental institution

or hospital for mental health treatment, nor treated or observed by a doctor or

psychiatrists for a mental health condition. Based on the information in his

application, A.N.H. received a firearms permit. In June 2020, A.N.H. bought a

handgun.

In August 2021, the Federal Bureau of Investigation's Joint Terrorism

Task Force (JTTF) contacted the Dumont Township Police Department (DTPD)

regarding suspicious messages posted by A.N.H. on an online messaging

platform and a social media platform. Based on the JTTF's intelligence, the

1
We use initials because "[a]ll records related to proceedings for [Final Extreme
Protective Orders] are confidential and may not be disclosed to anyone other
than the respondent . . . , except if good cause is found by the court to release
such records." Admin. Off. of the Cts., Administrative Directive #19-19,
Guidelines for Extreme Risk Protective Orders, (Aug. 12, 2019) (Guidelines).
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DTPD commenced a background investigation regarding A.N.H., which

revealed his purchase of the handgun and undisclosed mental health issues.

On August 18, 2021, the DTPD filed an ex parte petition for a Temporary

Extreme Risk Protective Order (TERPO) against A.N.H. The municipal court

judge for Dumont Township granted a TERPO. Thereafter, police officers with

the DTPD went to A.N.H.'s home and confiscated his handgun in accordance

with the TERPO. Later that same day, A.N.H. voluntarily went to the DTPD

and relinquished his Firearm Purchaser Identification Card (FPIC).

On March 22 and 24, 2022, a Superior Court judge conducted a plenary

hearing to determine whether to issue a FERPO. The judge granted the State's

petition for a FERPO on March 24, 2022. After A.N.H. appealed from that

order, the judge provided an April 11, 2022 written amplification of reasons.

During the hearing on the State's petition for a FERPO, the judge heard

testimony from Detective Lieutenant Luke Totten with the DTPD. The judge

also considered various police reports of incidents with A.N.H. and medical

records from A.N.H.'s stay at the New Bridge Medical Center in Bergen County

(formally known as Bergen Regional Medical Center). Additionally, the judge

heard testimony from Dr. Elliot L. Atkins, a licensed clinical psychologist.

Detective Lieutenant Totten testified regarding the DTPD's involvement

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with A.N.H. In March 2014, the DTPD responded to a situation at the local high

school involving a threat by A.N.H., who was then fifteen years old, to "throw

[a classmate] out the window." A year later, the DTPD responded to a reported

assault by A.N.H. on his father and his father's estranged wife. In May 2016,

the DTPD responded to a report that A.N.H. threatened his sister with a

"[s]amurai sword."

As a result of the May 2016 incident, while A.N.H. was still a minor, his

mother took him to New Bridge Medical Center for a psychological evaluation

and treatment.2 The attending physician at the hospital, Dr. Edward G. Hall,

diagnosed A.N.H. with impulse control disorder with unspecified depressive

disorder. Dr. Hall noted that, while A.N.H. exhibited limited insight, poor

judgment, and "[i]mpulsive aggressiveness," A.N.H. was "[i]ntelligent" and

displayed "no clear clinical evidence of a danger to self or others." However,

Dr. Hall further opined A.N.H. displayed superficial cooperation and provided

"guarded" and "short standard answers" to the doctor's questions.

2
A.N.H. claims he committed himself voluntarily. Because A.N.H. was a minor
at the time, he could not legally or voluntarily commit himself. A.N.H.'s mother
signed the hospital admission paperwork. According to the hospital admission
records, A.N.H. had a police escort upon arrival due to "extreme aggressivity
and assaultiveness demonstrated at home."

A-2298-21
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 According to the testimony, A.N.H. "pressured" his mother to sign the

hospital's release form because A.N.H. was not legally authorized to sign release

forms for himself. Dr. Hall discharged A.N.H. three days after his admission to

the hospital and instructed A.N.H. to seek mental health treatment through a

specific treatment program. A.N.H. did not seek mental health treatment per

Dr. Hall's discharge instructions.

Two days after A.N.H.'s release from the hospital, the DTPD responded

to a report that A.N.H. brandished a knife at his fellow high school classmates.

In June 2018, the DTPD responded to a local restaurant regarding a

dispute between A.N.H. and his co-workers. According to the police report,

A.N.H. "grab[bed his boss's] ponytail and pulled him to the ground." A.N.H.

then retrieved a hammer from his vehicle and returned to the restaurant. The

boss declined to press charges against A.N.H.

