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If you have been served with an Extreme Risk Protective Order (ERPO) in New Jersey, your firearms, ammunition, and permits can be seized immediately, often before you have a chance to respond. Under New Jersey’s red flag law, the court can issue a temporary order without notifying you, and a final order can remain in effect indefinitely. However, you retain the right to challenge the order at a hearing, present evidence, and file a petition to terminate the order.
New Jersey red flag lawyer Adam M. Lustberg has handled ERPO proceedings, firearms offenses, and weapons cases throughout Bergen County and New Jersey for more than 14 years. Public reporting has documented hundreds of gun seizures since New Jersey’s red flag law took effect in 2019, with many resulting in final orders. Lustberg Law Offices, LLC represents respondents in these proceedings and gun crime cases across the state.
This guide explains how the ERPO process works, what evidence the court considers, how your rights are affected, and what steps you can take to challenge or terminate an order. Call Lustberg Law Offices, LLC at (201) 880-5311 for a free consultation with an experienced gun crime defense attorney.
New Jersey’s red flag law is formally called the Extreme Risk Protective Order Act of 2018. Codified in N.J.S.A. 2C:58-20 to 32, it took effect on September 1, 2019. The law allows certain individuals to petition a court to temporarily remove firearms from a person who may pose a danger to themselves or others.
An ERPO is a civil court order, not a criminal charge. It does not result in a criminal conviction because it is a civil order. However, the consequences are significant. A person subject to an ERPO loses the right to possess, purchase, or receive any firearms or ammunition, and must surrender all weapons and permits to law enforcement.
The ERPO Act was modeled after the procedures used for domestic violence restraining orders under the Prevention of Domestic Violence Act (PDVA). However, an ERPO is narrower in scope. It addresses firearm access only, while a restraining order under the PDVA can include broader protections such as exclusive possession of a shared residence and custody arrangements.
Key Takeaway: An ERPO is a civil court order under N.J.S.A. 2C:58-20 to -32 that temporarily prohibits you from possessing or purchasing firearms. It is not a criminal charge, but it can result in the immediate seizure of all firearms, ammunition, and permits.
Under New Jersey law, the following individuals can petition the court for an Extreme Risk Protective Order:
Third parties who do not fall into these categories can request that a law enforcement agency file a petition on their behalf. Licensed mental health professionals may also contact law enforcement to report a safety concern under their professional duty to warn, which can lead to an officer-initiated petition.
There is no filing fee for an ERPO petition under N.J.S.A. 2C:58-23(c). The petition is filed in the Superior Court of the county where the respondent lives.
If you believe an ERPO petition has been filed against you, contact Adam M. Lustberg at (201) 880-5311 to discuss your options.
We have years of experience in courts through NJ and NY and a proven track record of success in criminal cases.
The process begins when a petitioner files a sworn affidavit with the court. The affidavit must describe specific facts supporting the claim that the respondent poses a danger, and identify the number, type, and location of any firearms believed to be in the respondent’s possession.
After filing, the court holds an expedited hearing, typically on the same day. This first hearing is ex parte, meaning only the petitioner is present. The respondent does not receive notice and has no opportunity to attend or present evidence. If the judge finds “good cause” to believe the respondent poses an immediate danger, the court issues a temporary ERPO.
Once a temporary ERPO is issued, law enforcement may serve the order and seize all firearms, ammunition, and permits from the respondent. The court may also issue a search warrant authorizing officers to search for firearms in the respondent’s possession, custody, or control.
A final hearing must be scheduled within 10 days of the petition filing, though it can take longer if the respondent needs to be served. At the final hearing, both the petitioner and respondent can be represented by attorneys. The respondent has the right to testify, present witnesses, cross-examine the petitioner’s witnesses, and submit documents.
The standard of proof at the final hearing is preponderance of the evidence. This means the petitioner must show that it is “more likely than not,” or at least 51%, that the respondent poses a significant danger of bodily injury to themselves or others by possessing a firearm. This is a lower standard than the “beyond a reasonable doubt” threshold used in criminal cases.
If the judge grants the final order, the ERPO remains in effect indefinitely until the court terminates it. If the judge denies the final order, the respondent’s firearms may be returned.
