Lawyer Who Flashed Gun at Motorist Sues Over NJ Red Flag Law (1)

A former New Jersey congressional candidate and attorney who had his guns confiscated after he flashed his pistol at an aggressive driver is suing the state to eliminate several gun laws.

David Burg, a business and entertainment lawyer, is alleging New Jersey’s restrictions violate the Second Amendment. The state’s extreme risk protection order—commonly referred to as a “red flag law"—and limitations on possessing guns in sensitive places like cars infringe the right to keep and bear arms, he argues.

“New Jersey is piling on its suppression of the fundamental right to keep and bear arms using every possible means,” he said in his complaint filed Friday in the US District Court for the District of New Jersey. The Association of New Jersey Rifle & Pistol Clubs Inc. also joined Burg as a plaintiff.

Burg, who ran against Rep. Chris Smith (R) in the 2022 primary, said the state’s limits on where guns can be bought does not meet the “justifiable need” requirement to bear arms outside of specific places. He also claimed the red flag law inappropriately strips individuals of firearms and delays them being returned, especially for gun-owners who face corresponding criminal penalties alongside weapons confiscation, and is part of the state’s “blatant refusal” to follow US Supreme Court precedent.

Burg’s suit highlights two major debates across firearm rights litigation: what places are sensitive enough for firearm prohibitions, and what due process must be given to firearm owners before guns are confiscated by police.

Those questions clash in Burg’s case. The other driver in Burg’s incident reported the gun to police, and a county prosecutor received an ex-parte order allowing police to temporarily confiscate Burg’s guns.

The US Supreme Court, in its 2022 ruling in New York State Rifle & Pistol Association v. Bruen, found a distinct constitutional right to bear arms outside of one’s home. But earlier this year, in U.S. v. Rahimi, the court upheld confiscation of a man’s firearms in a domestic violence context because he posed a credible threat to the safety of others.

Burg is represented by Hartman & Winnicki, PC.

Attorney General Matthew J. Platkin (D) issued a statement saying he looked forward to defending the state’s firearm laws at a time when gun violence is a greater threat than ever.

“New Jersey’s Extreme Risk Protection Order Act, which Governor Murphy signed into law in 2018, offers a critical tool that law enforcement has been using for years to protect the public from the individuals a state court has specifically found to pose a significant risk of danger,” he said in a statement.

The case is Burg v. Platkin, D.N.J., No. 1:24-cv-10076, complaint filed 10/25/24.