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Extreme Risk Protective Orders in New Jersey: How They Work

What an ERPO is

New Jersey's Extreme Risk Protective Order Act of 2018, often called the “red flag” law, took effect on September 1, 2019. It lets a court order a person who poses a significant danger of bodily injury to themselves or others by having a firearm to give up their firearms and ammunition. The case is civil; a petition alone does not lead to an arrest. It is not a substitute for emergency help: call 911 for immediate danger, or call or text 988 in a mental health crisis.

Who can file, and where

Only a law enforcement officer, or a family or household member of the person the order would be against (the respondent), can file. Family or household members include current or former spouses, partners and dating partners, household members, and anyone who has or expects a child with the respondent.

A family or household member can file at the Superior Court, Criminal Division, during weekday business hours, or at any time at a law enforcement agency, with no fee (the New Jersey Courts' firearm removal self-help page explains the steps). The petition is filed in the county where the respondent lives, or in the petitioner's county if the respondent lives out of state. A petition against a law enforcement officer goes to the officer's own agency instead.

The temporary order

A judge can issue a temporary order (TERPO) without the respondent present, on good cause to believe the respondent poses an immediate and present danger of bodily injury to themselves or others by having a firearm. The judge weighs factors such as threats or acts of violence, restraining orders, substance abuse and recently acquiring a firearm. The respondent must then surrender all firearms and ammunition and any firearms purchaser ID card or handgun permit.

The final hearing

The temporary order stays in place, and a final hearing is usually held within 10 days of filing. The respondent can testify, call witnesses and cross-examine. Under the courts' ERPO guidelines, the usual trial rules of evidence do not apply.

The judge issues a final order (FERPO) only on finding it more likely than not that the respondent poses a significant danger of bodily injury to themselves or others by having a firearm. Either side can appeal the final decision to the Appellate Division within 45 days after it is entered. Knowingly violating an order is a crime, as is having a firearm or ammunition while subject to one.

How long an order lasts, and what it means for permits

A final order has no end date, but either side can ask the court to end it; a respondent who asks must show it is more likely than not that they no longer pose a significant danger. Return is not automatic: after an order ends, the respondent must ask the agency holding the firearms, and it must return them within 30 days unless one was reported stolen or the respondent is otherwise barred from having firearms.

Being subject to an ERPO, or having violated one, bars a person from getting a firearms purchaser ID card or a permit to purchase or carry a handgun; any card or permit already held becomes void.

What we do

We represent people on both sides of New Jersey restraining order cases, and people charged with weapons offenses. Because the final hearing comes quickly, an early start generally leaves more time to prepare.