New Jersey Criminal Defense Attorney Blog
Most of our firearms clients are concerned with appealing a decision of a local police department denying the issuance of a Firearms Purchaser Identification Card or handgun purchase permit. Gun owners need to be aware of certain procedures in New Jersey that can be used to confiscate weapons and permits already in their possession.
The Extreme Risk Protective Order Act of 2018 (the “ERPO”) allows for the confiscation of firearms and permits in certain circumstances. This law is modeled on the procedure used to confiscate firearms in domestic violence situations. An ERPO petition can be filed by a current or former spouse, domestic partner or civil union partner; a current or former household member; a co-parent or guardian of a child-in-common; anyone expecting a child with the gun owner; a current or former dating partner; or a member of law enforcement. The petition needs to state why the gun owner is a threat to others or themself. It includes questions concerning 15 risk factors. The petition must also identify the guns at issue, and state where they are located. The petition is filed in the Superior Court of the gun owner’s county of residence.
After filing, the person who filed the petition will be interviewed by court staff. The first hearing should be scheduled promptly, and may be heard by either a Superior Court judge or a municipal court judge. The purpose of the first hearing is to determine whether there exists “good cause” for removing the firearms. If the judge determines that good cause exists, they will issue a temporary firearm removal order. If the judge conducting the hearing was a municipal court judge who denied the petition, the person who filed the petition can request an immediate appeal with an on-call Superior Court judge. If a Superior Court judge denies the request, the filer can then appeal to the Appellate Division of the Superior Court.
A final hearing should be scheduled within 10 days of the date the petition is filed. Both the filer and the gun owner can be represented by private counsel (ERPO petitions do not qualify for public defender representation). The gun owner should receive a copy of the petition, and should be granted time to prepare their defense. The gun owner can also request an expedited hearing. During the final hearing, the gun owner can testify in their own behalf, present witnesses, submit relevant documents, cross-examine witnesses, and present other relevant information.
If the court finds that extreme risk has been established by a preponderance of the evidence (the lowest burden of proof recognized by law), the gun owner will be ordered to surrender their firearms, ammunition and permits to law enforcement. The final order will provide that the gun owner cannot receive, purchase or use firearms. The court can issue a search warrant if there is probable cause to believe that the gun owner still has firearms. The final order is permanent, or until it is vacated by another court order. Either party can seek to have the final order vacated, but the application must state why the person who had their weapons and documentation confiscated no longer presents a risk, and may have to be supported by documentation establishing the absence of any risk.
New Jersey has some of the toughest gun laws in the country. Gun owners who have been granted the privilege of weapons ownership need to be aware of laws and procedures that could result in the loss of their weapons and permits. Once these things have been taken away, getting them back can be difficult.
James S. Friedman, Esq., is an attorney in New Brunswick, New Jersey. Mr. Friedman represents individuals who seek to appeal the denial of a gun permit application, as well as gun owners who face weapons confiscation because of a temporary or final restraining order, or ERPO order. If you have been denied a gun permit or face weapons confiscation, contact Mr. Friedman immediately.
