IN THE MATTER OF B.T.L. (0253-XTR-2020-000001, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 2, 2022
• Docket: A-4327-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4327-19

IN THE MATTER OF B.T.L. ____________________

Argued October 19, 2021 – Decided March 2, 2022

Before Judges Fisher and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Petition No. 0253-XTR- 2020-000001.

Joseph R. Donahue argued the cause for appellant B.T.L. (Brickfield & Donahue, attorneys; Joseph R. Donahue, on the briefs).

Deepa Jacobs, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mark Musella, Bergen County Prosecutor, attorney; William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief).

PER CURIAM

Appellant B.T.L. appeals from the July 14, 2020 final extreme risk

protective order (FERPO) entered against him by the Law Division pursuant to the Extreme Risk Protective Order Act of 2018 (Act), N.J.S.A. 2C:58-20 to -

32.1 We affirm.

I.

In 2015, police were dispatched to B.T.L.'s home. His teenage daughter

told arriving officers she was scared because B.T.L. and his fiancé, J.N., were

fighting. B.T.L. admitted the couple had been arguing on the back deck of the

house. When officers noticed blood on his pants, B.T.L. claimed that J.N. broke

a glass during the argument and he was cut on the shards. However, when

officers later spoke with J.N. they noticed she was bleeding from a cut on her

mouth. She was uncooperative and denied knowing the cause of her injury. J.N.

subsequently said that during the argument B.T.L. struck her in the face. B.T.L.

denied striking J.N. and claimed she attacked him. It was later determined he

suffered a laceration on his thumb that required stitches.

B.T.L. was arrested and charged with simple assault. Ultimately, the

charge was dismissed, and no restraining order was issued after J.N. testified at

a hearing that she was the initial aggressor and that if she had not attacked B.T.L.

he would not have needed to defend himself by hitting her. At the hearing in

1 We refer to appellant by his initials in compliance with Administrative Directive #19-9, "Guidelines for Extreme Risk Protective Orders" (August 12, 2019), Guideline 8(a). A-4327-19 2 the present matter, B.T.L. testified that he had been abused by J.N. for six years

and when she began striking him, he "felt like that was the appropriate time to

defend myself. I will tell you that there was no rage involved, there was no

anger. There was like, you know it was a one hit thing."2

In 2020, B.T.L. contacted police and informed them that his girlfriend,

R.M.S., was at his home intoxicated and refusing to leave. When officers

arrived, B.T.L. told them R.M.S. had been drinking since the prior day, that he

did not want her in his house, and that she ignored his instructions to leave.

The officers approached R.M.S. and, after determining that her level of

intoxication prevented her from safely leaving the home on her own accord,

requested emergency medical services. Because R.M.S. was uncooperative with

medical treatment and resisted attempts to restrain her, officers handcuffed her

to the stretcher for her safety. She was transported to a hospital, where she was

transferred to the control of hospital security.

2 B.T.L.'s 2015 arrest and charge were later expunged. The trial court, however, considered the arrest and charge for purposes of the FERPO hearing. See N.J.S.A. 2C:52-19 (permitting the inspection of the files and records relating to an expunged arrest and charge upon a showing of good cause and a compelling need where the records are the subject of litigation or judicial proceedings). Although B.T.L.'s firearms were removed from his home after the 2015 incident, they were returned by court order after the matter was resolved with instructions that they be secured with trigger locks and stored in a safe. A-4327-19 3 A few hours later, K.L., the brother-in-law of R.M.S., contacted B.T.L.

about R.M.S. having been transported to the hospital. He was angry that R.M.S.

had been handcuffed and was in the hospital. He blamed B.T.L. for the situation

and was under the mistaken impression that B.T.L. had assaulted R.M.S.

The two men exchanged electronic messages including a threat by K.L. to

"kick [B.T.L.'s] ass" and messages from K.L. stating "I'm on my way[,]" "C u

shortly[,]" and "Come outside, I'm here." B.T.L., believing K.L. was outside,

twice called 9-1-1. He also initiated the following text message exchange:

[B.T.L.]: Ready faggot? Who's the bigger man you cunt? You? You and your pussy whipped life. Never met a bigger cunt in my life. Come on by. I'll introduce you to some real man shit. Oh and btw. Your CUNY wife is an ugly cunt. Like the ugliest font I've seen in a decade.

[K.L.]: Lmao, see you soon.

[B.T.L.]: Ready willing and able faggot.

[K.L.]: Call the police again and have them call me you wimp.

