NJ Red Flag Laws - ERPO Act

ERPO/Red Flag Law Attorney

In New Jersey, the law allows police to remove all firearms from someone who is an immediate threat of causing bodily injury to themselves or others by possessing or purchasing a firearm. The Extreme Risk Protective Order Act of 2018 (the ERPO Act) allows both law enforcement and family and household members to ask a court for permission to have all weapons removed immediately. Also, the Act allows the court to prevent someone from having the ability to obtain guns in the future.

This Act, or N.J.S.A. 2C:58-20 to -32, is also known as the “Red Flag” law and it is essentially a gun violence protective order.

It is important to contact an experienced NJ ERPO/red flag law attorney immediately if you or someone you care about has been served with a Temporary Extreme Risk Protective Order (TERPO). You have the right to fight the weapons seizure and the right to a hearing. You have a right to see all the evidence that a court will consider.

An experienced weapons/gun charges attorney can help you challenge the seizure and make sure your rights are protected.  If there is a protective order, you will be prevented from possessing or owning a firearm now and in the future. New Jersey has very strict gun laws and if you have a firearms permit or want the ability to obtain a permit in the future, contact an red flag law attorney today.

ERPO FAQs

The Extreme Risk Protective Order (ERPO) Process

According to the Act, a court shall issue the initial temporary ERPO or TERPO only if the court finds good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others by’ possessing a firearm.  The court is thereafter authorized to issue a search warrant for firearms and ammunition in “the possession, custody, or control of the respondent” or which the respondent could access, upon a showing of probable cause.

New Jersey’s law creates a two-stage process for issuing temporary and final orders to remove a person’s firearms and ammunition, firearms purchaser identification card, handgun purchase permit, and handgun carry permit. N.J.S.A. 2C:58-23 (authorizing TERPO); N.J.S.A. 2C:58-24 (authorizing FERPO).  The court first decides, based on an ex parte documentary record, if it will issue a temporary order to remove firearms. N.J.S.A. 2C:58-23.  Then, after a plenary hearing, the court decides if it will issue a final order to remove firearms indefinitely. N.J.S.A. 2C:58-24.  The ERPO Act is loosely modeled on the process for obtaining temporary and final domestic violence restraining orders.

In determining whether to issue a TERPO, a court must consider eight factors as to whether the respondent:

(1) has any history of threats or acts of violence by respondent directed toward self or others;

(2) has any history of use, attempted use, or threatened use of physical force by the respondent against another person;

(3) is the subject of a temporary or final restraining order or has violated a temporary or final restraining order issued pursuant to the “Prevention of Domestic Violence Act of 1991,” . . . ;

(4) is the subject of a temporary or final protective order or has violated a temporary or final protective order issued pursuant to the “Victim’s Assistance and Sexual Assault Survivor Protection Act of 2015,”;

(5) has any prior arrests, pending charges, or convictions for a violent indictable crime or disorderly persons offense, stalking offense or domestic violence offense;

(6) has any prior arrests, pending charges, or convictions for any offense involving cruelty to animals or any history of acts involving cruelty to animals;

(7) has any history of drug or alcohol abuse and recovery from this abuse; or

(8) has recently acquired a firearm, ammunition, or other deadly weapon. [N.J.S.A. 2C:58-23(f).]

The Legislature elucidated the eight factors are not exhaustive and other relevant evidence may be considered. Guideline 3(d) requires the court to consider three additional factors as to whether the respondent:

(9) has recklessly used, displayed, or brandished a firearm;

(10) has an existing or previous extreme risk protective order issued against him or her; and

(11) has previously violated an extreme risk protective order issued against him or her.

If a court finds at least one of the eleven “behavioral” factors, it may then consider four mental health factors as to whether the respondent:

(12) has any prior involuntary commitment in a hospital or treatment facility for persons with psychiatric disabilities;

(13) has received or is receiving mental health treatment;

(14) has complied or has failed to comply with any mental health treatment; and

(15) has received a diagnosis of a mental health disorder.

A finding that one of the above-referenced factors is established may not be enough to support the issuance of a FERPO. When determining whether to grant a FERPO, the court 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.

There is a lot of work to be done before a final ERPO hearing. It is important to know the law so that it is followed correctly and to make sure that all of your rights are protected. The facts of the case matter and an experienced attorney will help figure out what facts are important and how to present them effectively in court. We will fight for you and for what is fair.