The New Jersey red flag law gives courts the power to remove firearms from someone who may be dangerous. This is often called an Extreme Risk Protective Order (ERPO). An ERPO can lead to serious restrictions on your rights while a court sorts out the facts. If you’re dealing with an ERPO request made against you, working with an experienced lawyer can give you a better sense of what to expect during the process.
What Are Red Flag Laws?
Red flag laws let courts order the removal of firearms when there’s good cause to believe someone presents an immediate risk of danger to themselves or others. These laws help prevent violence before it occurs. In New Jersey, these orders don’t involve criminal charges on their own. They work more like restraining orders that focus on gun access and possession.
The goal of an ERPO is to reduce the risk of harm when evidence points to potential danger. You aren’t accused of a crime simply because someone filed a petition against you. However, violating an ERPO can lead to criminal consequences.
Does New Jersey Have Red Flag Laws?
New Jersey enacted the Extreme Risk Protective Order Act in 2019. Under this statute, courts can issue a temporary or final ERPO against someone determined to pose an immediate and present danger to themselves or others. A temporary order may be granted quickly and without your presence. The temporary order stays in place until it’s revoked or the court grants a final order. A final order requires a hearing where both sides can present evidence.
Courts can prohibit you from possessing or buying firearms and ammunition during the order. You will also be required to surrender any firearms, ammunition, and firearm purchaser identification cards you currently have. Law enforcement collects them once you’re served with the order, and they’ll remain in storage until the order is lifted.
Who Can Petition?
Red flag laws in New Jersey allow several groups to file ERPO petitions:
- Current and former spouses, domestic partners, and civil union partners
- Current and former dating partners
- Current or former household members
- Co-parents, co-guardians, and anyone expecting a child with the person
- Law enforcement
Officers can file a petition based on their own investigation or after receiving information from witnesses. Family or household members and dating partners can file in the Superior Court or with the local police department. Anyone not in these categories must ask a law enforcement agency to file the petition.
Courts don’t grant orders automatically. Judges review several factors laid out in the statute, including any prior threats, acts of violence, or ERPOs and recent firearm purchases. The petition must explain why the respondent poses a significant danger, including specific behaviors or threats that support the request.
How Does the Process Work?
The ERPO process moves quickly, which can be difficult when you’re trying to understand your rights. Here’s how it usually works:
- A temporary order may be issued right away. Superior Court judges review petitions for temporary ERPOs on an emergency basis. The judge can grant a temporary order on the same day, based on the allegations in the petition. These temporary orders don’t require your presence.
- Law enforcement serves the order and collects firearms. Once the judge approves a temporary order, law enforcement serves it on the respondent. Police will seize firearms, ammunition, and permits after serving the order. Anything seized stays in secure storage until further court action.
- A hearing is scheduled for a final order. Courts must schedule a hearing within 10 days of issuing the temporary order. You have the right to attend and present evidence, including your own testimony, if your lawyer thinks it’s wise. The petitioner must prove that you pose a significant danger. The standard of proof required is a preponderance of the evidence, which is much lower than “beyond a reasonable doubt” in criminal court. Judges review the law and consider any new information that came up during the hearing.
- The judge decides whether to issue a final ERPO. A final order bars you from buying, owning, receiving, or possessing firearms and ammunition. A final ERPO has no automatic end date. You must apply to have it terminated, which means you must show that you no longer pose a significant danger. If the court terminates the ERPO, you can request that law enforcement return your firearms and related items.
How a Criminal Defense Attorney Can Help
ERPO cases are fast and involve high pressure. Many people are shocked or confused when they learn someone filed a petition against them. Fortunately, a criminal defense attorney can step in to guide you through the process and protect your rights during the hearing by:
- Reviewing the petition and preparing a response – You may not know about the petition until you’re served with a temporary ERPO. Your lawyer can review the petition and prepare your response. They’ll also gather evidence that supports your position, including witness statements and communications.
- Challenging the petitioner’s evidence – Many petitions rely on subjective observations or incomplete information. Cross-examination can reveal these gaps. Your lawyer can help you respond to questions about prior police contacts, mental health concerns, or past threats. They can also help you demonstrate efforts you have made to improve your risk level, such as mental health treatment and drug or alcohol abuse recovery programs.
- Complying with an ERPO – Violating an ERPO can lead to criminal charges, including contempt of court. Your lawyer will explain where you cannot go, what you cannot possess, and how to handle firearms stored with friends or family before the order was issued. This guidance can help you comply with the order while the case moves toward resolution.
Call Our New Jersey Criminal Defense Attorneys for Help Today
An ERPO is not something to take lightly. You deserve representation from attorneys who know how New Jersey’s red flag law works and appear in courts across the state every day.
At the Law Offices of Jonathan F. Marshall, our team has more than 250 years of combined experience defending people charged with crimes. Our case results include dismissed weapons charges, downgraded offenses, and not-guilty verdicts in contested matters. Former client Larissa K. says, “When I spoke to Jonathan and his associates I immediately felt much better, when we went to court he got me out of everything and back into another program.”
The Law Offices of Jonathan F. Marshall maintains over a dozen offices throughout New Jersey. If someone filed a petition under New Jersey’s red flag law against you, call us today to speak with an experienced defense attorney in your free consultation.
