New Jersey's red flag law is the Extreme Risk Protective Order Act of 2018, enacted as P.L.2018, c.35 and codified at N.J.S.A. 2C:58-20 through...
Reviewed by Will Luker, Founder of CCW Hub. USCCA Training Counselor, USCCA Certified Instructor, NRA Certified Instructor, Law Enforcement.
New Jersey's red flag law is the Extreme Risk Protective Order Act of 2018, enacted as P.L.2018, c.35 and codified at N.J.S.A. 2C:58-20 through 2C:58-32. It took effect September 1, 2019. The law lets a court order a person to surrender firearms, ammunition, and firearms permits when that person poses a significant danger of bodily injury to self or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.
The short title is set at N.J.S.A. 2C:58-20. The definitions that drive the rest of the act are at N.J.S.A. 2C:58-21.
Under N.J.S.A. 2C:58-21, a "petitioner" is limited to two categories:
Friends, coworkers, neighbors, teachers, and mental health professionals are not on this list and cannot file an ERPO petition directly. They can report their concerns to a law enforcement agency, which can then investigate and file. Before filing, a family or household member may ask a State, county, or municipal law enforcement agency for help, and an officer may assist in preparing or filing the petition or file the officer's own petition (N.J.S.A. 2C:58-23).
The statute also defines "recent" as within six months before the petition was filed (N.J.S.A. 2C:58-21), which matters because several of the issuance factors look at recent conduct.
One procedural fork is easy to miss. A petition against a respondent who is a law enforcement officer is filed with the agency that employs the officer, not the court. The employer immediately opens an internal affairs investigation, the disposition goes to the county prosecutor, and the prosecutor decides whether to refer the matter to the courts. The officer may not be terminated while that investigation is pending (N.J.S.A. 2C:58-23(l)). A final order against an officer is subject to the same subsection (N.J.S.A. 2C:58-24(d)).
The act runs in two stages: a temporary order issued quickly, followed by a hearing on a final order.
Temporary Extreme Risk Protective Order (TERPO). Governed by N.J.S.A. 2C:58-23. The petition includes an affidavit setting out the facts and, to the extent known, the number, type, description, and location of the respondent's firearms and ammunition. The court examines the petitioner and any witness under oath, or may rely on the supporting affidavit. There is no filing fee (N.J.S.A. 2C:58-23(c)). A judge issues a TERPO if the court finds good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to self or others by having a firearm. Because this happens before the respondent is heard, a TERPO is effectively issued ex parte. A TERPO remains in effect until the court issues a further order (N.J.S.A. 2C:58-23(h)), and any card or permit already issued to the respondent is immediately revoked under N.J.S.A. 2C:58-3(f).
Final Extreme Risk Protective Order (FERPO). Governed by N.J.S.A. 2C:58-24. A hearing in the Superior Court must be held within 10 days of the filing of the petition. The respondent is served with a copy of the petition and may appear and contest the order. The court issues a FERPO if it finds, by a preponderance of the evidence, that the respondent poses a significant danger of bodily injury to self or others by having a firearm.
Note the standards differ by stage. The TERPO standard is "good cause to believe" an "immediate and present danger." The FERPO standard is a "preponderance of the evidence" of a "significant danger." A TERPO is not issued on a preponderance standard.
When deciding whether to issue an order, the court considers the factors listed at N.J.S.A. 2C:58-23(f). The county prosecutor produces available evidence in an expedited manner, and the court weighs whether the respondent:
The same factors are considered at the final-order hearing under N.J.S.A. 2C:58-24, along with any other relevant evidence.
A TERPO prohibits the respondent from having custody or control of, owning, purchasing, possessing, or receiving firearms or ammunition, and from securing or holding a Firearms Purchaser Identification Card, a permit to purchase a handgun (N.J.S.A. 2C:58-3), or a permit to carry a handgun (N.J.S.A. 2C:58-4) while the order is in effect (N.J.S.A. 2C:58-23(g)). A FERPO prohibits the respondent from having custody or control of, owning, purchasing, possessing, or receiving a firearm (N.J.S.A. 2C:58-24(d)). For either order, the court orders surrender of the firearms, the ammunition, and the card and permits, and notifies the respondent that they may not purchase firearms or ammunition or apply for a card or permit (N.J.S.A. 2C:58-26(a)).
The surrender mechanics are set at N.J.S.A. 2C:58-26:
Rather than leaving the firearms with the agency, the respondent may request that the agency sell them and the ammunition in a safe manner to a federally licensed firearms dealer (N.J.S.A. 2C:58-26(b)(2)), or may sell or transfer title to a licensed dealer directly if the respondent does not want them back or is no longer eligible to own them (N.J.S.A. 2C:58-27). The agency transfers possession to the dealer only after the dealer shows written proof of transfer and the agency verifies it with the respondent. If the respondent surrendered to a dealer, then after the order terminates the respondent may ask the agency in writing to authorize the return, and the dealer transfers the firearm back using the same procedure as a sale from inventory under N.J.S.A. 2C:58-2 (N.J.S.A. 2C:58-26(f)).
