What is New Jersey’s “Red Flag” Law?

New Jersey enacted the Extreme Risk Protective Order Act in September 2019. This “red flag” law allows family or household members or law enforcement officials to petition the court to remove firearms from another person or stop them from buying guns or ammunition. To successfully obtain this type of court order, one must prove that the person who is the subject of the order poses an immediate and present danger of bodily injury to self or others.

A petition is prepared and filed in the Superior Court of New Jersey. If the subject is a law enforcement officer, the petition must be filed in the law enforcement agency in which the officer is employed.

The petition is a form created by the Courts. The form contains questions based on fifteen (15) factors enumerated in the Act. These factors include whether the person:
(1) has any history of threats or acts of violence directed towards self or others,
(2) has a history of drug or alcohol abuse and recovery from the abuse,
(3) has complied or has failed to comply with any mental health treatment, and/or
(4) has received a diagnosis of a mental health disorder. Prior to the petition being filed, the petitioner will be asked to certify that the statements in the petition are true and that, if any of the statements are willfully false, he or she is subject to punishment.

After a petition for extreme risk protective order (ERPO) is filed, the judge is required to hold an expedited hearing, usually on the same day the petition is filed. The expedited hearing is an ex parte hearing, which means that the person whose gun rights are at issue does not receive notice of the hearing. That person has no opportunity to appear at the hearing or present any evidence on their behalf.

The person who filed the petition for an ERPO is required to present evidence at that hearing, which may include documentation to support the petition. Based on that evidence, the court will decide whether there is “good cause” to believe that person represents a significant danger of bodily harm, either to himself or others, if allowed to possess or purchase firearms. If the court enters the temporary order and the petition “indicates” that the respondent owns or possesses any firearms, then the Act mandates that the court shall issue a search warrant allowing law enforcement officials to confiscate guns from that person’s household.

Once a judge issues a temporary ERPO, the individual subject to the order has the right to a full hearing within ten (10) days. At this hearing, the judge will decide whether the temporary order should become permanent. If the judge issues a permanent order, it can last indefinitely. However, the person who is subject to the order can petition the court to end the order. To remove the order, that person would have to prove that he is no longer a risk of using firearms to cause himself or others any harm.

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