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In re Revocation of Gun Permits Issued to John S. Delaney. John S. Delaney

Decided: November 16, 1976.

IN THE MATTER OF THE REVOCATION OF GUN PERMITS ISSUED TO JOHN S. DELANEY. JOHN S. DELANEY, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF TEANECK, TEANECK POLICE DEPARTMENT AND CHIEF ROBERT FITZPATRICK, DEFENDANTS-RESPONDENTS



Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

Plaintiff filed a replevin action in the Bergen County District Court seeking the return of five handguns confiscated from his residence by officers of the Teaneck Police Department. Shortly thereafter the Teaneck Chief of Police brought an action in the Bergen County Court seeking revocation of "five gun permits" which he had earlier issued to plaintiff on various dates. The two actions were consolidated for trial in the County Court.

Plaintiff alleged in his replevin complaint that on the date in question he was lawfully in possession of five pistols, that they were wrongfully taken from him by defendants, and that they refused to return the same despite demand therefor. The answer alleged that "by his actions in firing said guns outside and inside his home, while drinking alcoholic beverages," plaintiff created "a situation of danger to himself, the occupants of his home, and surrounding neighbors." It was further asserted that the guns had to be held "until plaintiff can demonstrate to the Court that the public will not be endangered by the return of the guns." Additionally, the answer alleged that plaintiff "has lost his right to hold permits for said guns by actions dangerous to public safety."

The petition filed thereafter by the chief of police related the issuance of five gun permits to plaintiff and the alleged conduct of plaintiff on the night in question. It asserted that "the continuance of the permits and the retention of the guns by the said John S. Delaney is not in the best interests of the public health, safety and welfare." An order was sought "for the cancellation of the permits issued."

After a hearing the trial judge, sitting without a jury, entered judgment (1) for "no cause of action" in the replevin action; (2) requiring plaintiff to return "his firearms

purchaser identification card to the police department of the Township of Teaneck" and revoking the same and "any rights in permits previously issued", and (3) ordering that the guns then in the possession of the police be retained by them and sold "in accordance with law." This appeal ensued.

Plaintiff contends that (1) his firearms were unlawfully confiscated; (2) he had no pistol permit capable of being revoked; (3) the hearing was not sufficient to support the order revoking his firearms purchaser identification card in that he was not afforded sufficient notice of such intended revocation; (4) defendants did not bear their burden of proving that the permits and identification card should be revoked, and (5) the trial judge committed error in not allowing him to offer evidence of his qualification and general ability to handle the firearms.

N.J.S.A. 2A:151-16 provides, in pertinent part, as follows:

No property right exists in firearms unlawfully possessed, carried, acquired or used, and all such firearms are declared to be nuisances and forfeited to the State. When such forfeited firearms are taken from any person, they shall be surrendered to the sheriff of the county in which taken or to the head of the police department * * * and may be disposed of when they are no longer needed for evidential purposes * * *

It is not in dispute that the handguns in question were lawfully acquired by plaintiff pursuant to purchase permits issued under N.J.S.A. 2A:151-33. Furthermore, plaintiff's possession of the firearms in his own residence was lawful. N.J.S.A. 2A:151-42(a). The permit provisions of N.J.S.A. 2A:151-41(a) were not applicable. Unless, therefore, another ground existed for the forfeiture and confiscation of the guns, plaintiff was entitled to their return.

We cannot tell from the petition precisely what the chief of police was endeavoring to accomplish thereby. If the purpose was the ...


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