What Exactly is An Extreme Risk Protective Order In New Jersey?
An Extreme Risk Protective Order [“ERPO”] is an order brought by people who believe another person may be at risk of using a firearm to commit acts of violence.
The Relation and Comparison to Domestic Violence Orders
The procedures leading to an ERPO are similar to those required of a person to obtain a final restraining order under the Prevention of Domestic Violence Act. It is a civil proceeding, meaning that the state must prove the existence of the risk by a preponderance of the evidence rather than beyond a reasonable doubt. A petition for a temporary ERPO can be brought by a family or household member in the criminal courts. An ERPO may also be brought by a law enforcement officer who would also file a petition with the Superior Court. Domestic violence restraining orders can only be brought by household members or people in the relationship. The ERPO application then proceeds to a hearing before a judge who decides based on the evidence whether there is such a risk.
Because the relief provided under an ERPO is limited to prohibiting the respondent from having firearms and or ammunition, such an order does not offer the range of relief provided by restraining orders issued pursuant to the “Prevention of Domestic Violence Act.” For example, a plaintiff or person protected under the domestic violence statute can apply for a Temporary Domestic Violence Restraining Order [“TRO”] that not only authorizes the seizure of the defendant’s firearms but also prohibits the defendant from returning to the scene of the domestic violence. A Final Domestic Violence Restraining Order [“FRO”] provides additional types of relief, such as exclusive possession of the residence or household or prohibiting the defendant from entering the residence, property, school or place of employment of the victim.
Based on the circumstances, it may be appropriate for a person seeking an ERPO to consider instead applying for a TRO and FRO under the Prevention of Domestic Violence Act. The Family Division of the Superior Court at any county courthouse can be contacted for information on domestic violence restraining orders.
Who Can Petition for Extreme Risk Protective Order Orders to Be Put into Place?
A household member or a law enforcement officer can petition for an ERPO. Other persons may also apply, but they must do so through a local law enforcement agency for a law enforcement officer to make the petition. However, the filing of these petitions is at the discretion of law enforcement as the petitioner. There is no filing fee required for an ERPO petition.
What If the Respondent Is a law Enforcement Officer?
A petition for a temporary ERPO against a law enforcement officer shall be filed in the law enforcement agency in which the officer is employed. The non-respondent law enforcement officer or employee receiving the petition shall advise the petitioner of the procedure for completing and signing a petition. On receipt of the petition, the law enforcement officer’s employer shall immediately initiate an internal affairs investigation. The disposition of the internal affairs investigation shall immediately be served on the county prosecutor who determines whether to refer the matter to the courts.
If a family or household member comes to the Superior Court to file a petition against a law enforcement officer, court staff cannot file that petition, but the staff will provide the person with the petition form and an information sheet on the statutory process for filing a petition against a law enforcement officer. That information sheet should be available on the Judiciary’s website.
What Type of Evidence Has to Be Provided to Obtain an Extreme Risk Protective Order?
Evidence is usually testimony. The court must decide whether the respondent poses a significant danger of bodily injury to themselves for others by owning, possessing, purchasing or receiving the firearm. If the judge is convinced that an ERPO is needed, he or she can enter an order requiring that person to give up weapons and to surrender handgun purchase permits and firearms purchaser identification cards. A final ERPO prohibits the respondent from owning, purchasing, possessing or receiving firearms and ammunition or from obtaining a firearms purchaser identification card or permit to purchase a handgun. Also, any concealed carry permits would be revoked. Finally, the respondent’s name is placed in a registry, so if they ever attempt to obtain or possess weapons, law enforcement will be able to detect those attempts, assuming those attempts are done through authorized channels.
How Long Does an Extreme Risk Protective Order Actually Last?
An ERPO lasts until a court determines that there is no further need for one. The person against whom the order has been filed can apply for termination of that order by giving notice to the law enforcement agency, county prosecutor, and the person who petitioned for the ERPO in the first place. To get the ERPO vacated, the person prohibited from possessing guns and firearms must prove by preponderance of the evidence that he or she no longer poses a significant danger of causing bodily injury to themselves or to anybody else by having firearms. This law has only been in effect since September 1, 2019.
What Happens If Someone Does Not Comply with an Extreme Risk Protective Order?
A person who does not abide by the ERPO will be arrested for contempt of a court order, and there would be a warrant to seize all their weapons. Due to its recent creation, there is little or no case law on this particular type of an order, but as the law develops, it will likely be heavily based on principles developed under the Prevention of Domestic Violence Act.
How Can Family Members Be Protected in an Emergency?
In New Jersey, we basically have two types of proceedings involving these kinds of emergency threats. The Prevention of Domestic Violence Act was put into place in 1991. The most recent one is the Extreme Risk Protective Order enacted this past September. Applicants for Temporary Restraining Orders [TROs] can apply “ex-parte”–that is, without notice to the respondent–to obtain legal protection from an imminent threat. The respondent is afforded due process by given an opportunity to be heard at a final hearing, where the court will either dismiss the TRO or enter a Final Restraining Order [“FRO”] or ERPO.
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