Key Takeaway: A temporary ERPO can be issued the same day the petition is filed, without the respondent’s knowledge. A final hearing occurs within 10 days, where the burden of proof is a preponderance of the evidence, a lower standard than in criminal cases.
Building a strong defense before the final hearing can make a critical difference. Call Lustberg Law Offices, LLC at (201) 880-5311 to speak with Adam M. Lustberg about your case.
Adam M. Lustberg is the founding attorney of Lustberg Law Offices, LLC, with more than 14 years of experience in criminal defense. A graduate of Seton Hall University School of Law, he began his career at the Essex County Public Defender’s Office and later represented juveniles in the Juvenile Justice Clinic. He is admitted to practice in both New Jersey and New York and handles cases in Municipal and Superior Courts throughout the state, including ERPO proceedings, weapons offenses, drug cases, violent crimes, and homicide matters.
Adam M. Lustberg has argued more than 30 detention hearings under New Jersey’s criminal justice reform system. He holds a 10/10 Avvo rating and has been recognized by SuperLawyers as a Rising Star and by the National Trial Lawyers as a Top 100 attorney. He is known for meticulous preparation and direct, practical advocacy in every case he handles.
Before issuing an ERPO, the court must evaluate multiple factors outlined in N.J.S.A. 2C:58-23(f). These include whether the respondent:
Court guidelines reference additional factors that judges may consider in ERPO proceedings. These include whether the respondent has used, displayed, or brandished a firearm, has previously been subject to or violated an ERPO, has been involuntarily committed to a psychiatric facility, has received a mental health diagnosis, or has complied with or failed to comply with mental health treatment.
The court weighs all available evidence, including testimony and documentation provided by both sides at the final hearing. No single factor is automatically decisive. The judge considers the totality of the circumstances.
Key Takeaway: New Jersey courts evaluate at least 15 statutory factors and 7 additional judicial guidelines when deciding whether to issue an ERPO. An attorney can help identify weaknesses in the petitioner’s evidence and present counter-evidence at the hearing.
A temporary or final ERPO prohibits you from possessing, controlling, owning, purchasing, or receiving any firearms or ammunition. You also cannot hold a Firearms Purchaser Identification Card (FPIC), a permit to purchase a handgun under N.J.S.A 2C:58-3, or a permit to carry a handgun under N.J.S.A 2C:58-4.
Once the order is issued, you must surrender all firearms, ammunition, and permits to law enforcement. A receipt confirming surrender of firearms must be filed with the county prosecutor within 48 hours of service of the order.
An ERPO can also affect your employment. If your job requires you to carry or possess a firearm, such as law enforcement or armed security, an active ERPO may prevent you from performing your duties. Special filing procedures apply when an ERPO petition is filed against a law enforcement officer. The petition must be filed where the officer is employed, which triggers an internal affairs investigation reviewed by the county prosecutor.
The Administrative Office of the Courts maintains a confidential electronic registry of individuals subject to final ERPOs or charged with violating them. These records are accessible only to law enforcement for investigations, background checks, and other lawful purposes. Once an ERPO is terminated, the respondent’s information is removed from the registry.
Key Takeaway: An ERPO strips your right to possess firearms, ammunition, and all related permits. It can also affect employment in positions requiring firearm possession. Records are kept in a confidential registry and removed upon termination of the order.
To understand how an ERPO may affect your specific situation, contact Adam M. Lustberg at Lustberg Law Offices, LLC for a free consultation.
A tenacious litigator who won’t back down. Prepared to challenge the evidence against you and will fight to protect your rights.
A temporary ERPO can be issued immediately without your participation, while a final ERPO can only be imposed after a full hearing where both sides present evidence. The chart below explains how the two orders compare.
| Feature | Temporary ERPO | Final ERPO |
|---|---|---|
| How Issued | Ex parte (respondent not present) | Full hearing (both sides present) |
| Duration | Up to 10 days | Indefinite (until terminated by court) |
| Burden of Proof | "Good cause" | Preponderance of the evidence (51%) |
| Respondent Can Attend | No | Yes |
| Respondent Can Present Evidence | No | Yes |
| Can Be Terminated | Expires automatically | Must petition court |
| Search Warrant | May be issued | Firearms already surrendered |
Purposely or knowingly disobeying a temporary or final ERPO constitutes contempt under N.J.S.A. 2C:29-9(e). This is a fourth-degree crime. Penalties include up to 18 months in state prison and fines up to $10,000. Failing to file the firearm-surrender receipt with the county prosecutor within 48 hours after service also constitutes contempt under the statute.
