GRECO v. GREWAL
3:19-cv-19145
D.N.J.Sep 29, 2020Background
- New Jersey enacted the Extreme Risk Protective Order Act (ERPO Act) effective Sept. 1, 2019, permitting Temporary ERPOs (TERPOs) that can prohibit firearm possession and trigger search warrants when the petitioner alleges an immediate danger.
- Administrative (AOC) and Attorney General directives clarified that issuance of a search warrant in conjunction with a TERPO requires a probable-cause standard, responding to State v. Hemenway.
- On Sept. 5, 2019, a TERPO petition (signed by “New Jersey Homeland Security”) was filed against Greco citing social-media posts and FBI contacts; a judge considered OHSP testimony, social-media exhibits, found threats/celebrations of mass shootings, and issued a TERPO and a no-knock search warrant.
- Township officers executed the warrant, seizing Greco’s firearms and ammunition; Greco’s FERPO hearing was later adjourned.
- Greco filed a § 1983 class-action complaint challenging the ERPO Act as unconstitutional and moved for class certification; after briefing, the District Court denied Greco’s Second Motion for Class Certification.
- The Court denied certification because Greco failed to meet Rule 23(a)’s commonality requirement: resolving each putative member’s claim would require highly individualized factual inquiries (e.g., whether a particular TERPO/search-warrant was based on probable cause), so a class-wide resolution is not feasible at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Commonality under Rule 23(a)(2) | Greco: ERPO enforcement involves uniform, unlawful policies and practices; the constitutionality question is common to all TERPO respondents. | Defendants: Individual TERPOs and related warrants rest on distinct factual records; each Fourth Amendment claim depends on individualized evidence. | Denied — Court: common legal question exists but individualized factual circumstances (probable-cause findings per case) defeat commonality; fails rigorous Rule 23 analysis. |
| Numerosity | Greco: Joinder impracticable; many TERPOs issued and future members accrue daily; resources and judicial economy support class. | Defendants: Greco’s numeric assertions are conclusory; no proof joinder is impracticable. | Not reached on merits; overall certification denied because commonality failed. |
| Typicality & Adequacy | Greco: His claims are typical and he will adequately represent class; no conflicts with others. | Defendants: Typicality undermined by individualized records; privacy/identification issues impede representation. | Not reached on merits; overall certification denied because commonality failed. |
| Rule 23(b) (relief class and ascertainability/predominance) | Greco: Class satisfies Rule 23(b)(2)/(b)(3) (arguments mixed/inconsistent in briefs). | Defendants: Predominance/ascertainability fail given individualized inquiries and privacy concerns. | Not decided on the merits; Court declined to address 23(b) once commonality failed; certification denied. |
Key Cases Cited
- Wal-Mart Stores v. Dukes, 564 U.S. 338 (2011) (commonality requires common contention capable of classwide resolution)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (plaintiff bears burden to prove Rule 23 elements by a preponderance)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (rigorous Rule 23 analysis; predominance/superiority explained)
- Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) (class certification requires rigorous analysis of Rule 23 prerequisites)
- Rodriguez v. Nat’l City Bank, 726 F.3d 372 (3d Cir. 2013) (focus of commonality is whether defendant’s conduct was common to all class members)
- State v. Hemenway, 216 A.3d 118 (N.J. 2019) (New Jersey Supreme Court held "good cause" standard insufficient for warrants; informed directives requiring probable cause)