The Constitution of the United States gives individuals the right to bear arms under the Second Amendment. But, in matters involving known dangerous individuals, the court has ways of removing guns from their possession if they pose an imminent danger to themselves or to another person.
Given the recent attention on gun violence and widespread calls for further protection from dangerous individuals, many states have implemented what are called “red flag laws” empowering law enforcement agencies to more easily confiscate firearms from those who have been deemed “dangerous.” As of September 1, 2019, New Jersey effected red flag laws of its own.
If you have been the subject of an emergency protective order under New Jersey’s Extreme Risk Protective Order Act, the red flag law lawyers at Lustberg Law Offices can help you understand and defend your rights under the law. While the initial order of protection against you may be temporary, unless you can convince the court that it was not justified, the final order can linger indefinitely. We can help you make your case before the court and ensure that your rights to bear a firearm are not taken from you.
While the issue of gun ownership is a thorny one with two distinct sides and perspectives, the red flag laws have also been met with controversy on both sides of the coin.
Since they were originally enacted, many civil rights and gun advocacy groups alike have regarded these laws as a potential violation of due process rights, not allowing the subject of a protective order the ability to argue their case in court prior to gun confiscation. While these orders can protect innocent individuals in very dangerous circumstances, in some cases, subjects of these orders of protection find that the law has been used against them unjustly.
To defend yourself against these emergency protective orders, you must be able to offer extensive evidence and testimony to prove that you are not a danger and to convince the court that the emergency order was not justified. This is when it is critical to have the skilled legal representation of an experienced attorney to represent your interests and your rights to continue owning a firearm.
At Lustberg Law Offices, our skilled legal defense team of experienced red flag law attorneys can help determine the best approach to defend you against an ERPO by reviewing the evidence introduced to support the order and offering evidence to refute or counter it. Nobody should face this alone without skilled legal assistance. Let us help.
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Red flag laws provide a legal framework to confiscate firearms from perceived high-risk individuals, thereby theoretically protecting individuals from violent acts before they happen. These emergency orders of protection were developed to enable the court to more easily confiscate or prevent the use of a firearm if there was sufficient evidence that an individual was an imminent threat of harming themselves or others.
An emergency order of protection can be issued against an individual even if they own a firearm legally and have committed no weapons crime. A temporary order is issued until the case can be heard by the court, where a final order is determined.
At Lustberg Law Offices we understand how important it is to have a great criminal defense attorney when it comes to matters such as facing an ERPO.
To speak with an experienced defense attorney, call us today at (201) 880-5311.
We have years of experience in courts through NJ and NY and a proven track record of success in criminal cases.
Under the Extreme Risk Protective Order Act, New Jersey’s red flag law enables household members, family members, police officers or other parties to petition the court to remove firearms from an individual who they believe is a threat to themselves or others. This order can temporarily prevent someone from possessing or purchasing a firearm or ammunition if there is sufficient evidence that they may be a danger.
Under New Jersey’s red flag law, the power of the court to confiscate firearms has been greatly expanded. Law enforcement can now more easily obtain an order to temporarily remove an individual’s firearm or the right to own a firearm when:
While the purpose of this legislation is to protect potential victims, it can also be used unfairly against the subject of the order or without sufficient evidence of a dangerous threat.
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Similar to orders of protection under the Prevention of Domestic Violence Act, an extreme risk order of protection will be issued ex parte, or before the subject has an opportunity to be heard or to respond. The subject may not even know there is an order against them until the police force shows up at their door to confiscate their weapons.
Firearms may be immediately confiscated under an ERPO, requiring the subject to petition the court for its termination and present his or her own evidence. But the court takes these matters very seriously and can be reluctant to return firearms to an individual if they feel there is any validity to the dangers expressed in the petition.
Unfortunately, the subject of an extreme risk order of protection may find it difficult to effectively convey to the court that they are not a danger. In many cases, they often make things worse for themselves. It is essential for the subject of an ERPO to have a skilled lawyer in their corner to help convince the court that they are not a danger. If you have been the subject of an ERPO, let us help. The experienced criminal defense lawyers at Lustberg Law Offices can skillfully negotiate with the prosecution on your behalf and work to get your rights and firearms restored after the issuance of an ERPO.
To schedule a consultation, call us at (201) 880-5311.