The ERPO petition also requires a sworn affidavit or testimony under oath. Filing a petition based on false statements can result in criminal charges. Making a material false statement under oath is perjury, a third-degree crime carrying 3 to 5 years in prison and fines up to $15,000. False swearing and unsworn falsification are fourth-degree crimes, each carrying up to 18 months in prison.
If you believe an ERPO petition was filed against you in bad faith, Adam M. Lustberg can review the petition, document procedural problems, and challenge weak claims at the hearing. Call (201) 880-5311.
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Challenging or terminating an Extreme Risk Protective Order (ERPO) in New Jersey requires understanding the procedures and the evidence the court relies on. Although temporary ERPOs are issued without your participation, you have the opportunity to contest the allegations at the final hearing and later petition to end a final order.
Because a temporary ERPO is issued ex parte, there is a limited opportunity to prevent it. However, the final hearing within 10 days is your opportunity to present your defense. At the final hearing before the Bergen County Superior Court or the Superior Court in your county of residence, you can testify on your own behalf, call witnesses, submit documents, and cross-examine the petitioner’s witnesses.
An attorney can challenge the evidence in several ways. These may include questioning the reliability of the petitioner’s claims, presenting records that contradict the allegations, introducing testimony from character witnesses or mental health professionals, and identifying procedural deficiencies in the petition or affidavit.
At any time after a final ERPO is issued, you may petition the court to terminate the order. The burden of proof shifts to you as the respondent. You must demonstrate by a preponderance of the evidence that you no longer pose a significant danger of causing bodily injury by possessing a firearm.
The court will consider the same factors it evaluated when granting the original order, along with any additional relevant evidence. This may include completion of mental health treatment, counseling records, employment history, community ties, and other evidence of changed circumstances.
Key Takeaway: You have the right to challenge an ERPO at the final hearing and to petition for termination at any time. The burden of proof at both stages is preponderance of the evidence. An attorney can help build the strongest possible case for dismissal or termination.
Adam M. Lustberg of Lustberg Law Offices, LLC has represented clients in ERPO proceedings throughout New Jersey. Contact the Hackensack office at (201) 880-5311 to discuss your defense.
Many people confuse ERPOs with domestic violence restraining orders, but they serve different purposes and provide different protections. Understanding the distinction is important for determining which legal process applies to your situation.
An ERPO under the Extreme Risk Protective Order Act addresses firearm access only. It prohibits the respondent from possessing or purchasing firearms and ammunition but does not provide broader protections. A domestic violence restraining order under the Prevention of Domestic Violence Act (PDVA) can include exclusive possession of a shared home, temporary custody arrangements, and no-contact provisions in addition to firearm restrictions.
ERPOs are typically handled in the Superior Court and are assigned according to court procedures, while domestic violence restraining orders are handled in the Family Division of the Superior Court. An ERPO can be filed by law enforcement officers or any qualifying family or household member, even in the absence of domestic violence. A DV restraining order requires that the petitioner be a victim of domestic violence as defined under the PDVA.
If you are subject to both an ERPO and a domestic violence restraining order, each carries its own requirements and consequences. An attorney familiar with both processes can help you understand how they interact.
Key Takeaway: An ERPO restricts firearm access only, while a DV restraining order provides broader protections, including residence and custody. ERPOs are heard in the criminal division of Superior Court; DV restraining orders are handled in Family Division.
Lustberg Law Offices, LLC represents respondents in ERPO proceedings and firearms cases from our Hackensack office and throughout New Jersey. Adam M. Lustberg handles cases in Bergen County Superior Court at 10 Main Street in Hackensack, Passaic County Superior Court, Hudson County Superior Court, and Superior Courts across the state.
