Hackensack Red Flag Attorney Adam M. Lustberg Explains How New Jersey's Red Flag Law Affects Firearm Rights

HACKENSACK, NJ - Individuals served with an Extreme Risk Protective Order in New Jersey may face the immediate seizure of all firearms, ammunition, and permits before having an opportunity to respond in court. Hackensack red flag attorney Adam M. Lustberg of Lustberg Law Offices, LLC (https://www.lustberglaw.com/red-flag-lawyer/) is providing guidance on how the ERPO process works under New Jersey law and what legal options are available to respondents facing these proceedings.

According to Hackensack red flag attorney Adam M. Lustberg, the Extreme Risk Protective Order Act of 2018, codified in N.J.S.A. 2C:58-20 to 32, allows certain individuals to petition a court to temporarily remove firearms from a person believed to pose a danger to themselves or others. The law took effect on September 1, 2019, and public reporting has documented hundreds of firearm seizures since that date. "An ERPO is a civil court order, not a criminal charge, but the consequences are immediate and far-reaching," explains Lustberg. "Respondents often learn about the order only after their firearms and permits have already been surrendered to law enforcement."

Hackensack red flag attorney Adam M. Lustberg notes that the ERPO process begins when a petitioner files a sworn affidavit with the Superior Court describing specific facts supporting the claim that the respondent poses a danger. The affidavit must also identify the number, type, and location of any firearms believed to be in the respondent's possession. A temporary ERPO can be issued the same day through an ex parte hearing, meaning the respondent is not present and has no opportunity to contest the claims at that stage.

A final hearing must then be scheduled within 10 days, though it can take longer if the respondent needs to be served. At the final hearing, the standard of proof is a preponderance of the evidence, which means the petitioner must show it is more likely than not that the respondent poses a significant danger of bodily injury. This is a lower threshold than the beyond a reasonable doubt standard used in criminal proceedings.

Attorney Lustberg emphasizes that New Jersey courts evaluate at least 15 statutory factors and 7 additional judicial guidelines when determining whether to issue a final ERPO under N.J.S.A. 2C:58-23(f). These factors include any history of threats or acts of violence toward others or oneself, a history of physical force against another person, prior arrests or pending charges for violent crimes or disorderly persons offenses, a history of substance abuse, recent acquisition of firearms or ammunition, and whether the respondent has been subject to a temporary or final restraining order under the Prevention of Domestic Violence Act. Additional judicial considerations may include whether the respondent has previously been involuntarily committed to a psychiatric facility, has received a mental health diagnosis, or has complied with treatment recommendations. "Each factor is weighed within the totality of the circumstances," Lustberg adds. "No single element is automatically decisive, which means a thorough defense strategy can effectively challenge the assumptions the petitioner relies on."

Under the statute, individuals subject to a temporary or final ERPO are prohibited from possessing, purchasing, or receiving any firearms or ammunition. All related permits, including a Firearms Purchaser Identification Card under N.J.S.A 2C:58-3 and permits to carry a handgun under N.J.S.A 2C:58-4, must also be surrendered to law enforcement. A receipt confirming surrender must be filed with the county prosecutor within 48 hours of service. An ERPO can also affect employment for individuals whose positions require firearm possession, such as law enforcement officers or armed security professionals. Special filing procedures apply when an ERPO petition is filed against a law enforcement officer, including a mandatory internal affairs investigation reviewed by the county prosecutor.

The distinction between a temporary and final ERPO is significant. A temporary order is issued ex parte without the respondent's participation and expires automatically within 10 days. A final ERPO, however, can only be imposed after a full hearing where both sides present evidence, and it remains in effect indefinitely until the court terminates it upon petition. The respondent has the right to testify, present witnesses, submit documentation, and cross-examine the petitioner's witnesses at the final hearing.

"Respondents also retain the right to petition the court to terminate a final order at any time by demonstrating changed circumstances," notes Lustberg. "Completion of mental health treatment, counseling records, employment stability, and community ties can all serve as evidence supporting termination." The burden of proof shifts to the respondent, who must show by a preponderance of the evidence that they no longer pose a significant danger. The firm reviews the petition and supporting evidence, identifies procedural and factual weaknesses, and prepares witnesses and documentation for the hearing.

Lustberg Law Offices, LLC represents respondents in ERPO proceedings and related matters throughout Bergen County and New Jersey. The firm handles cases in Bergen County Superior Court in Hackensack, as well as Passaic County, Hudson County, and Essex County Superior Courts. The service area includes communities such as Paramus, Fort Lee, Teaneck, Englewood, Ridgewood, Fair Lawn, Jersey City, Hoboken, Paterson, Clifton, Wayne, Newark, Montclair, and Bloomfield.

Purposely or knowingly violating a temporary or final ERPO constitutes contempt under N.J.S.A. 2C:29-9(e), a fourth-degree crime carrying up to 18 months in state prison and fines up to $10,000. Filing a false ERPO petition under oath can result in perjury charges, a third-degree crime carrying 3 to 5 years in prison and fines up to $15,000. For those served with an ERPO in New Jersey, consulting with an experienced defense attorney may help protect legal rights and prepare an effective response before the final hearing.

About Lustberg Law Offices, LLC:

Lustberg Law Offices, LLC is a Hackensack-based law firm dedicated to criminal defense, including ERPO proceedings, firearms offenses, and weapons cases. Led by attorney Adam M. Lustberg, the firm has more than 14 years of experience representing clients throughout Bergen County, Hudson County, Passaic County, and New Jersey. For consultations, call (201) 880-5311.

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Email: alustberg@lustberglaw.com

Website: https://www.lustberglaw.com/

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Company Name: Lustberg Law Offices, LLC
Contact Person: Adam M. Lustberg
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Phone: (201) 880-5311
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