In a high-stakes lawsuit, attorney and former congressional candidate David Burg is challenging New Jersey’s “Extreme Risk Protection Order” (ERPO) law, commonly known as a “Red Flag” law, which allows authorities to seize firearms from individuals deemed to be a threat. Burg, joined by the Association of New Jersey Rifle & Pistol Clubs, argues that the state’s laws are infringing on constitutional gun rights, particularly the right to self-defense outside the home.
The case is Burg v. Platkin, D.N.J., No. 1:24-cv-10076, a complaint filed on 10/25/24.
Burg’s case started with a confrontation during his drive to an Independence Day event in July. According to court documents, another driver aggressively tailgated and threatened him. Feeling trapped and threatened, Burg displayed his pistol to discourage the driver from further aggression, an act Burg describes as lawful self-defense. However, after the other driver reported him to the police, a New Jersey county prosecutor issued a “temporary extreme risk protection order,” leading to Burg’s firearms being seized by state authorities.
Burg’s lawsuit, filed on October 25 in the U.S. District Court for New Jersey, contends that the ERPO law, along with the state’s strict regulations on firearm locations, violate the Second Amendment. His attorney criticized the state’s reliance on “ex parte” orders, which allow gun seizures without the gun owner’s prior knowledge or a chance to present their side. He argues that these laws fundamentally deny due process, allowing authorities to confiscate firearms based on limited evidence, potentially even on hearsay.
The legal stakes are high for New Jersey gun owners. In recent years, the U.S. Supreme Court has underscored the right to carry firearms outside the home in cases like New York State Rifle & Pistol Association v. Bruen (2022). However, the court also upheld firearm restrictions in cases involving threats to public safety, as seen in U.S. v. Rahimi earlier this year, suggesting a balancing act between Second Amendment rights and public safety.
Related Comments by NJ’s Gun Lawyer Evan Nappen.
Attorney General Matthew J. Platkin, defending the ERPO law, maintains it’s a vital tool for public safety, emphasizing that it’s only applied when courts identify a “significant risk” to others.
But gun rights advocates like Burg argue that these laws open the door to widespread abuse. They fear that law-abiding citizens could have their firearms seized with little chance to challenge the order, particularly if a single accusation is all that’s required to trigger the process.
The complaint highlights Burg’s background as a law-abiding attorney and constitutional advocate, emphasizing that if a licensed gun owner with no criminal history can face such a penalty, any New Jersey gun owner could face similar risks. Supporters argue this case is pivotal in the national debate over “Red Flag” laws, and its outcome could influence other states that have adopted similar gun seizure laws.
Burg’s case brings to light growing concerns among gun rights advocates over ERPO laws, often criticized for bypassing constitutional protections. As Burg seeks to overturn New Jersey’s “Red Flag” law, many are watching closely, believing the lawsuit could set a precedent for defending gun rights against government overreach.
platkin states “public safety” as a valid reason for erpo’s/red flag laws. don’t believe that i have ever seen those words in the Second Amendment text, nor in the history of American law.
if that person is a “significant risk” why aren’t they in jail or psych ward, somewhere were they couldn’t “possibly” harm themselves or others? seems like they are not that concerned about public safety.
ex parte orders, no able to face you accuser, property seizure; doesn’t seem like the government cares about citizens rights either.
This guy thinks he’s just de-escalating a situation, But sets himself up for a gun confiscation should have waited till other driver used vehicle as a weapon and then used his weapon to defend himself legally I think it’s critical that everybody should start using dash cams so there is no Debate on what actually happened
In most States he would be guilty of brandishing. Also, he should have been the first to call the police and done so instead of displaying his firearm.
“Brandishing” – another idiotic and incorrectly defined term used to screw gunowners. Showing someone you are armed as a means of defusing a potentially bad situation should not be illegal, it should be encouraged!
The display of a means of force could also be used to “discourage” the government.
In other words, if the government shows a bias against weapons owners, then wear your weapon openly to show them there will be a problem if they continue.
HLB