[B.T.L.]: Come on by. Wanna taste my .45? Or .225? Or .9? Or .40? Oh you probably don't understand man talk. Cus you are a huge faggot. Ask your cunt wife if you can text me back. Oh she must've said no, so you can't. Cuz you are a YUGE tool (crying/laughing face emoji). Biggest faggot I ever met.

A-4327-19 4 Meanwhile, police were at K.L.'s home in a nearby town in response to

his inquiries about the status of R.M.S. He showed officers the text message

exchange with B.T.L. The content of the exchange was relayed to officers who

were responding to B.T.L's home. When they arrived, B.T.L., who was visibly

intoxicated, admitted sending the messages, but claimed he did so after K.L.

threatened him and because he was attempting to scare him off. At the request

of police, B.T.L. surrendered the firearms and ammunition he had in the home,

as well as his firearms purchaser identification card (FPIC). The officers

secured seven firearms, including a .40 caliber handgun with two ten-round

magazines, an assault rifle with three ten-round magazines, two twelve-gauge

shotguns, and approximately 150 boxes of ammunition. One handgun was found

unlocked in the living room next to ammunition. The other firearms were found

in safes in two locations in the house. No weapon was loaded. As the officers

accompanied B.T.L. through the house to collect his weapons and ammunition,

he became increasingly agitated and hostile. He cursed at the officers and stated

he hoped they all got murdered.

A detective who was at the home filed a petition for entry of an FERPO.

Referring to the 2015 incident, the detective alleged B.T.L had a history of

threats or acts of violence towards others, a prior arrest, and a prior domestic

A-4327-19 5 violence charge. In addition, the detective alleged B.T.L. had threatened K.L.

with violence in his final text message, specifically referring to several of his

weapons, and threatened the officers by stating his hope that they were

murdered. The detective also cited as a relevant factor B.T.L.'s intoxication on

the night he threatened K.L. and the officers.

A municipal court judge, finding that B.T.L. posed an immediate threat

and present danger of causing bodily injury to himself or others through use of

a firearm, entered a temporary extreme risk protective order (TERPO) against

B.T.L. The TERPO prohibited B.T.L. from owning, purchasing, possessing, or

receiving firearms, ammunition, a FPIC, a permit to purchase a handgun, or a

permit to carry a handgun. In addition, the TERPO directed B.T.L. to surrender

to law enforcement any firearms, ammunition, FPIC, or handgun permits in his

possession and revoked any FPIC or handgun permits previously issued to him.

On July 15, 2020, after a two-day hearing, during which B.T.L., R.M.S.,

and the detective testified, Judge Margaret M. Foti issued an oral opinion

granting the petition for an FERPO. After B.T.L. filed a notice of appeal, Judge

Foti issued a comprehensive written amplification of her findings of fact and

conclusions of law pursuant to Rule 2:5-1(b).

A-4327-19 6 In her written opinion, the judge found the detective who testified to be

credible. One the other hand, she found B.T.L. lacked credibility. The judge

accorded no weight to B.T.L.'s explanation for why he assaulted J.N. in 2015.

The court found B.T.L.'s testimony regarding past abuse by J.N. was self-serving

and not corroborated by any evidence in the record.

In addition, the judge found that B.T.L.'s explanation for sending "vile

. . . and violent threats" of firearm violence to K.L. – that he was intending only

to scare K.L. from coming to his home – lacked credibility. The court found

that B.T.L.'s invitation to K.L. to come to his home along with a threat of

violence escalated the likelihood of a confrontation involving firearms.

The judge also found R.M.S. to lack credibility. She concluded that

R.M.S.'s testimony was intended solely to deflect blame from B.T.L. for his

threat against K.L. While the court found that R.M.S.'s intoxication set the 2020

events in motion, her claim to be responsible for B.T.L.'s threat of firearm

violence was wholly unsupported by the record.

In applying the eight factors set forth in N.J.S.A. 2C:58-23(f)(1) to (8),

the judge found by a preponderance of the evidence that B.T.L has: (1) a history

of threats or acts of violence directed toward others, N.J.S.A. 2C:58-23(f)(1);

(2) a history of use, attempted use, or threatened use of physical force directed

A-4327-19 7 toward others, N.J.S.A. 2C:58-23(f)(2); and (3) a prior arrest for a violent

disorderly persons offense or domestic violence offense, N.J.S.A. 2C:58-

23(f)(5). The judge gave significant weight to B.T.L.'s admission that he struck

J.N. in the face during a domestic violence incident, for which he was arrested

and charged. The judge noted that J.N. was injured and bleeding as a result of

the assault. Judge Foti acknowledged that the records of the arrest and charge

were expunged. She found, however, that B.T.L.'s admitted reaction to J.N.'s

aggression to be highly relevant to whether an FERPO should be issued.

