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In re Application of Peterson

February 11, 2008

IN RE APPLICATION OF DENNIS PETERSON FOR FIREARMS IDENTIFICATION CARD


On appeal from New Jersey Supreme Court, Law Division, Warren County, A-01-07-2112.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 14, 2008

Before Judges A. A. