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Bullet Hole, Inc. v. Dunbar

December 20, 2000

BULLET HOLE, INC., A NEW JERSEY
CORPORATION, AND PETER HEFFERAN,
APPELLANTS,
V.
COL. CARSON DUNBAR, SUPERIN TENDENT, DIVISION OF NEW JERSEY
STATE POLICE; JOHN J. FARMER,
JR., ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY; AND
CHRISTINE TODD WHITMAN, GOVERNOR
OF THE STATE OF NEW JERSEY,
RESPONDENTS.



Before Judges Ciancia, Alley, and Landau.

The opinion of the court was delivered by: Alley, J.A.D.

Argued November 14, 2000

On appeal from final administrative action.

This appeal involves the following issues: (1) whether, by virtue of the New Jersey Constitution's limits on the powers of the Executive Branch, the Governor was precluded from designating the Division of State Police as the agency responsible for conducting background checks under the Brady Act and (2) if the designation was valid, whether certain State Police operating procedures were invalid as having been adopted without the notice and hearing required by the Administrative Procedure Act, N.J.S.A. 52:14B-2(e).

I.

We first consider the statutory and regulatory background. In 1993, Congress amended the Gun Control Act of 1968, 18 U.S.C.A. §§ 921-928, by enacting the Brady Handgun Violence Prevention Act ("Brady Act"), Pub. L. 103-159, 107 Stat. 1536 (1993), which is codified in various sections of the Gun Control Act. The Brady Act provisions at issue in this appeal are codified as a note following 18 U.S.C.A. § 922, entitled "national instant criminal background check system." ("NICS")

A key provision bearing on this appeal reads:

(b) Establishment of system. Not later than 60 months after the date of the enactment of this Act, the Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18, United States Code, or State law. [18 U.S.C.A. § 922 Note.]

Effective November 30, 1998, the end of the sixty-month deadline specified in the Brady Act, the Federal Bureau of Investigation ("FBI") promulgated regulations implementing the NICS. 63 Fed. Reg. 58303. The regulations are codified at 28 C.F.R. § 25.1 to 25.11.(*fn1)

The regulations create a system for background checks of prospective gun purchasers (transferees) by a federal firearms licensee, defined as a person licensed by the federal Bureau of Alcohol, Tobacco, and Firearms ("ATF") as a manufacturer, dealer, or importer of firearms. 28 C.F.R. § 25.2. The licensee may seek such a background check from either the FBI through the FBI NICS Operations Center or, if the state has designated a Point of Contact for the handling of background checks, from a Point of Contact within the state. 28 C.F.R. § 25.6. Each state retains the option of choosing which alternative should govern background checks in that state. 28 C.F.R. § 25.6(a). A "Point of Contact" or "POC" is defined as follows:

POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by the NICS. A POC will receive NICS background check requests from FFLs, check state or local record systems, perform NICS inquiries, determine whether matching records provide information demonstrating that an individual is disqualified from possessing a firearm under Federal or state law, and respond to FFLs with the results of a NICS background check. A POC will be an agency with express or implied authority to perform POC duties pursuant to state statute, regulation, or executive order. [28 C.F.R. § 25.2. (emphasis added).]

In allowing each state to choose to process background checks either through its own Point of Contact or through the FBI's NICS Operations Center, the FBI perceived that its regulations would avoid the federalism objections that doomed the interim system in Printz, supra, footnote 1, as the FBI explained in its comments to the final version of the regulations. 63 Fed. Reg. 58304-05.

New Jersey has chosen the Point of Contact mechanism, under which a request for a background check is processed as follows:

(d) Access to the NICS through POCs. In states where a POC is designated to process background checks for the NICS, FFLs [federal firearms licensees] will contact the POC to initiate a NICS background check. Both ATF and the POC will notify FFLs in the POC's state of the means by which FFLs can contact the POC. The NICS will provide POCs with electronic access to the system virtually 24 hours each day through the NCIC [National Crime Information Center] communication network. Upon receiving a request for a background check from an FFL, a POC will:

(1) Verify the eligibility of the FFL either by verification of the FFL number or an alternative POC-verification system;

(2) Enter a purpose code indicating that the query of the system is for the purpose of performing a NICS background check in connection with the transfer of a firearm; and

(3) Transmit the request for a background check via the NCIC interface to the NICS.

(e) Upon receiving a request for a NICS background check, POCs may also conduct a search of available files in state and local law enforcement and other relevant record systems, and may provide a unique State- Assigned Transaction Number (STN) to a valid inquiry for a background check.

(f) When the NICS receives an inquiry from a POC, it will search the relevant databases (i.e., NICS Index, NCIC, III) for any matching record(s) and will provide an electronic response to the POC .... [28 C.F.R. § 25.6(d), (e), & (f).]

Depending on the NICS response, the Point of Contact will give the requesting licensee one of three responses: "Proceed," "Delayed," or "Denied." 28 C.F.R. § 25.6(g)(2); 28 C.F.R. § 25.6(i).

