Highly Skilled New Jersey Weapon Attorneys That Include A Former Prosecutor Who Was The Director Of The Guns Task Force
Gun control was expanded in New Jersey as the result of adoption of a red flag law known as the “Extreme Risk Protective Order Act of 2018“. This regulation allows a family or household member, police or prosecutor to obtain a court order barring an individual from possessing, owning or purchasing a firearm because of the extreme risk presented by their having access to a weapon. If you have been served with a temporary extreme risk protective order, your time to act is now because you only have approximately ten (10) days to prepare for the final extreme risk protective order hearing that will determine whether your right to bear arms (i.e. possess or own a handgun, shotgun, rifle or other firearm) is permanently lost. Hiring a skilled defense attorney is unquestionably your best course of action to protect yourself.
We are the Law Offices of Jonathan F. Marshall, a team of criminal lawyers with qualifications that are truly rare. We can offer you:
- Over 200 years of combined experience defending protective order, criminal contempt and weapon offenses in New Jersey
- 11 lawyers that specialize exclusively in criminal defense
- Former County prosecutors that have served as Director of the Gun Task Force, Major Crimes, Juvenile Unit, Special Operations and even an entire Trial Division
- Certified criminal trial attorneys
- A long and rich history of success in representing clients in counties throughout the state
To speak to an attorney at our firm about the extreme risk protective order that was filed in your case, you can contact our firm anytime 24/7 at 877-450-8301. One of our lawyers will be happy to provide their insight as to how we can avoid entry of a final extreme risk protective order. The commentary that follows outlines some of the more common questions in this area of law.
Who Can Obtain A Temporary Extreme Risk Protective Order?
There are two ways that a temporary order barring an individual from access to firearms may arise in this context. The first way is by a family or household member of the defendant/respondent filing a petition for a temporary extreme risk protective order with the Criminal Division of the New Jersey Superior Court. The second way this restraint can arise is as the result of a petition being filed by law enforcement (i.e. police or prosecutors) as the result of their own investigation or at the request of a third party.
What Must Be Shown In Order For A Temporary Extreme Risk Protective Order To Issue?
The petition must contain a sworn affidavit outlining the facts that allegedly support the existence of extreme risk by virtue of the owners continued access to firearms. The petition should also indicate, if possible, the nature and location of the weapons. Based on the contents of the petition, as well as any other relevant evidence presented, a Superior Court judge must determine whether or not a temporary order is necessary to ensure the protection of the public. The court must consider the factors set forth in N.J.S.A. 2C:58-23f in making this determination, including:
- History of threats or acts of violence by the respondent directed toward self or others;
- History of use, attempted use, or threatened use of physical force by the respondent against another person;
- Existence of a temporary or final restraining order issued pursuant to the Prevention of Domestic Violence Act of 1991;
- Existence of a temporary or final protective order or violation thereof, issued pursuant to the “Sexual Assault Survivor Protection Act of 2015;
- Prior arrests, pending charges, or convictions for a violent indictable crime or disorderly persons offense, stalking offense or domestic violence offense;
- Prior arrests, pending charges, or convictions for any offense involving cruelty to animals or any history of acts involving cruelty to animals;
- History of drug or alcohol abuse and recovery from this abuse; and
- How recently the firearm, ammunition, or other deadly weapon was acquired.
The New Jersey Administrative Office of the Courts also issued Guidelines for Extreme Risk Protective Orders and added seven (7) additional factors that should be considered by the judges before ruling on a petition for a temporary extreme risk protection order, including whether the respondent:
- Recklessly used, displayed, or brandished a firearm;
- Was previous subject to extreme risk protective order;
- Previously violated an extreme risk protective order issued against him or her;
- Has any prior involuntary commitment in a hospital or treatment facility for persons with psychiatric disabilities;
- Received or is receiving mental health treatment;
- Complied or has failed to comply with any mental health treatment; and
- Received a diagnosis of a mental health disorder.
The court must issue a temporary order of protection if it believes, based on a preponderance of the evidence presented and consideration of these factors, that seizure of the weapons is necessary to protect the public.
How Does A Temporary Extreme Risk Protection Order Effect Gun Rights?
A temporary extreme risk protective order prohibits a respondent from: (1) possessing, controlling, owning, purchasing, or receiving firearms or ammunition; and (2) securing or holding a firearms purchaser identification card, permit to purchase a handgun pursuant to N.J.S.2C:58-3, or permit to carry a handgun pursuant to N.J.S.2C:58-4.
Issuance of a temporary order also triggers an immediate surrender of firearms and ammunition in the respondent’s custody or control, or which the respondent possesses or owns, and any firearms purchaser identification card, permit to purchase a handgun, or permit to carry a handgun held by the respondent.
Do The Police Have The Right To Enter My Home If A Temporary Extreme Risk Protective Order Has Been Issued?
Police must have a search warrant to seize weapons in accordance with a temporary extreme risk protection order. The court is required to issue a search warrant for weapons if the respondent fails to surrender the firearms in his custody or control.
Can An Individual Prevent The Court From Issuing A Temporary Risk Extreme Protection Order?
Unfortunately, the process for issuance of a protective order in this context does not involve hearing the respondent’s side of the story or consideration of evidence that refutes the allegations in the temporary petition. The opportunity to challenge the allegations is at the final extreme protection order hearing which takes place within 10 days of issuance of the temporary order.
Is There A Way To Regain The Right To Possess and Own A Firearm If I Lose My Final Extreme Protection Order Hearing?
Yes. The court may vacate and dismiss a final extreme risk protection order at the request of the petitioner, respondent or law enforcement if it finds, based on a preponderance of the evidence submitted, that the respondent no longer poses a significant danger of causing bodily injury to the respondent’s self or to other persons by having custody or control of, owning, possessing, purchasing, or receiving a firearm.
What Happens If Someone Violates A Temporary or Final Extreme Risk Protection Order?
The implications of an extreme risk protection order are similar to those for a retraining order in New Jersey. Violation of a extreme protection order results in criminal offense for contempt under N.J.S.A. 2C:29-9. This is a fourth degree crime that can result in up to 18 months in prison and a fine of up to $10,000.
Extreme Risk Protective Order Attorneys in New Jersey
The ability to keep and bear arms is a fundamental right under the Second Amendment of the Constitution. Considerable effort is exhausted to enjoy this right in NJ given all of the regulations attached to purchasing, owning and possessing firearms, particularly handguns. Having this right extracted without any notice whatsoever can be shocking. The key when this occurs is to enlist a talented lawyer who can ensure that you have every opportunity to avoid entry of a final order. The lawyers at the Law Offices of Jonathan F. Marshall are well equipped to represent you in this capacity as not only accomplished criminal litigators but also as longtime gun owners. To speak to an attorney on our team immediately, call 877-450-8301.