In New Jersey, family members, household members, and police officers are qualified to seek an ERPO against an individual. Qualified individuals are defined by the same criteria that are used for restraining orders in domestic violence situations, including:
In addition to these individuals, law enforcement and some third-parties may have concerns about the safety of an individual. A licensed mental health provider may contact police officers to report a safety concern under their professional duty to warn. If the court believes that the individual does pose an imminent danger to themselves or others, they may issue an ERPO.
Before the court issues an ERPO, the petitioner must include a sworn affidavit outlining the evidence of the alleged extreme risk. The petitioner must also, if possible, note the nature and location of any firearms.
Based on the petition and relevant evidence, the court will determine whether a temporary order is necessary to ensure the safety of the petitioner, the public, or the individual themselves. They will consider many factors as set forth in N.J.S.A.2C:58-23(f) when making this decision, including:
Furthermore, the courts have added seven more factors that the judge must consider before issuing a temporary order under the Guidelines for Extreme Risk Protective Orders. These are:
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The Temporary Extreme Risk Protective Order prohibits the subject of the order from:
The temporary order will also trigger the immediate surrender of any firearms or ammunition in the subject’s control or possession, any Firearms Purchaser Identification Card, or permit to purchase or carry a handgun. Once a temporary order is issued, police officers may confiscate firearms and ammunition and prevent the subject from purchasing new ones.
The court will hold a hearing on a later date to hear the merits of the case in greater detail. At that point, the judge will issue a final order that may or may not restore the subject’s access to firearms.
At any point, after the temporary ERPO is granted, the subject can petition the court with evidence that they do not pose a threat. However, this can be a complicated matter.
Going before the court requires well–prepared evidence that will convince the judge that you are not dangerous and that the ERPO was not justified. However, pleading your case before the court on your own is never advisable, particularly in cases involving an ERPO. If you are facing an Extreme Risk Protective Order in New Jersey, you need the skilled help of an experienced New Jersey attorney who understands the laws and what the court will want to see.
Attorney Adam M. Lustberg and our team of skilled lawyers at Lustberg Law Offices have spent our careers defending the rights of our clients. We understand New Jersey red flag laws and advocate diligently for your rights and to have the order lifted and restored legal access to your firearms and ammunition.
To schedule a consultation, call us today at (201) 880-5311.
While we all can agree that dangerous people should not be in possession of firearms, red flag laws can lack clarity and petitions can often be brought against an individual with very ambiguous evidence. Although New Jersey red flag laws have been crafted to limit petitioners, the definitions of who can file a petition are still very broad.
Red flag laws have been modeled after domestic violence restraining orders. Although most petitioners of Extreme Risk Protective Orders do so for good reasons, there may be matters of false accusations that can have serious consequences.
Furthermore, red flag laws have been notoriously vague in their definition of “significant danger.” Innocent individuals may find that having an ERPO issued against them can have a serious impact on their reputation and future and may further implicate them in the future because of a perceived violent tendency.
A petition will be reviewed by the court on an ex parte basis, meaning only the petitioner is heard on the application and, if they find sufficient evidence, an ERPO will be issued. Because these protective orders are issued under emergent situations, there is no attempt to contact the subject or hold a hearing until after the temporary order is issued.
There is little an individual can do to prevent the court from issuing a Temporary Extreme Risk Protective Order. Because there is no way for the court to understand the subject’s side of the story, or to consider evidence that may refute the allegations, the lack of due process is regarded as one of the main problems with these orders.
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You may have been served notice of an Extreme Risk Protective Order without understanding why or even knowing it. But, once it has been issued, law enforcement has the right to seize your firearms, ammunition, and any licenses or permits you may have. While the court will schedule a hearing where you may present your own defense, the order of protection will become final if the court finds against you.
If you have found yourself the subject of a Temporary Extreme Risk Protective Order in New Jersey, it is critical to get ahead of the matter and help ensure your best success when defending yourself to the court. This requires the assistance of a red flag law attorney with a comprehensive understanding of the laws and a proven ability to protect your rights under the circumstances.
At Lustberg Law Offices, attorney Adam M. Lustberg and our experienced team of New Jersey attorneys understand New Jersey’s red flag law and what it takes to represent your rights to firearms ownership.