An extreme risk protection order (ERPO) is a gun violence protective order which prohibits individuals who pose a risk to themselves or others from purchasing, owning, or possessing a firearm or ammunition. The assumption behind these orders is that the individual may not have done anything yet, but they are a threat to themselves and those around them.
Red Flag Law Timeline
The United States Constitution gives citizens the right to possess firearms, but that right is not absolute. In 1999, the state of Connecticut was the first in the nation to enact a red flag law after a mass shooting. It was followed by California (2014) and Washington (2018). In Indiana, when a mentally unwell man slew a police officer, they passed theirs in Florida. In 2018, New Jersey passed the Extreme Risk Protective Order Act as it saw a troubling rise in gun violence. Since the law has been in effect, more attention has been focused on gun violence prevention, and at least one ERPO has been issued daily. It was observed that visible signs by the perpetrators were indicators of potentially dangerous behavior.
Primary Purpose of an ERPO in New Jersey
An ERPO allows the courts to seize guns and weapons from those suspected of posing a risk to the community or themselves. The individual can neither purchase them nor obtain a permit to purchase or carry them if a judge determines that the individual is a danger to themselves or their community and has been allowed to have a firearm.
Who Can Request an ERPO?
A law enforcement officer, member of the household, or family member with whom the individual does not reside can request an ERPO. The Petition for Temporary Extreme Risk Protective Order can be filed at the Criminal Division of the County Superior Court, or at a local law enforcement agency. Other people may also submit a request, but it has to be done through the local law enforcement agency. The complainant explains the potential danger to law enforcement, and once having been convinced, the police officer requests the order. In these situations, the order can be requested from anyone within the individual’s circle of influence.
Distinctions Between a Temporary (TERPO) and a Final (FERPO) Order
The TERPO only requires testimony from the petitioner or law enforcement, and the respondent is not present at the hearing. The hearing is expedited, and testimony is received from the petitioner or affidavit. To obtain a TERPO, probable cause must be shown. If the individual owns or possesses firearms and ammunition, presents an immediate danger of bodily injury by owning or possessing firearms or ammunition, or is the subject of or has violated a temporary or final restraining order, they qualify for a TERPO. The respondent cannot avoid this process.
The judge considers many variables to apply a TERPO. Most of them involve direct violence or possible violence, like having an ERPO or having violated one, having a restraining order or having violated one, a juvenile record with violent charges, criminal history, or any additional information offered by law enforcement or the prosecutor.
In 10 days, a hearing for the FERPO will be held. The respondent attends the hearing providing witnesses, submitting documents and information, and cross-examining witnesses. This is not something you want to do without a lawyer.
Standard of Proof for an ERPO – A Preponderance of Evidence
To obtain a Final Extreme Risk Protection Order, the petitioner must show that their evidence is more solid and convincing than the respondent’s. That is to say, the facts in the petitioner’s case are more probable than not. A FERPO requires a preponderance of the evidence, which is a kind of proof that is less than reasonable doubt but does require proof beyond a reasonable doubt. At the close of the hearing, if it is decided that the respondent is a danger to themselves and others, an order will be made effective to prevent them from owning, possessing, or purchasing a gun or other weapon. They will have to give up their gun permit(s) as well. If it is later known that the weapons belong to someone other than the respondent, and it can be proven, the property may be returned to the owner.
The court looks at many relevant factors when determining whether or not a FERPO will be issued. Factors under consideration include: if the respondent has a history of violence either as an adult or juvenile to themselves or others, has ever used or brandished a firearm, recently purchased a firearm, weapon, or ammunition, has an addiction or is receiving treatment for that addiction, has mental health issues, has been institutionalized involuntarily, is recovering from mental illness issues or has a history or prior arrests of threatened physical force, in terms of arrests such as animal cruelty, stalking, domestic violence or other violent acts. The court also accounts for whether the respondent has violated or been the subject of a restraining order, a sexual assault restraining order, a separate order. The existence of, or violation of, another protection order is another critical factor.
Implications of a FERPO in NJ. Can It Be Appealed or Terminated?
To terminate or lift a FERPO, either party can submit a motion and inform the party that petitioned for the order initially. Once everyone has been served, a hearing will be calendarized, and on that day, the court will consider whether to terminate the order. The interested party has the burden of proof. They must prove they no longer pose a danger to themselves or anyone else and that their ownership or control of a firearm is not a safety concern. The judge will apply the factors used to determine the necessity of an order, such as the arrest record and the person’s mental health under the FERPO.
Speak to a Morristown Extreme Risk Protective Order Attorney if You Have a Case in Morris County, NJ
Once you are named in an ERPO in New Jersey, your weapons and gun rights are in jeopardy. This requires a skillful, aggressive defense. A solid gun rights lawyer can advise you on how to best defend against a final extreme risk protective order and work on your behalf to avoid an ERPO being made final altogether. If that is not a possibility, an attorney can strategize and assist you with the complex process of requesting to have the order removed because its results are far-reaching. As a dedicated defender of clients facing guns and weapons violations of all kinds in the state of New Jersey, our attorneys will fight for your rights passionately and give you the peace of mind that your case is in excellent hands. We serve areas like Chatham, Harding, Morris Plains, Florham Park, Morristown, Riverdale, Roxbury, Hanover and other towns in Morris County, and statewide.
Call 973-524-7238 to speak with a lawyer free of charge regarding your New Jersey ERPO questions. We are entirely at your disposal and ready to ensure your right to bear arms is not infringed upon.