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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 violation of police department policy. He testified that after the court clerk failed to respond to his presence,
I removed my pistol from my right shoulder. . . And I raised it straight up towards the ceiling. And I looked at her and I laughed. I said, will this get me waited on any faster? And [the clerk] started laughing and she said, no that's not going to get you waited on any faster. Put it away. . . .
There was another clerk there. . . And she was a little startled. She wasn't really laughing and she was a little taken back by my actions. . . I knew that I had made a mistake because she was not taking it like the other court clerk did, or, in my mind, a joke, a very poor joke, and I regret that I ever did that to this day.
Even Gunther's own police witness admitted on cross- examination that Gunther's conduct was inappropriate and potentially dangerous, and was "something that you're specifically trained not to do."
Gunther also testified to using his police authority to obtain information while serving on a board of education. As the trial judge concluded, Gunther "admitted that he did unauthorized criminal and motor vehicle lookups of school personnel while on the Board of Education." Gunther admitted that he was charged with misconduct as a result of his actions while on the school board and that the allegations of misconduct were substantiated after an investigation. Nonetheless, at the hearing he insisted that he still thought he was "in my right" to do the investigation. Gunther also testified that he criticized a former Monmouth County prosecutor and made complaints about alleged criminal activity in the school system.*fn1
In a written opinion dated April 5, 2006, the trial judge concluded that pursuant to N.J.S.A. 2C:58-3c(5), the issuance of a handgun permit to Gunther would "not be in the interest of the public health, safety or welfare." He based this conclusion on the following findings:
This Court finds that the incident of February 24, 1998 is so egregious and is such an example of irresponsible behavior that . . . the issuance of a firearms identification card would not be in the interest of the public health, safety and welfare. The Court further finds that defendant's behavior as a member of the Board of Education, using his police position to obtain confidential information of school board employees is another example of poor judgment and irresponsible behavior. The apparent uncorroborated complaint to law enforcement authorities of criminality in the . . . [school] system is another example of irrational thought and action.
On this appeal, defendant raises the following points for our consideration:
POINT I: EXPUNGED MATERIAL MAY NOT BE RELEASED UNLESS THERE IS A DEMONSTRABLE COMPELLING NEED BASED ON SPECIFIC FACTS AND THE ARREST OR CONVICTION IS THE "OBJECT OF THE LITIGATION OR JUDICIAL PROCEEDING."
POINT II: UNDER N.J.S.A. 2C:58-3(c), A PERSON OF GOOD CHARACTER AND REPUTE IN THE COMMUNITY CANNOT BE DENIED A HANDGUN PERMIT BECAUSE HE EXERCISED POOR JUDGMENT AND IRRESPONSIBLE BEHAVIOR ON A SPECIFIED OCCASION.
We reject Gunther's first point substantially for the reasons stated in the trial judge's cogent written opinion granting the State's motion. The expungement statute provides in relevant part:
Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings.
[N.J.S.A. 2C:52-19 (emphasis added).]
We agree with the trial judge that the "subject matter" of Gunther's expunged arrest, namely his alleged misuse of a firearm, was clearly at issue in this litigation. Moreover, even if the trial court had not allowed the State to inspect the records, the State could have presented witness testimony concerning Gunther's conduct during the 1998 incident. It was that conduct, rather than the fact of the arrest, on which the judge relied in reaching his decision.*fn2 As we stated in an analogous case involving an applicant admitted to PTI, "[t]he dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm or recover one previously taken by the police." In re Osworth, 365 N.J. Super. 72, 78 (App. Div. 2003). A police officer's past misuse of his service weapon, whether or not it results in the officer's arrest, is certainly relevant to the officer's entitlement to a hold a gun permit after retirement.
This brings us to defendant's second point. In considering defendant's contentions, we bear in mind the deference due the factual findings of the trial court following a testimonial hearing. See State v. Locurto, 157 N.J. 463, 474 (1999). Based on our review of the entire record, we conclude that the trial judge's factual findings are well-supported by the record and that his findings concerning Gunther's misuse of his service weapon and his abuse of his police power while on the board of education, justify denying him a gun permit.*fn3
As we held in State v. Cunningham, 186 N.J. Super. 502, 507 (App. Div. 1982), an applicant's previous negligence in handling a firearm can support the denial of a handgun permit. See also Osworth, supra, 365 N.J. Super. at 79. In Cunningham, we followed the Supreme Court's holding in Burton v. Sills, 53 N.J. 86 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed. 2d 748 (1969), in which the Court construed the "public interest" section of the gun permit statute:
[N.J.S.A. 2C:58-3c(5)] also provides that no permit or identification card shall be issued "to any person where the issuance would not be in the interest of the public health, safety or welfare." At oral argument the Attorney General took the position, with which we agree, that the quoted language was intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.
[Burton, supra, 53 N.J. at 90-91.]
Gunther's misuse of the firearm together with his misuse of his police authority while on the school board, and his testimony indicating that he still does not understand why the latter conduct was wrong, calls his judgment into substantial question. Possession of a firearm gives the holder power to intimidate others and to wreak enormous destruction, including potentially the destruction of human life. An applicant who has demonstrated a past willingness to misuse police power, and specifically to misuse a firearm, is a poor candidate for a firearm permit. We find no error in the trial court's determination to reject Gunther's appeal.