The ERPO act does not set a fixed one-year term for a final order, and it has no separate renewal procedure. A final order stays in effect until it is terminated under N.J.S.A. 2C:58-25.
Either the petitioner or the respondent may petition to terminate a final order, and the petition may be filed at any time after the order is issued. The court holds a hearing after notice to the other party, the law enforcement agency, and the county prosecutor. If the respondent is the one seeking termination, the respondent bears the burden of proving, by a preponderance of the evidence, that they no longer pose a significant danger by having a firearm. At that hearing the court considers the same statutory factors plus any other relevant evidence, including whether the respondent has received or is receiving mental health treatment (N.J.S.A. 2C:58-25).
After an order is terminated, the respondent may petition the agency for the return of surrendered firearms or ammunition (N.J.S.A. 2C:58-26(d)). Within 30 days of receiving the petition, and after termination of the order, the agency returns the items unless the firearm has been reported stolen or the respondent is prohibited from possessing a firearm under state or federal law. At least 10 days before returning anything, the agency notifies the family or household member. If a third party proves lawful ownership of a surrendered firearm, it is returned to that owner instead (N.J.S.A. 2C:58-26(e)).
A law enforcement agency that holds surrendered firearms or ammunition for more than one year after the order terminates may destroy them under its own destruction policy (N.J.S.A. 2C:58-28).
Purposely or knowingly violating any provision of a TERPO or FERPO is a crime of the fourth degree under N.J.S.A. 2C:29-9(e), which N.J.S.A. 2C:58-29 expressly invokes and requires each order to state. Contempt proceedings involving an extreme risk protective order are heard by the Superior Court. A fourth-degree crime in New Jersey carries up to 18 months of imprisonment and a fine. Separately, a respondent who possesses a firearm in violation of an order can face unlawful possession charges under N.J.S.A. 2C:39-5, and unlawful possession of a handgun without a permit is a second-degree crime subject to the Graves Act mandatory minimum. Failing to file the surrender receipt within 48 hours is contempt of the order (N.J.S.A. 2C:58-26(b)(4)).
New Jersey does not make the entire proceeding secret. Instead, N.J.S.A. 2C:58-30 directs the Administrative Office of the Courts to keep a confidential electronic central registry of persons who have had a final ERPO entered against them and persons charged with violating a temporary or final ERPO. Registry records are released only to law enforcement investigating a crime, offense, or act of domestic violence; for a background investigation tied to a firearms permit application or law enforcement employment; or for another purpose authorized by law or the Supreme Court of New Jersey. Anyone who disseminates or discloses a registry record or report for a purpose other than those authorized is guilty of a crime of the fourth degree (N.J.S.A. 2C:58-30(b)).
The listing is not permanent. N.J.S.A. 2C:58-30(a) provides that "A respondent's information, other than information related to a violation of a temporary or final order issued pursuant to section 4 or 5 of P.L.2018, c.35 (C.2C:58-24 or C.2C:58-25), shall be removed from the registry upon the termination of the extreme risk protective order." Information about a violation of an order is the exception and stays.
A law enforcement officer who in good faith declines to file an ERPO petition is immune from criminal and civil liability, and a law enforcement agency is immune for damage or deterioration of stored or transported firearms absent recklessness, gross negligence, or intentional misconduct (N.J.S.A. 2C:58-22).
An ERPO is its own proceeding, separate from:
The federal Bipartisan Safer Communities Act of 2022 (Public Law 117-159) created grant funding to help states implement red flag and other crisis-intervention programs. New Jersey's ERPO law predates that funding and operates regardless of it.
While an order is in effect, the respondent cannot hold or obtain a Firearms Purchaser Identification Card, a permit to purchase a handgun, or a permit to carry a handgun (N.J.S.A. 2C:58-23(g)). The central registry is checked during background investigations for firearms permit applications (N.J.S.A. 2C:58-30), and a chief of police or the Superintendent of State Police evaluates an applicant's fitness under the disqualifiers in N.J.S.A. 2C:58-3.
A respondent who has been served should:
New Jersey's red flag law lets only a family or household member or a law enforcement officer petition. A judge can issue a temporary order ex parte on a finding of good cause to believe the person poses an immediate and present danger, then a Superior Court holds a final-order hearing within 10 days and issues a final order on a preponderance of the evidence. There is no filing fee, no fixed one-year term, and no renewal step; a final order lasts until it is terminated on petition, and a respondent seeking termination must prove by a preponderance that they no longer pose a danger. Surrender of all firearms, ammunition, and permits is required within tight deadlines, and violating the order is a fourth-degree crime. Anyone served should plan for immediate surrender and get counsel before the fast-moving final hearing.
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