Based on A.N.H.'s incidents involving the DTPD, and the information

provided by the JTTF, Detective Lieutenant Totten testified there was "good

cause to . . . pursue a TERPO." Additionally, the detective explained A.N.H.

omitted information related to his mental health history in his FPIC application.

The judge then heard testimony from Dr. Atkins, an expert in clinical and

forensic psychology, who testified on behalf of A.N.H. Dr. Atkins conducted a

A-2298-21
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four-hour interview with A.N.H. and prepared a written report. Although Dr.

Atkins had the DTPD reports regarding incidents with A.N.H., the doctor did

not have A.N.H.'s hospital records at the time he rendered his report. Based on

his subsequent review of the hospital's medical records, Dr. Atkins testified

those records "reaffirm[ed]" his conclusions regarding A.N.H.

Dr. Atkins further testified A.N.H. was not a danger to himself or others.

The doctor discounted A.N.H.'s prior incidents with the police, attributing those

incidents to A.N.H.'s "immaturity and his extremely turbulent family situation."

Dr. Atkins had no information to determine whether A.N.H.'s hospitalization in

May 2016 was voluntary or involuntary. Additionally, Dr. Atkins was unaware

the hospital diagnosed A.N.H. with depressive disorder and impulse control

disorder. Despite lacking important information, Dr. Atkins opined A.N.H.

"never presented as a danger to himself or others," and "today . . . is neither

depressed nor impulsive . . . [he] has grown up and matured." However, Dr.

Atkins admitted there was a likelihood A.N.H. would experience depression in

the future based on his prior depression diagnosis.

At the conclusion of the hearing, the judge found the State proved "by a

preponderance of the evidence . . . [A.N.H.] poses a significant danger of bodily

injury to [him]self or others by possessing, owning, or receiving a firearm ." As

A-2298-21
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a result, the judge issued a FERPO.

The judge found Detective Lieutenant Totten's testimony credible. She

also found Dr. Atkins' testimony "credible in some respects and not credible in

other respects." She noted the doctor "didn't appear to have a good working

understanding or knowledge of the facts . . . in [A.N.H]'s history," and

"minimized some of [A.N.H.]'s prior history." The judge also found from the

testimony that it was "unclear whether . . . Dr. Atkins had a good understanding

of whether there was a recommendation for follow-up treatment."

The judge then considered the FERPO factors under N.J.S.A. 2C:58-23(f)

as applied to A.N.H. Factors one through eight under the Act require a judge to

determine whether the subject displays any of the following characteristics:

(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," . . . ;

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 (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 [L. 1992, c. 209] [(N.J.S.A. 2C:12-10)], or domestic
violence offense enumerated in section 3 of [L. 1991,
c. 261] [(N.J.S.A. 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

(8) has recently acquired a firearm, ammunition, or
other deadly weapon.

[N.J.S.A. 2C:58-23(f).]

If a judge finds at least one of the foregoing factors, the judge may

consider four additional factors pertaining to a subject's mental health.

Specifically, a judge may consider whether the subject:

(12) has any prior involuntary commitment in a hospital
or treatment facility for persons with psychiatric
disabilities;

(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.

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 [Guideline 3(d).]

Regarding factors one, two, and eight, the judge found there was no

question those factors applied in A.N.H.'s case. Regarding the mental health

factors, based on A.N.H.'s medical records, the judge found A.N.H. "was

voluntarily committed," "received mental health treatment" while at a hospital,

"received a diagnosis" of depression, and "upon his discharge . . . was

recommended to receive mental health treatment."

A.N.H. filed an appeal. Pursuant to Rule 2:5-1(b), the judge issued a

written statement of reasons amplifying her decision to issue a FERPO. In her

amplification, the judge repeated her findings that Detective Lieutenant Totten

was a credible witness and that "Dr. Atkins' testimony [was] credible in some

respects and not credible in other[]" respects, due to his lack of a "clear

understanding of the facts which le[d] to [A.N.H.]'s mental health

hospitalization." For those reasons, the judge explained she "did not place great

weight on Dr. Atkins's conclusion . . . that [A.N.H.] did not pose a danger to

[him]self or others and was able to safely possess firearms." Additionally, the

judge set forth a detailed analysis for her application of factors one, two, eight,

twelve, thirteen, fourteen, and fifteen in issuing the FERPO.