The operating hours for NICS are 9:00 a.m. to 2:00 a.m., seven days per week. 28 C.F.R. § 25.2 (definition of "NICS Operations Center's regular business hours"). But NICS is available twenty-four hours per day for "toll-free electronic dial-up access." 28 C.F.R. § 25.6(b).

In an October 6, 1998, letter to FBI Director Louis J. Freeh, Governor Whitman designated the State Police as New Jersey's Point of Contact. This followed a September 21, 1998, memorandum to Governor Whitman's chief of staff, in which then- Attorney General Peter Verniero recommended that New Jersey choose the Point of Contact option and that the State Police be designated as this State's Point of Contact.

On September 30, 1998, the FBI issued guidelines to the states setting forth standards for Points of Contact and "requirements" and "recommendations" for implementing the Point of Contact system. The guidelines indicate that a Point of Contact must be available for background checks seven days per week, except for Thanksgiving and Christmas, and that a Point of Contact's operational hours "shall be, as a minimum, 10:00 a.m. to 9:00 p.m. Monday through Saturday; and, normal retail business hours within the state on Sundays." Also, the guidelines state that "[t]he FBI will not charge Point of Contact states a fee for accessing the NICS."

The State Police issued Operational Procedures in October 1998 for the processing of NICS background checks through the State Police in its role as a Point of Contact. The procedures declare that the State Police's NICS service will be available by telephone on weekdays, except on state holidays, between 9:00 a.m. and 8:00 p.m. and on Saturdays between 10:00 a.m. and 5:00 p.m. These procedures do not provide for telephone service on Sundays as provided in the FBI Guidelines. Fax service is available every day for twenty-four hours. A $15 charge is made for each telephone or FAX request.

The State Police also adopted a User Agreement, which firearms licensees are required to sign in acknowledgment of having received the Operational Procedures.

On October 28, 1998, the State Police superintendent sent letters to state firearms licensees notifying them of the Point of Contact system and enclosing an instruction package and a User Agreement for their signatures.

II.

On November 18, 1998, appellants filed a timely appeal from the Governor's designation of the State Police as the Point of Contact in New Jersey. The notice of appeal named then-Attorney General Verniero and then-State Police Superintendent Williams as respondents. Appellants are Bullet Hole, Inc., a firearms dealership in Belleville, and Peter Hefferan, allegedly a "prospective" firearms purchaser. Each has filed a sworn or certified explanation alleging how each will be harmed by the $15 fee and the above hours of operation of New Jersey's Point of Contact.

In his November 11, 1998 affidavit, Hefferan argued that he was planning to buy several handguns and a rifle in December 1998 and that because of his hours of work, he normally bought firearms at night or on Sundays, times during which NICS access would not be available once the State Police procedures are in place. As a result, he asserts, it will be "extremely difficult, if not impossible" for him to purchase firearms. The $15 fee for NICS access through the State Police, he also claims, is unreasonable, was adopted without due process, and is "outrageous." He asserts that he "will be immediately and irreparably injured if the State Police are allowed to be the New Jersey NICS Point of Contact under the rules promulgated by the State Police in November 1998."

In his undated certification, the owner of Bullet Hole asserted that: Bullet Hole was open from 9:00 a.m. to 9:30 p.m. during the week, from 9:00 a.m. to 5:00 p.m. on Saturdays, and from 12:00 p.m. to 5:00 p.m. on Sundays; that Bullet Hole was planning to expand its facility, which would increase its business "five fold"; that the POC system and procedures adopted by the State Police would restrict Bullet Hole's hours and thereby prevent this expansion and eliminate 40% of Bullet Hole's business; and that Bullet Hole's consignment-sales business would be impaired by the $15 charge, as prospective sellers will go to out-of-state dealers. Bullet Hole contends that "[m]any of the Bullet Hole, Inc. customers are blue collar workers who work in shifts. Often, the only time these individuals have to shop for firearms and related equipment is on Sundays. Additionally many of the Bullet Hole, Inc. customers shop in the later evening hours after work and having dinner with their families. The loss of these prospective customers will cause the Bullet Hole, Inc. to suffer immediate and irreparable harm."

In December 1998, we denied appellants' motion to stay the State Police's procedures. In March 1999 appellants amended their notice of appeal to include Governor Whitman as a respondent.

III.

We first address the appealability of the Governor's designation. Respondents do not contest its appealability. R. 2:2-3(a)(2) does not expressly authorize appeals from such actions by a Governor, but in our view the rule encompasses those actions under the rubric of "actions of any state administrative agency or officer," inasmuch as the Governor is indisputably the State's chief executive or "administrative officer." Cf. New Jersey Builders Ass'n v. Byrne, 80 N.J. 469, 471 (1979) (accepting without discussion an appeal from a Governor's executive order); Dalton v. Kean, 213 N.J. Super. 572, 574 (App. Div. 1986), certif. denied, 107 N.J. 110 (1987) (accepting without discussion an ...


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