You can ask the court to remove firearms from someone deemed an immediate threat. This is called an "extreme risk protection order" (EPRO) or firearm removal order.
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How to File a Petition
While firearm removals do not involve criminal charges, the criminal division of Superior Court handles those requests. Firearm removals and procedures are defined in the Extreme Risk Protective Order Act of 2018.
The procedure is modeled after domestic violence restraining orders, which include firearm removal. Consider a full restraining order if you are a victim of domestic violence.
A firearm removal request begins with an ERPO petition. The petition needs to state why the person is a threat to others or at risk for self-harm. It includes questions related to 15 risk factors. The petition needs to tell the court what guns are owned and where they are located. The person filing becomes the “petitioner” and the alleged threat is the “respondent.”
File the petition in the county where the respondent lives. If you file outside of the county where the respondent resides, it will be sent to the correct court. Submit the petition to:
- The criminal division of Superior Court Mon-Fri, 8:30 am – 5:30 pm.
- Any state, county, or municipal law enforcement agency at any time.
Under the ERPO Act, law enforcement agents can provide information to complete the petition. Actions they can take include:
- Providing information on what risk factors the court considers.
- Joining the petition.
- Referring the petition to additional law enforcement agencies.
- Filing their own petition.
There are special procedures for petitions against law enforcement officers. The petition must be filed where the individual works. This triggers an internal affairs (IA) investigation. The county prosecutor must review the report and decide whether it should be submitted to the court.
There are no filing fees for a firearm removal petition, pursuant to N.J.S.A. 2C:58-23(c).
Who Can File a Petition
Family members can file firearm removal petitions directly with the court. Under N.J.S.A 2C:58-23(a) family members include:
- A spouse, domestic partner, or partner in a civil union couple.
- A former spouse, domestic partner, or partner in a civil union couple.
- A present or previous household member.
- Any co-parent or guardian of a child in common.
- Anyone who is expecting a child with the alleged individual.
- A current or former dating partner.
Law enforcement agents are also able to file a petition directly with the court.
Anyone not listed above needs to go a law enforcement agency and ask them to file the petition. The agency decides whether to honor the request and file the petition. Law enforcement and prosecutors need to follow specific guidelines for these requests.
Preparing for Court
When you file with the Superior Court, court staff will interview you. Your responses are filed in the protective restraining order system (PROS).
The first hearing will be scheduled as soon as possible. During regular court hours, a Superior Court judge will hear the petition. During off hours, a municipal court judge will hear the petition. to provide “good cause” for removing firearms. If successful, the court will issue a temporary firearm removal order.
If a municipal judge denies the petition, you can request an immediate appeal hearing with an on-call Superior Court judge. If a Superior Court judge denies the request, you can appeal with the Appellate Division of Superior Court.
The final hearing is scheduled within 10 days of the petition. It can take longer if the respondent needs to be served with the petition. During the final hearing both the petitioner and respondent can make their case.
While attorneys are not required, both parties have a right to representation. However, these cases do not qualify for a public defender or other court assistance. Either party seeking representation needs to hire a private attorney.
Defending Yourself in Final Hearings
Respondents have a right to defend themselves in court. You will receive a copy of the petition and have time to prepare your defense for the final hearing. You can request an expedited final hearing. This shortens the time the temporary order is in effect.
During the final hearing, you can:
- Testify in your defense.
- Present witnesses for your defense.
- Submit any relevant documents.
- Cross-examine any witnesses for the petitioner.
- Present any additional information relevant to your case.
Final Firearm Removal Order
The final order is issued if the court finds a “preponderance of evidence” confirming the extreme risk. Upon the order, the respondent must:
- Surrender all firearms and ammunition to law enforcement.
- Surrender any license to purchase, own or carry firearms.
The respondent cannot own, receive, purchase, or use firearms under the final order. The court can issue a search warrant if there is probable cause that the respondent still possesses firearms. The search warrant can only be issued for the property listed in the petition.
Requesting a Termination of a Final Order
The final order stays in effect forever or until another court order. The petitioner or respondent can request termination of the final order. The petition must include why the respondent is no longer a risk. Additional documentation might be required.