In finding factor one, the judge explained there was no dispute A.N.H. had

A-2298-21
9
a "history of threats and acts of violence." Regarding factor two, the judge relied

on her analysis under factor one and determined A.N.H. had a "history of both

threatened and actual violence." In applying factor eight, the judge found

A.N.H. acquired a firearm in June 2020, the JTTF became involved in August

2021, and A.N.H., "at wors[t] . . . falsified his application; at

best . . . minimized his mental health issues" when he applied for his FPIC.

Turning to the mental health factors, regarding factor twelve, the judge

stated A.N.H. was committed to the hospital "voluntarily." However, the judge

noted his commitment was a direct result of the incident with the samurai sword;

A.N.H. was escorted to the hospital by the DTPD; and A.N.H. was committed

to the hospital by his mother for a mandatory seventy-two hours. The judge

found factor thirteen applied because A.N.H. received mental health treatment

at the hospital in May 2016. In applying factor fourteen, because A.N.H. failed

to seek the recommended follow-up mental health treatment per Dr. Hall, and

Dr. Atkins testified "no one can predict with 100% certainty whether a person

will [again] experience past [mental health] symptoms," the judge concluded

A.N.H. failed to comply with mental health treatment. Finally, because A.N.H.

was diagnosed by Dr. Hall with impulse control disorder and an unspecified

depressive disorder, the judge found factor fifteen applied.

A-2298-21
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On appeal, A.N.H. raises the following arguments:

POINT I

THE COURT BELOW ERRED BY FINDING THAT
N.J.S.A. 2C:58-23(f)(8) APPLIES SINCE
APPELLANT HAS NOT RECENTLY PURCHASED
A FIREARM.

POINT II

THE COURT BELOW ERRED BY APPLYING
FACTOR 12, WHICH CONCERNS INVOLUNTARY
COMMITMENTS, TO APPELLANT'S VOLUNTARY
COMMITMENT FOR THREE DAYS AT A MENTAL
HEALTH FACILITY.

POINT III

THE COURT BELOW ERRED BY GRANTING THE
FERPO WHERE GOVERNMENT FAILED TO
PRESENT ANY EVIDENCE OUTSIDE OF
HEARSAY THAT APPELLANT POSED A
SIGNIFICANT, IMMEDIATE, AND PRESENT
DANGER OF CAUSING BODILY INJURY TO
HIMSELF OR OTHERS.

POINT IV

PER BRUEN, DENIAL OF SECOND AMENDMENT
RIGHTS UPON N.J.S.A. 2C:58-23(f)(8)'S
"RECENTLY ACQUIRED A FIREARM,
AMMUNITION, OR ANOTHER DEADLY
WEAPON" STANDARD SHOULD BE FOUND
UNCONSTITUTIONAL.

A-2298-21
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 "The 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 bound by the trial

court's findings "when supported by adequate, substantial, credible evidence."

Id. at 411-12. Where evidence is testimonial, as in this case, and involves

credibility questions, deference is "especially appropriate" because the trial

judge observed the witnesses first-hand. Id. at 412.

Our review of a FERPO is guided by our holding in In re D.L.B., 468 N.J.

Super. 397 (App. Div. 2021). As we explained in D.L.B., the Act is intended to

address the growing number of mass shootings by removing firearms from those

who have shown "red flags" indicative of future violence. Id. at 400-02.

There are eight factors under the Act to be considered by the trial judge

when deciding whether to issue a FERPO. N.J.S.A. 2C:58-23(f)(1) to (8). No

single factor is determinative. After weighing each of the factors, "[t]he court

shall issue the FERPO . . . 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." D.L.B., 468 N.J. Super. at

406-07 (quoting N.J.S.A. 2C:58-24(b)). If one of the eight statutory factors is

found by a judge, the Guidelines list consideration of additional factors related

to a subject's mental health.

A-2298-21
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 Here, the judge issued the FERPO finding factors one, two, eight, twelve,

thirteen, fourteen, and fifteen applied. Having reviewed the record, we are

satisfied the judge did not abuse her discretion in finding the State met its burden

of proof by a preponderance of the evidence that A.N.H. was a danger to himself

and others for the reasons set forth in the judge's written amplification of reasons

in support of the FERPO.

A.N.H. specifically challenges the judge's findings that FERPO factors

eight, twelve, and fourteen applied. A.N.H. also contends there was insufficient

evidence to support the judge's finding that he was a "significant, immediate and

present danger" to himself and others.

