Extreme Risk Protective Orders in New Jersey
NJ Firearms Lawyers Serving Hackensack, Toms River, Paterson and across NJ
At The Tormey Law Firm, our highly adept gun attorneys are thoroughly versed in New Jersey gun laws and we have the skill and experience to represent you against these allegations. Our team includes a former prosecutor who previously served in the weapons forfeiture unit in Morris County, as well as a lawyer who previously handled gun permit appeals on behalf of several police departments in Monmouth and Ocean County. In addition, our founder has been named among the top 10 criminal defense attorneys in New Jersey by the American Jurist Institute and has been featured as a legal resource for many prominent publications and news outlets. If your guns were taken away amidst extreme risk protective order proceedings in Hackensack, Newark, Toms River, Freehold, Paterson, Morristown, or another place in New Jersey, we are the team you want on your side. To discuss your specific circumstances with a lawyer who can provide personalized guidance and answers to your questions, contact us (201)-614-2474 today. We provide consultations at no cost to you and a member of our legal team is always available to provide knowledgeable legal counsel.
Extreme Risk Protective Order Process in New Jersey
In an extreme risk protective order case, the issuing of the order is a two step process. The first step involves the issuance of a temporary extreme risk protective order. The second step concerns a hearing, where the court will determine whether the accused individual is in fact a risk and if so, enter a final extreme risk protective order. A Temporary Extreme Protective Order is just as it sounds, temporary. Similar to a restraining order that begins with the issuance of a temporary order and then proceeds to a final hearing, the extreme risk protective order begins with the temporary order, after which a hearing must be held where the court considers the case and determines whether a final order should be issued.
Search Warrants in Extreme Risk Protective Order Cases in NJ
In addition to temporarily prohibiting the possession or ownership of firearms, ammunition, and permits, the police may also seize your property. Upon the filing of a temporary protective order, the court shall also order that the respondent surrender his or her weapons and permits. If the person does not comply, the court is empowered to issue a search warrant. Nevertheless, to obtain a warrant, the State must establish probable cause that:
(1) the individual owns or possesses firearms and/or ammunition,
(2) the person poses an immediate and present danger of bodily injury to self or others by owning or possessing firearms or ammunition, and
(3) such firearms or ammunition are presently at a specifically described location.
In cases where law enforcement and prosecutors have only good cause—not probable cause—that the subject poses an immediate and present danger by having access to a firearm, the petitioner may still seek a protective order, but they cannot obtain a warrant. Courts must recognize and honor individuals’ right to privacy, as well as their constitutionally-protected right against unreasonable search and seizures.
If a warrant is issued, it shall authorize the police to seize any and all firearms and ammunition within the possession, custody, or control of the respondent. If a person other than the respondent claims title to any firearm or ammunition, law enforcement shall confiscate the property and direct the person claiming ownership to request a return of the weapons to the law enforcement agency. If the agency determines that the person claiming title is the lawful owner, the firearm or ammunition will be returned.
Final Hearings on Extreme Risk Protection Orders
If a temporary protective order is granted, a final hearing will be scheduled and the case will be heard in the Superior Court of the county where the respondent resides, or, if the respondent lives out-of-state, in the county where the petitioner lives. The respondent shall have the right to be present at the hearing, testify, present witnesses, submit documents or information, and cross-examine witnesses who appear.
After hearing all the evidence and weighing the listed factors, if the court finds, by a preponderance of evidence, that the respondent poses a significant danger of bodily injury to self or others by owning, possessing, purchasing, or receiving a firearm, the court shall issue a final protective order. The order itself will prohibit the respondent from possessing a firearm as well as forbid the person from securing or holding a firearms purchaser identification card, permit to purchase a handgun, and permit to carry a firearm. The order shall also command the respondent to surrender to law enforcement any firearms, ammunition, and firearm related permits.
Can I Appeal an Extreme Risk Protective Order?
Either side is entitled to file an appeal. If the petitioner is initially denied a temporary order by a Municipal Judge, the petitioner, whether a household or family member, or a law enforcement officer, can request an immediate review by an emergent Superior Court Judge. The Superior Court Judge will be contacted telephonically and shall review the matter as soon as possible. If the order is denied by the Superior Court, then the petitioner must file an appeal to the Appellate Division within 45-days of the decision. Likewise, if the final order is granted by the Superior Court, then the respondent must submit an appeal to the Appellate Division within 45-days.
