An Extreme Risk Protection Order (ERPO) is a court order that prohibits individuals who pose a risk to themselves or others from possessing, purchasing, or owning a gun or other firearm. In New Jersey, ERPOs function as the state's “red flag” law. The law's intent is to protect the public from injury or death, but the law might potentially be intrusive against gun owners who pose no threat to anyone.
The Rise of Red Flag Laws
The Second Amendment to the US Constitution gives all Americans the right to possess firearms, but that right is not absolute. Since 1999, due to the increase in mass shootings, several states have passed red flag laws. In 2018, New Jersey passed its own red flag law, the Extreme Risk Protective Order Act. Since the law was passed, New Jersey courts have issued more than 350 ERPOs per year.
Who Can File for an ERPO?
A request for an ERPO may be filed by a family member or household member of the person against whom the order is being sought (the defendant), or by a prosecutor or law enforcement officer. A sworn petition must be filed with the court where the defendant resides. The petition must give details about why the defendant's possession of firearms poses an extreme risk. The petition must also identify any known location of weapons owned or possessed by the defendant. A hearing date will be set. These and related procedural issues are covered in guidelines issued by New Jersey's Administrative Office of the Courts. If you need help with an ERPO or related matter, contact Attorney Joseph D. Lento for expert help. He has helped scores of clients in similar situations.
What Happens if the ERPO is Granted?
Only the petitioner or law enforcement official is required to offer testimony in support of an ERPO at the initial hearing. Probable cause is required, but if the court grants an ERPO, the defendant will be required to surrender any guns, weapons, ammunition, licenses to own firearms, and the like. If needed, law enforcement officials can apply for a search warrant. After issuing the ERPO, the court will schedule, within ten days, another hearing to decide whether a Final Extreme Risk Protective Order (FERPO) is also needed. The defendant has the right to be present at the hearing to offer a defense, but if the court again finds that the defendant poses a significant danger to himself or to others, the court will grant the FERPO.
Can ERPOs and FERPOs be Appealed or Dismissed?
To lift a FERPO, either the petitioner or defendant must file a motion asserting that the FERPO is no longer necessary. Once all parties have been served, the court will designate a hearing date. The party who filed the motion to lift the FERPO has the burden of proof. They must show that the defendant no longer poses a danger to self or others and that the possession or use of a firearm is not a risk. The judge will issue a ruling based on all relevant factors. Courts will sometimes find that a ruling granting an ERPO should be reversed, either because the ERPO was issued on false or misleading information, or due to a change in circumstances.
How a Good Attorney Can Help
If you need to impose an ERPO against someone, or if you are a named defendant in an ERPO petition, you are treading in complicated legal waters. Seek skillful legal help from a qualified attorney. Contact attorney the Lento Law Firm today at (888) 535-3686. He has extensive experience in dealing with ERPOs and can guide you through the complexities involved.