The State agrees the judge's finding that factor eight applied was mistaken

because A.N.H. had not recently acquired a firearm. However, A.N.H. does not

challenge the judge's findings under factor one, history of threats or acts of

violence directed toward self or others, and factor two, history of use, or

threatened use of physical force against others. Thus, the judge properly then

considered A.N.H.'s mental health under factors twelve, thirteen, fourteen, and

fifteen.

In considering factor twelve, the judge had to determine if A.N.H. had a

prior involuntary commitment in a hospital or treatment facility for persons with

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psychiatric disabilities. The judge found this factor applied because A.N.H.'s

mother took A.N.H., who was a minor at the time, to the local hospital for a

psychiatric evaluation based on the May 2016 sword incident with his sister.

This matter is similar to a civil commitment of a minor under Rule 4:74-

7A. Under that Rule, a parent may request admission of a minor under the age

of fourteen to a hospital for mental health treatment without a court order.

A.N.H.'s own expert, Dr. Atkins, agreed A.N.H.'s mother took her son, with a

police escort, to the local hospital for a psychiatric evaluation and that A.N.H.

remained in the hospital for a seventy-two hour "mandatory hold" because the

hospital "found a reason to keep him." Based on these discrete facts, the judge

did not err in finding factor twelve applied.

Regarding factor thirteen, receipt of mental health treatment, factor

fourteen, failure to comply with any mental health treatment, and factor fifteen,

diagnosis of a mental health disorder, 3 we are satisfied the record supported the

judge's findings in support of the FERPO. Based on the medical records, A.N.H.

received mental health treatment at a local hospital in May 2016, thus satisfying

factor thirteen. The same medical records indicated A.N.H. was directed to

3
Contrary to A.N.H.'s argument, the Act does not require the mental health
diagnosis to be rendered at or around the date of the FERPO.
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participate in continued mental health treatment following his discharge from

the hospital and failed to do so, thus satisfying factor fourteen. Additionally,

the hospital records revealed a diagnosis of unspecified depressive disorder and

impulse control disorder upon A.N.H.'s discharge on May 17, 2016, thus, the

judge did not err in applying factor fifteen.

The judge carefully reviewed the police and medical records, considered

the trial testimony, and rendered credibility findings in support of the issuance

of the FERPO. Given the ample evidence in support of finding factors one, two,

twelve, thirteen, fourteen, and fifteen applicable, we are satisfied the judge did

not abuse her discretion in issuing the FERPO. Except as to the finding of factor

eight, the judge's application of the factors under the Act and the Guideline was

correct, and the weight accorded to each factor by the judge was supported by

the evidence.

We next consider and reject A.N.H.'s argument that the judge

impermissibly relied on hearsay in issuing the FERPO. "[T]he rules governing

admissibility of evidence at trial shall not apply to the presentation and

consideration of information at the [FERPO] hearing." D.L.B., 468 N.J. Super.

at 406 (quoting Guideline 5(c)) (second alteration in original). Moreover, the

judge did not rely solely on hearsay evidence. Rather, the judge considered and

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relied on Detective Lieutenant Totten's personal knowledge regarding A.N.H.'s

interactions with the DTPD in support of the FERPO.

We also reject A.N.H.'s claimed violation of his Second Amendment

rights based on the United States Supreme Court's decision in N.Y. State Rifle

& Pistol Ass'n, Inc. v. Bruen, 597 U.S. ___, 142 S.Ct. 2111 (2022). Prior to the

United States Supreme Court's decisions in Bruen, the Court approved of state-

imposed limitations on the right of mentally ill people to possess firearms. See

District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (stating "nothing in

our opinion should be taken to cast doubt on longstanding prohibitio ns on the

possession of firearms by . . . the mentally ill"); see also McDonald v. City of

Chicago, 561 U.S. 742, 786 (2010) ("We made it clear in Heller that our holding

did not cast doubt on such longstanding regulatory measures as 'prohibitions on

the possession of firearms by . . . the mentally ill.'") Indeed, Bruen recognized

that laws prohibiting possession of a firearm by a mentally ill individual are

"presumptively lawful." Bruen, 142 S.Ct. at 2162, n.26 (Kavanaugh, J.,

concurring). Based on United States Supreme Court precedent, we discern no

violation of A.N.H.'s Second Amendment rights under the Act.

Affirmed.

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