New Jersey’s “Red Flag” Laws in Domestic Violence Cases

Extreme Risk Protective Orders and Domestic Violence

In 2018, New Jersey adopted the Extreme Risk Protective Order Act, gun control legislation that allows family or household members, police and prosecutors, or other third parties to obtain a court order to prevent another person from purchasing guns or to remove any firearms they currently possess. Under the law, a temporary or emergency order can be issued to be reviewed in a hearing 10 days later. Like other forms of domestic violence legislation, the ERPO law, called a “red flag” law, can play an important role in protecting victims.

Understanding New Jersey’s Red Flag Law

Since the law has been in effect, as many as one ERPO a day is issued by the New Jersey judiciary. These laws are sometimes called red flag laws or gun violence restraining order laws, and they have been adopted by an increasing number of jurisdictions across the country. As incidents of gun violence and mass shootings have driven increased attention to the issue, many observers have noted that there were signs that the perpetrators of these acts posed a threat to themselves or others.

Specifically, several mass shooting perpetrators had a history of committing domestic violence or making terroristic threats against their spouses and other family members prior to the shooting incident. In some cases, mass shootings in public areas immediately followed acts of domestic violence or homicide in the family home. In theory, the law aims to identify people who pose a threat of danger and provide an immediate form of protection by removing their firearms or ability to purchase additional guns.

Much like orders issued under the Prevention of Domestic Violence Act, a temporary ERPO may be issued before the defendant has the opportunity to respond. This temporary order will be followed 10 days later by a hearing for a final ERPO, which would prohibit gun purchase, possession or ownership for one year. Under New Jersey law, people convicted of domestic violence offenses are prohibited from purchasing firearms, as are people subject to restraining orders under the Prevention of Domestic Violence Act. Domestic violence restraining orders may also prohibit the defendant from possessing guns or ammunition.

When an ERPO is issued, whether temporary or final, the defendant may not have control, possession, ownership or custody over any ammunition, guns or other firearms. They will not be able to obtain any firearms permits or licenses and will lose any current licenses, and they must surrender any ammunition, guns or firearms in their possession. A family law attorney may advise victims of domestic violence about whether seeking an ERPO is a good step to protect themselves.

Who Can File for an ERPO in New Jersey?

Judge with Gavel - Divorce Attorney New JerseyUnder the Act, a family or household member can file for a temporary order with the New Jersey Superior Court. Police, prosecutors and other third parties can also file a request for different reasons. A family or household member can be a spouse, a domestic partner, a former spouse, former live-in partner, current or former civil union partner, any other person who is currently or formerly a household member, any person with whom the defendant has a child in common, or the other person with whom the defendant expects a child if one party is pregnant. Dating partners may also apply, even if they do not live together.

In general, these are the same classes of people who can seek assistance under New Jersey domestic violence law. A family lawyer may provide advice on whether you are considered a family or household member under state law. For example, the protection may in some cases extend to roommates or domestic employees.

How Do You Seek an ERPO in New Jersey?

When a family or household member files for a temporary ERPO, they will need to include an affidavit stating the reasons they believe this order must be issued and that the respondent poses an extreme risk. They should also provide information about the firearms or ammunition they believe to be in the possession of the defendant. It is free to file for an ERPO in New Jersey, and a family lawyer may advise you about the types of information you need to provide in the initial application.

Much like a temporary restraining order in a domestic violence case, it is easier to obtain a temporary ERPO than a final order, and the temporary order may be issued ex parte before the defendant can respond. This order will be in effect for up to 10 days, in advance of a hearing held in Superior Court, where the respondent may present evidence to defend themselves against the allegations against them. To impose a final ERPO, the Superior Court must find by the preponderance of the evidence that the respondent poses a significant risk of bodily injury to themselves or others because of their possession or control of a firearm.

Once the ERPO is granted, the subject of the order can petition at any time for its termination and present new evidence and information as to why it should be lifted. They must show by a preponderance of the evidence that they do not pose a significant risk of bodily injury to themselves or others.

Criteria Used to Issue an ERPO

N.J.S.A. 2C:58-23 covers the issuing of a temporary extreme risk protective order. There are several factors that courts must consider when determining whether an issuance of the order is appropriate. These factors include the following:

  • A history of threats or acts of violence by the respondent, including on social media, directed toward themselves or others
  • A history of using, attempting to use or threatening to use physical force against others
  • Whether a temporary or final restraining order under the Prevention of Domestic Violence Act is currently in place
  • Whether a temporary or final protective order under the Sexual Assault Survivor Protection Act is in place or has been violated
  • Previous arrests, ongoing charges or convictions for violent crimes subject to indictment, disorderly persons charges, stalking offenses or domestic violence crimes
  • Prior arrests, charges or convictions for cruelty to animals or any history of cruelty to animals
  • Any history of drug or alcohol abuse or recovery from this abuse
  • Date of purchase of firearms, ammunition or other deadly weapons, and how recently this took place

The Administrative Office of the Courts has also issued seven additional factors to be considered by the courts before ruling on an ERPO, known as the Guidelines for Extreme Risk Protective Orders. These factors are as follows:

  • Reckless use, display or brandishing of a firearm
  • Previous ERPOs issued against the respondent
  • Previous violations of past ERPOs issued against them
  • Any history of previous involuntary commitment to a treatment facility or psychiatric hospital for mental illness
  • Current or former mental health treatment
  • Compliance with or rejection of mental health treatment
  • Any diagnosed mental health disorder

Extreme Risk Prevention Orders and Divorce

ERPOs can serve an important purpose in protecting victims from further harm, especially gun violence. These orders can also protect the public, especially given the strong link between domestic violence and mass shootings. However, like domestic violence laws, some parties may attempt to use them to gain an advantage in divorce proceedings. For example, an ERPO, in combination with a domestic violence restraining order, could establish a rebuttable presumption that one party should obtain sole child custody. A divorce attorney can advise you about how an ERPO could affect your pending divorce case. On the other hand, victims of violence who are afraid of an escalation might also want to consult their family law attorneys about whether they should pursue an ERPO against their former partner.

If you are concerned about an ERPO or domestic violence in the home, a divorce lawyer can help you protect yourself. Contact Jeralyn Lawrence at the offices of Lawrence Law at 908-645-1000 or use our simple online form to request an initial consultation.

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