In addition, the judge found B.T.L.'s final text message to K.L. was a

threat to use firearm violence against another and B.T.L. threatened the police

officers by expressing his wish that they be murdered. While the judge noted

B.T.L. was intoxicated when he made the threats, she did not expressly find that

he satisfied factor seven, N.J.S.A. 2C:58-23(f)(7) ("has any history of drug or

alcohol abuse and recovery from this abuse"). She found, however, that even

though the petitioner did not introduce evidence of a mental health or substance

abuse diagnosis, "these events convince this court that the court would be ill-

advised to allow [B.T.L.] to possess firearms under the present circumstances."

Finally, the judge noted that even though there was no evidence that

B.T.L. "has recently acquired a firearm, ammunition, or other deadly weapon[,]"

A-4327-19 8 N.J.S.A. 2C:58-23(f)(8), he was in possession of a large number of firearms and

a significant supply of ammunition. The judge noted her concern that one of the

weapons was on a table unsecured next to ammunition while an intoxicated

B.T.L. was engaged in an escalating exchange with K.L. in which he threatened

firearm violence. The court characterized B.T.L.'s actions as not mere lapses in

judgment but "red flags" predicting the danger of future firearm violence. 3

The court found that the State proved by a preponderance of the evidence

that B.T.L. will pose a significant danger of bodily injury to himself or others

by owning, possessing, purchasing, or receiving firearms and ammunition. On

July 14, 2020, the court entered an FERPO mirroring the terms of the TERPO.

Before us, B.T.L. raises one point:

THE STATE FAILED TO MEET ITS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT [B.T.L.] POSES A SIGNIFICANT DANGER OF BODILY INJURY TO HIMSELF OR OTHERS BY HAVING WEAPONS.

B.T.L. also argues the FERPO violates his rights under the First and Second

Amendments to the United States Constitution.

3 The judge did not address the three factors in Administrative Directive #19-9, Guideline 3(d), as there was no evidence that B.T.L. recklessly used, displayed, or brandished a firearm or had a previous TERPO or FERPO issued against him. Nor do the four factors in Administrative Directive #19-9, Guideline 5(d) apply because there was no evidence B.T.L. has a mental health disorder. A-4327-19 9 II.

Our review of the FERPO is guided by our recent holding in In re D.L.B.

468 N.J. Super. 397 (App. Div. 2021). There, we explained that 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 401-

02. The Act was modeled on the existing process for obtaining a domestic

violence restraining order. Id. at 402.

As noted above, the Act establishes eight factors for the trial court to

consider when deciding whether issuance of an FERPO is warranted. N.J.S.A.

2C:58-23(f)(1) to (8). No factor is determinative. Instead, 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)).

"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. When evidence is testimonial and involves credibility questions,

A-4327-19 10 deference is "especially appropriate" because the trial judge is the one who has

observed the witnesses first-hand. Id. at 412. We 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).

Having carefully reviewed the record and considered B.T.L.'s arguments

in light of the Act and legal precedents, we affirm the July 14, 2020 FERPO for

the reasons stated in Judge Foti's comprehensive and well-reasoned written

decision. As Judge Foti found, there is ample evidence in the record on which

to conclude that B.T.L.'s ownership, possession, purchasing, or receipt of

firearms presents a danger to B.T.L. and others. B.T.L. has a history of physical

violence during a domestic dispute with his teenage daughter present . In a

second incident, when confronted with threatening messages from K.L., B.T.L.

escalated the situation by threating to give K.L. "a taste" of several of the

firearms he kept in his home. B.T.L. engaged in this dangerous behavior while

intoxicated and with an unsecured firearm and ammunition readily available to

him. When police responded to the scene, B.T.L. became increasingly agitated

and expressed his desire that the officers be murdered. There are, as Judge Foti

found, several "red flags" raised by B.T.L.'s behavior.

A-4327-19 11 B.T.L.'s constitutional arguments are without merit. Judge Foti did not,

as B.T.L. suggests, punish him for the mere ownership of firearms in violation

of the Second Amendment. Her decision to enter an FERPO was based on the

threat of future firearm violence as established by B.T.L.'s past behavior. It was

reasonable and appropriate for the judge to consider the significant amount of

firearms and ammunition at B.T.L.'s disposal at the time that he was intoxicated

and sent a message threatening the use of firearms. In addition, B.T.L.'s

comments to K.L. and the officers were "true threats" that are not protected by

the First Amendment. State v. Carroll, 456 N.J. Super. 520, 538 (App. Div.

2018).

To the extent we have not specifically addressed any of B.T.L.'s remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-4327-19 12