When Grief Leads to Disarmament

Losing a child is one of the most traumatic things a parent can go through. Should it also be cause for losing your Second Amendment rights? 

That’s exactly what happened to one New Jersey woman and her husband, though thankfully (and somewhat unbelievably) an appellate court overturned that decision and reinstated their Second Amendment rights. 

The nightmare for the couple identified in court papers as L.M.P. and her husband E.S. began on July 9, 2024, when officers from the Bayonne Police Department arrived at their home and informed them that their only son was dead. Wrought with grief and shock, E.S. asked police to take a gun located in the home’s upstairs because he was afraid his wife would shoot herself, before making comments that he too would likely harm himself with the firearm. 

E.S. was taken to a local hospital for a mental health evaluation based on those comments, while L.M.P. voluntarily surrendered the firearm to officers. The Bayonne P.D. then filed for a Temporary Extreme Risk Protection Order, and unsurprisingly given E.S.’s comments it was granted. 

Two months later the police filed for a Final Extreme Risk Protection Order, and despite the fact that neither L.M.P. or E.S. had tried to harm themselves in the months since, the court approved the request. 

L.M.P. appealed that decision, arguing that the court had erred in granting the FERPO despite no evidence that she had ever expressed a desire to harm herself or others, that there was no “substantial and credible” evidence she posed a risk to herself or others, and that the “red flag” statute itself violated her Second Amendment rights. 

While the appellate panel declined to address L.M.P.’s constitutional arguments, it did find that the court erred by granting the FERPO (hat tip to Eugene Volokh and his coverage of the case at Reason). 

While the trial court properly considered the relevant factors pursuant to N.J.S.A 2C:58-23(f), it erred in concluding that the first factor, whether there is a history of threats or acts of violence towards self or others, supported the entry of a FERPO against L.M.P. In reaching its conclusion, the court relied exclusively on statements made by L.M.P.’s husband E.S. that she would harm herself. The trial judge acknowledged that the concerns about L.M.P. were based on her husband’s statements to police, not her own actions or words, explaining, “with respect to [L.M.P.] there is nothing in the record before me that she indeed had made any acts of violence towards herself or towards others. Again, it was her husband who had . . . requested that the police officers take the gun from the home because he was afraid that his wife would use it.” 

… Based on the available evidence, and the trial court’s own factual findings that L.M.P. had not committed any acts of violence towards herself or others, it was error for the court to conclude that L.M.P. posed a risk to herself or others warranting issuance of a FERPO against her based solely on the statements of L.M.P.’s distraught husband.

The panel noted that the only other factor the trial judge found relevant was the fact that L.M.P. had purchased her gun less than six months before her son died. In a remarkable act of common sense not generally seen in New Jersey courtrooms when the Second Amendment is at stake, the court wrote:

We are not convinced that this factor should weigh in favor of entering a FERPO against petitioner when there is no evidence that the firearm was purchased in contemplation of the tragic event that led to the issuance of the TERPO. We emphasize this is not a situation where the purchased gun was used in a crime. It is undisputed, moreover, that the tragic loss of L.M.P.’s son was unexpected. Furthermore, as E.S. explained in his testimony at the FERPO hearing, the firearm was purchased for a legitimate purpose—to protect the home following more than one burglary. The point simply is that in these distinctive circumstances, the purchase date of the gun has no rational bearing on the likelihood it would be used for self-harm or to harm others.

In the two months between the issuance of the TERPO and the hearing for a Final Extreme Risk Protection Order, Bayonne Police found no additional evidence that L.M.P. or E.S. would use the gun to hurt themselves or others. The final order against L.M.P. was granted solely on the basis of the comments made by her distraught husband immediately after he was informed his son was dead and the fact that she was a relatively new gun owner. 

We emphasize the court’s observation that “with respect to [L.M.P.] there is nothing in the record . . . that she indeed had made any acts of violence towards herself or towards others.” Such a finding cannot support a contradictory conclusion that L.M.P. posed a significant danger to herself or others. Although we are reticent to substitute our judgment for that of the trial court, we conclude that in these circumstances, the State did not present sufficient credible evidence to find it “more probable than not” that L.M.P. posed a significant danger to herself or others warranting entry of the FERPO against her.

The appellate panel made the right call, but it took more than a year for them to hear oral arguments in the case, and their decision wasn’t handed down until January 6, 2026. For more than a year, then, L.M.P. was wrongly denied her ability to possess a firearm. 

Cases like this aren’t just examples of how “red flag” laws can be abused. They’re also examples of why every state in the nation should have a voluntary off-site storage law allowing gun owners to temporarily remove guns from their home and store them with friends, family, or a cooperative FFL during a time of crisis. Keeping E.S. away from a firearm for several days may very well have been a wise move, but there’s no way to easily effect a temporary transfer to someone else under New Jersey law. 

When my eldest son died in April, 2022, I gave serious thought to giving my guns to a friend for safekeeping; not because I was concerned about me harming myself, but because I was concerned about my wife. We had a very heartfelt and painful discussion about it, but she assured me that she had no intention or desire of hurting herself. Her brother took his own life when he was just 19 years old, and Miss E carried that pain with her to the end of her days. She told me she could never put us through that suffering, and I believed her. 

Still, I’m glad I had the option of asking someone to hold my guns for me, and I wish the same were true for folks like L.M.P. I don’t believe that “red flag” laws are part of some secret Commie plot to disarm every American. I think they’re somewhat well-intended, though completely myopic. If E.S. was intent on taking his life, he could have done so in any number of ways not involving a firearm, and a “red flag” petition wouldn’t have made any difference. But as this case reminds us, if we’re looking at gun-centric ways of keeping people safe while they’re in a crisis, allowing for off-site storage is a far better mechanism than Extreme Risk Protection Orders and their potential for abuse. 

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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