Our service area includes Bergen County communities such as Paramus, Fort Lee, Teaneck, Englewood, Ridgewood, Fair Lawn, Garfield, Bergenfield, and Lodi. We also represent clients in Hudson County (Jersey City, Hoboken, North Bergen, Union City, Bayonne), Passaic County (Paterson, Clifton, Wayne, Passaic, Totowa), and Essex County (Newark, Montclair, Bloomfield, Nutley).
Being served with an ERPO can feel overwhelming. Your firearms have been seized, your rights are restricted, and you may have only days before the final hearing. The decisions you make now, and the evidence you present, can determine whether the order becomes permanent.
Adam M. Lustberg has handled ERPO proceedings, firearms offenses, and weapons cases for more than 14 years. At Lustberg Law Offices, LLC, we review the petition and evidence against you, identify procedural and factual weaknesses, prepare witnesses and documentation for the hearing, and advocate for dismissal or termination of the order. Our red flag law attorneys understand how Bergen County courts handle these matters and what judges look for at ERPO hearings.
Call Lustberg Law Offices, LLC at (201) 880-5311 for a free consultation. Our Hackensack office serves clients throughout Bergen, Hudson, and Passaic Counties, as well as New Jersey. We are available 24/7 and can begin working on your defense immediately.
New Jersey’s red flag law, formally the Extreme Risk Protective Order Act (N.J.S.A. 2C:58-20 to -32), allows certain individuals to petition a court to temporarily remove firearms from someone who poses a danger to themselves or others. It took effect on September 1, 2019.
Family members, household members, domestic partners, co-parents, current or former dating partners, and law enforcement officers can file directly. Others may request that law enforcement file on their behalf.
A temporary ERPO lasts up to 10 days, at which point a final hearing is held. A final ERPO remains in effect indefinitely until the court terminates it upon petition.
If the court denies the final ERPO at the hearing, your firearms may be returned. If a final order is issued, you must petition the court for termination and prove you no longer pose a danger.
At the final hearing, both the petitioner and respondent can testify, present witnesses, submit documents, and cross-examine the other side. A Superior Court judge decides whether to issue the final order based on the evidence presented.
The petitioner must prove by a preponderance of the evidence that the respondent poses a significant danger. This means “more likely than not,” or at least 51%, which is lower than the criminal standard of “beyond a reasonable doubt.”
A temporary ERPO is issued ex parte, so you cannot prevent it. However, the final hearing within 10 days is your opportunity to challenge the evidence and present your defense.
The petitioner must provide a sworn affidavit describing specific behaviors or threats. The court evaluates at least 15 statutory factors and 7 additional judicial guidelines, including history of violence, substance abuse, mental health history, and prior restraining orders.
No. An ERPO is a civil order, not a criminal charge. However, records are maintained in a confidential registry accessible to law enforcement for background checks and investigations.
Yes, but special procedures apply. The petition must be filed where the officer works, which triggers an internal affairs investigation reviewed by the county prosecutor before submission to the court.
Violating a temporary or final ERPO is contempt under N.J.S.A. 2C:29-9(e), a fourth-degree crime. Penalties include up to 18 months in state prison and fines up to $10,000.
No. Under N.J.S.A. 2C:58-23(c), there is no filing fee for an ERPO petition.
An ERPO addresses firearm access only and is heard in the criminal division of the Superior Court. A domestic violence restraining order provides broader protections, including residence and custody, and is handled in the Family Division.
ERPO records are confidential and maintained in a registry accessible only to law enforcement. However, if your job requires firearm possession, an ERPO may directly affect your employment.
Comply with the order immediately by surrendering all firearms and permits to law enforcement. File the surrender receipt with the county prosecutor within 48 hours. Contact an attorney to prepare for the final hearing.
A mental health professional cannot file an ERPO petition directly. However, they may contact law enforcement to report a safety concern under their professional duty to warn, which can lead to an officer-initiated petition.
You are not required to have an attorney, but legal representation can significantly affect the outcome. An attorney can challenge the evidence, prepare witnesses, and present your defense effectively. Because ERPO proceedings are civil matters, respondents are generally not entitled to representation by the Public Defender.