For many people in New Jersey, gun ownership is an important right. However, there are instances when the right to own or possess a weapon may present issues, such as when an individual is suicidal or has made threats against a member of their household. The NJ Legislature passed the Extreme Risk Protective Order Act of 2018 to provide a procedure under which a court could order the removal of firearms from a person it deemed an immediate threat. These orders are modeled after domestic violence restraining orders, which also involve a procedure for firearm removal.
Extreme Risk Protective Order (ERPO) Petition
The person seeking an extreme risk protective order (ERPO) is referred to as the petitioner and is often a family or household member. The petitioner will provide information on why they believe the respondent is a threat to themselves or others. If the petition is successful, the court will enter a final order limiting the respondent's right to possess or own a firearm indefinitely.
The attorneys at the Lento Law Firm are experienced with extreme risk protective orders (ERPOs) in New Jersey. If you wish to seek an ERPO or have been served with notice of an ERPO hearing, call the Lento Law Firm Criminal Defense Team at 888-535-3686 or leave your details online, and we will contact you.
Who Can File an ERPO Petition
To file an ERPO Petition, the petitioner must have a protected relationship with the respondent. This may include:
- A partner or spouse.
- A former partner or spouse.
- A member of the respondent's household.
- A co-parent with the respondent or a person currently pregnant with the respondent's child.
- A current or past dating partner.
If a person is aware of an extreme threat but is not a protected person described above, they need to contact and work through the police for the removal of weapons.
Procedure for Respondent Law Enforcement Officers
An unfortunate reality for family members of police officers is that they may use their service weapon or other firearm to harm themselves or others. For this reason, a fellow law enforcement officer or family member may have concerns regarding whether a law enforcement officer may safely possess a firearm. An EPRO sought against a police officer must be filed with the law enforcement agency where the officer is employed. This will commence an internal affairs investigation by the agency. The county prosecutor will ultimately determine whether to seek a petition with the court. For this reason, the family or household members of law enforcement officers may not file petitions with the court but only through the internal affairs process.
Where to File an ERPO Petition
Family and household members (other than law enforcement) may file in the Superior Court, Criminal Division, from 8:30 a.m. to 4:30 p.m. on weekdays. The procedure involves electronic filing of the petition, and court staff will assist the petitioner. The court staff will input answers into the Protective Restraining Order System (PROS) on the petitioner's behalf.
Questions on the ERPO Petition
When a petitioner seeks an ERPO in court, they will be asked a series of questions regarding the respondent's history and behavior.
- Has respondent had any history of threats or acts of violence?
- Does the respondent have a history of using physical force against another party?
- Has the respondent had a domestic violence restraining order against them, or have they violated a restraining order?
- Has the respondent been the subject of a protective order, or have they violated a protective order issued under the Sexual Assault Protection Act?
- Has respondent had any prior arrests, charges, or convictions for a violent offense, a disorderly person's offense, stalking, or domestic violence?
- Has the respondent had any prior arrests, charges, or convictions for animal cruelty or any history of cruelty to animals?
- Has the respondent had any history of drug or alcohol abuse, addiction, or recovery?
- Has the respondent purchased a firearm or other deadly weapon recently?
- Has the respondent displayed or brandished a weapon recklessly?
- Does the respondent have a current or past ERPO?
- Has the respondent ever violated an ERPO?
- Has the respondent had any history of involuntary commitment for mental health issues?
- Is the respondent receiving mental health treatment currently, or have they received treatment in the past?
- Has the respondent complied with this mental health treatment?
- Does the respondent have a diagnosis of a mental health disorder?
The first eight questions above contain the required standard that a court must consider in determining whether to enter an ERPO. The information elicited by questions 9-15 is considered at the court's discretion.
Standard for Granting an ERPO Petition
The petitioner must show good cause to believe that the respondent poses an immediate danger to themselves or others by possessing or owning a firearm. If the court issues a temporary order, the court will issue a search warrant pursuant to N.J.S.A. 2C:58-26(b). The court may only issue this search warrant if:
- The respondent owns or possesses a firearm.
- The respondent poses an immediate and present danger to self or others by owning or possessing a firearm.
- The firearms are at a "specifically described location." (This requirement ensures that the search is not unreasonable under the Fourth Amendment.)
Please remember that the court is considering whether the respondent can continue to own or possess a firearm legally. If the court grants the Petition, the respondent will be required to surrender "all firearms and ammunition in the respondent's custody or control, or which the respondent owns or possesses." The respondent will also need to surrender any purchaser identification card or permit to purchase or carry a handgun. In other words, while the search warrant may provide a limited scope, the law requiring the surrender of firearms is quite broad.