Can an Extreme Risk Protective Order be Removed?
A final protective order will forever bar an individual from using, owning, or purchasing a firearm unless the order is terminated. To terminate the protective order, the person seeking the termination must first file a motion with the court and serve a copy upon the police and prosecutor’s office. The motion can be filed at any time after the final protective order is issued.
Once all the interested parties are served, the court will schedule a hearing to decide the merits of the application. At the hearing, the court will consider the same factors it considered at the previous hearing as well as any other relevant evidence, including, whether the individual has received any appropriate treatment or counseling. Further, the person requesting the termination must demonstrate to the court, by a preponderance of the evidence, that he or she no longer poses a significant danger to themselves or to others, and is safe to own and control a firearm. If the court finds that the individual is safe, the court will terminate the protective order.
What if a Person Violates an Extreme Risk Protective Order in New Jersey?
Lastly, if a person knowingly violates any provision of the protective order, that person is guilty of contempt. The protective order is not a criminal matter, however, if you violate the order are a found guilty, then you will have a criminal record. A contempt offense in relation to violating a risk protective order is a crime of the fourth degree. As such, an individual can be sentenced to prison for up to 18-months or may be sentenced to probation for one to five years. The person may also be required to pay a fine of $10.000. On top of that, the individual will be mandated to pay a series of mandatory fines which include, $50.00 Victims of Crime Compensation Board fine, $75.00 Safe Neighborhoods Service Fund fine, and a $30.00 Law Enforcement Officers Training and Equipment Fund fine. And finally, as referenced above, you will have a criminal record.
How do Contempt Charges Happen in ERPO Cases?
A contempt proceeding can emerge in several different ways. For instance, if a person is driving and has a gun inside their vehicle. The individual is stopped and the car is subsequently searched. If the police find the firearm, they will likely run a background search and the protective order will appear. The order will tell the officers that the individual is prohibited from possessing a weapon. Consequently, the person will be arrested and charged with contempt. Similarly, a person may be traveling through an airport and carrying a firearm in their luggage. While going through security, the bag is placed in the x-ray machine and the officers there observe the weapon. Thereafter, the person is detained and it is discovered that an active protective order is in place. As a result, the person will be prosecuted for contempt. Another example is an individual travels to another state to purchase a firearm from a licensed dealer. Before making the sale, the dealer conducts a background check and the order surfaces. In turn, the dealer contacts the police, and the individual will likely face criminal charges.
Following the arrest, the individual will be given a copy of the complaint, which will outline the charges. Also, he or she will be provided a notice to appear in court. At the first court appearance, the Judge will announce the charges, the potential consequences, and will advise the defendant of their rights. Then, a new court date will be given. In the interim, the prosecutor’s office is obligated to disclose its discovery, which will consist of any police reports, videos, pictures, and any other evidence that the State may use to obtain a conviction. Moreover, the State is also required to turn over any evidence that may show that the person is innocent. After the discovery is exchanged, the prosecutor may present a plea offer. Generally, for contempt cases, the offer is probation and sometimes Pre-Trial Intervention.
Unfortunately, most contempt matters are easy cases for the State to prove. If the person is found in possession of a gun or caught trying to purchase a firearm, it is very difficult to show that he or she did not knowingly violate the order. As such, most cases are resolved by way of a plea agreement and the defendant is placed on probation. However, there are occasions where the defendant truly did not know that a gun was in their car or inside their bag and most importantly, the defense can present credible evidence to support their contention. Bearing in mind the various scenarios and intricacies of these cases, it it highly encouraged that you have your unique situation, the facts and evidence in your case, examined by a seasoned guns and weapons defense lawyer.
Facing an Extreme Risk Protective Order in NJ? A Morristown NJ Gun Lawyer can Help
If you have had your firearms seized in connection with an extreme risk protective order in New Jersey, contact the attorneys at The Tormey Law Firm for immediate advisement on your case. Our lawyers understand the nuances of these cases and we will put all of our knowledge and resources to work for you. Call (201)-614-2474 now for a free consultation.
Resources:
- Guidelines for Extreme Risk Protective Orders, NJ Courts
- Attorney General Law Enforcement Directive Pursuant to Extreme Risk Protective Order Act of 2018