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In re Appeal of Denial of Permit to Purchase a Handgun by Gunther

September 19, 2007

IN THE MATTER OF APPEAL OF DENIAL OF PERMIT TO PURCHASE A HANDGUN BY MICHAEL GUNTHER


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, App. No. GP 2005-12-0033.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2007

Before Judges Weissbard and S.L. Reisner.

Michael Gunther appeals from a trial court order dated July 17, 2006, denying his application for a handgun permit. We affirm.

I.

This dispute had its inception in a February 24, 1998 incident in which Gunther, then a Howell Township police officer, admittedly misused his service weapon. According to his own testimony, while waiting outside the municipal court clerk's office to obtain some papers needed to release a prisoner, Gunther drew his service weapon, pointed it at the ceiling and asked one of the clerks if this action would cause her to wait on him any faster. Gunther does not dispute that the weapon was loaded, although he claimed that there was not a round in the chamber at the time. He does not dispute that his action was a violation of police department rules and that it was an inappropriate use of the weapon. He claimed it was a "bad joke."

As a result of his actions, Gunther was indicted for possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4a, and official misconduct, N.J.S.A. 2C:30-2a. Gunther was admitted to pre-trial intervention (PTI), conditioned on his retiring from the police department. He was permitted to return to duty at headquarters for a sufficient period to qualify him for retirement, but was not permitted to carry a weapon during that time. He successfully completed PTI and, as a result, the charges against him were dismissed in July 2000.

On February 1, 2000, the New Jersey State Police issued Gunther a temporary permit to carry a handgun as a retired police officer. However, on November 17, 2000, the Monmouth County Prosecutor moved to revoke the permit, contending that Gunther had not revealed pertinent information when he applied for it. By order dated January 5, 2001, a Law Division judge granted the motion and revoked Gunther's handgun carrying permit and authorization to purchase firearms. Gunther did not appeal this order. However, he applied for expungement of the records of his arrest and indictment. His expungement application was granted by order of February 23, 2001.

On April 29, 2003, Gunther applied for a duplicate firearms purchaser identification card, disclosing in that application the revocation of his previous permit. By letter dated May 28, 2003, the Howell Township Police Chief denied the application. Gunther appealed the denial to the Law Division. In connection with Gunther's appeal, the State moved for an order permitting inspection or release of the expunged information to be considered in relation to the appeal.

In a letter opinion, dated October 30, 2003, the trial court granted the State's application. The judge construed the expungement statute, N.J.S.A. 2C:52-19, which permits leave to inspect expunged records upon a showing of "compelling need" and "in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings." He reasoned as follows:

First, this appeal will determine whether or not Mr. Gunther is a suitable firearm carrier. The obvious public welfare issues arising from such a determination clearly creates a compelling need. Likewise, the facts are sufficiently specific. The State contends that the compelling need arises from the specific application Mr. Gunther filed. The State asks that the application be considered in light of the specific incident that occurred on February 23, 1998. Second, the subject matter of the records is the object of the present judicial proceedings. The February 24, 1998 incident may be directly relevant to the disposition of Mr. Gunther's appeal. The subject matter of the expunged records certainly is the object of the present proceedings.

I find that a gun permit hearing is precisely the type of judicial proceeding in which the legislature envisioned a judge suspending the protections afforded by an expungement. . . . A proper decision in such a hearing is contingent upon the presentation of all relevant considerations. The subject matter in the expunged documents is clearly relevant to the Court's determination of whether or not the public's safety may be compromised by the grant of the permit.

The appeal hearing took place on March 30, 2006. While the facts underlying Gunther's expunged arrest were presented through the State's evidence at the hearing, as previously indicated defendant also admitted the essential facts relating to the 1998 incident with which he was charged. Although he denied actually pointing the gun at the court clerk, he admitted he wrongfully drew a loaded service weapon in ...


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