When police come to your home and take your firearms, it can be shocking, confusing, and frightening. In New Jersey, this often happens under a recently enacted law called the Extreme Risk Protective Order (ERPO) N.J.S.A. 2C:58-20.
Here’s what you need to know, and what to do next.
What Is an ERPO in New Jersey?
An Extreme Risk Protective Order (ERPO) allows law enforcement or a family member to ask a judge to temporarily remove firearms from someone they believe poses a risk to themselves or others. N.J.S.A. 2C:58-21.
Under New Jersey’s “Red Flag” law, police can seize your guns without advance notice if a temporary ERPO is issued. You may not even know there’s a complaint until officers arrive at your door. A petition for a TERPO may be filed at any New Jersey Superior Court or with the local police in any New Jersey municipality.
If that happens, stay calm. Understand that this is a civil order, not a criminal charge. But it’s serious, and it can have lasting effects on your ability to own or possess firearms if it becomes permanent.
Step 1: Stay Calm and Comply
If police come to your home with a court order to remove your firearms, do not argue or resist. Even if you believe the order is wrong, arguing in the moment will not help your case, and could make things worse.
Ask to see a copy of the order and make a note of which court issued it. The officers will typically provide you with paperwork explaining that a Temporary Extreme Risk Protective Order (TERPO) has been filed.
Comply fully with the order. You’ll have an opportunity to challenge it, but that opportunity comes in court, not at your doorstep. If you violate the ERPO’s terms, you run the risk of being charged with a crime, specifically 2C:29-9(e), which is a fourth-degree crime.
Step 2: Contact an Attorney Immediately
Once your firearms are seized, the court will schedule a hearing to determine whether the temporary order should become a Final ERPO (FERPO). The statute requires that a hearing be held within 10 days of the filing of a complaint against you. N.J.S.A. 2C:58-24.
This hearing is your only chance to contest the order and prove that you are not a danger to yourself or others. You need an experienced lawyer who understands New Jersey’s firearm laws and ERPO procedures.
At Sutnick & Sutnick, we act quickly, reviewing the complaint, preparing evidence, and representing you at the hearing to fight for the return of your firearms and to protect your Second Amendment rights.
Step 3: Understand What the State Must Prove
The burden is on the State (usually through the County Prosecutor’s Office) to prove that you pose a significant risk.
At the hearing, there is no jury. A Superior Court Judge will hear the facts and evidence in accordance with the New Jersey Rules of Evidence before deciding the case by a “preponderance of evidence.” This civil threshold asks whether it is “more likely than not,” or a 51% burden of proof on the State, that you pose a significant danger of causing bodily injury to self or others by having custody or control of, owning, possessing, purchasing or receiving a firearm. This threshold is lower than that in a criminal case, where the burden of proof is “beyond a reasonable doubt.”
In order to meet this threshold, the Prosecutor will call witnesses and even rely on police reports, statements, or social media posts as evidence.
The attorney’s job is to challenge that evidence: Cross-examine witnesses, expose exaggerations or misunderstandings, and present facts that show you are responsible, stable, and not a threat.
Even well-meaning family members or neighbors sometimes make ERPO requests out of fear, anger, or misunderstanding. That’s why it’s essential to have an attorney who can cut through the emotion and focus on the law and the facts.
Step 4: Prepare for Your Hearing
You’ll receive notice of your court date, which is your opportunity to tell your side of the story. With attorney guidance, you prepare documents, witness statements, and any evidence that supports your position, such as:
- Proof of safe and lawful firearm ownership
- Character references or mental health evaluations
- Lack of any criminal record or history of violence
You must appear in court on time and ready. A missed hearing can result in a Final ERPO, which permanently bars you from owning or possessing firearms in New Jersey.
Step 5: What Happens If the ERPO Becomes Final?
When determining whether to grant a FERPO, a New Jersey Superior Court Judge must consider the N.J.S.A. 2C:58-23(f) factors “as well as any other relevant evidence.” N.J.S.A. 2C:58-24.
If the court issues a Final Extreme Risk Protective Order, you’ll forever be prohibited from purchasing, possessing, or owning firearms in New Jersey. Your firearms will remain with law enforcement, and your information may be added to state and federal databases.
However, you may be able to request a review or modification later if circumstances change, and our firm can help file that petition when the time is right.
If the order is dismissed or denied, we’ll work to ensure your firearms are promptly returned.