Denial of TERPO Order
If the court denies the petition for a temporary order (TERPO), the petitioner may request immediate review by an emergency Superior Court judge. The court will inform the petitioner of this right, and if the petitioner indicates that they wish immediate review, law enforcement will contact the on-call judge. This on-call Superior Court judge will telephonically review the petition and conduct a hearing. If a Superior Court judge denies the temporary extreme risk protective order, the petitioner can file an appeal to the Appellate Division as of right within 45 days.
Temporary Orders vs. Final Orders (TERPOs vs. FERPOs)
Extreme risk protection orders may be either temporary or final. A TERPO is a temporary order and is in place for 10 days or less. After the initial Petition, the court will put a temporary extreme risk petition order, or TERPO, in place until the final hearing. The expedited TERPO hearing occurs first, during which the respondent is not present. The court will consider the petitioner's statement under oath but will not hear the testimony of the gun owner. The standard used for this temporary review is probable cause, or more likely than not. This process will be automatic at this point, and the respondent cannot avoid the TERPO. A TERPO is a temporary or stop-gap measure, but a FERPO may be long-term in nature.
If the court grants the temporary order (TERPO), it will issue a warrant to search for and seize weapons from the respondent. At this point, the respondent will be served with notice of a final extreme risk protective order (FERPO) hearing. The court will hold the FERPO hearing within ten days. The respondent can attend the FERPO hearing, provide evidence, and cross-examine witnesses. If the respondent prevails at the FERPO hearing, law enforcement will return the weapons seized. At that point, the respondent would again be able to legally possess and own weapons. On the other hand, if the Petitioner prevails at the final hearing, a final order for the removal of firearms will be put in place. In that case, law enforcement will retain the weapons seized indefinitely.
Notice to Law Enforcement
The court will forward a copy of any ERPO to the county prosecutor, who will forward the ERPO to the appropriate law enforcement agencies, including chiefs of police, members of the State Police, and any other appropriate law enforcement agencies or courts. An ERPO will be in effect throughout the state and enforced by all law enforcement officers.
Final Hearing
The FERPO, or final hearing, is the first opportunity for the respondent to answer the allegations in the petition. The court will set a final extreme risk protection order (FERPO) hearing within ten days of filing the petition. The respondent will be able to cross-examine witnesses and present evidence at this hearing. After hearing all the evidence, the court will grant the petition if it finds it is more likely than not that the respondent poses a danger to themself or to others by possessing a firearm. (This standard is referred to as "preponderance of the evidence.”) If the court finds this is true, it will enter a final extreme risk protective order (FERPO). This order will bar a respondent from having custody of or owning, possessing, purchasing, or receiving a firearm.
How Long Is a FERPO in Effect?
A FERPO is in effect until further order of the court. In other words, the order has no date on which it will lapse or expire. It may be in place for the remainder of the respondent's life if they take no action to have the order terminated. This is why it is vital that a respondent be represented by an experienced attorney at a FERPO hearing.
Rights of Respondent Gun Owners
Many people are shocked to learn that a New Jersey resident could indefinitely lose the right to own or possess a firearm. The entry of a final extreme risk protective order (FERPO) is an extremely serious issue for gun owners. It is important to note that a respondent must comply with law enforcement as they act to seize weapons. Because of the limited time frame of the extreme risk protective order process, it is vital to contact counsel immediately when you are served with notice.
Termination of a Final Extreme Risk Protective Order
If you have lost the right to possess or own a weapon after the grant of a FERPO, you may wish to seek to have this order terminated by the court. The FERPO may be indefinite, but if circumstances have changed since the hearing, you might wish to seek the return of your weapons and the right to possess and own them.
The respondent may apply for termination of the final FERPO at any point after it is issued. In making the determination to terminate a FERPO, the court will consider the factors listed in the original petition and other relevant evidence, including mental health treatment. The burden of proof will be on the respondent to prove that they no longer pose a danger to themselves or others by owning or possessing a firearm. Because it is difficult to meet this burden and convince the court, a respondent should be represented by an experienced attorney before undertaking a termination of a FERPO. The Lento Law Firm represents clients seeking the termination of a FERPO and the restoration of the right to own and possess a firearm.
How the Lento Law Firm Can Help
If you are concerned that a family member or loved one cannot safely have access to weapons, or if you have been served a TERPO, contact the Lento Law Firm Criminal Defense Team immediately. The attorneys at the Lento Law Firm represent both petitioners and respondents in ERPO cases and will vigorously pursue the best outcome possible in your case. The Lento Law Firm Team has represented countless NJ clients in the court system and protective order process. Call the Lento Law Firm at 888-535-3686 or leave your details online, and we will contact you.
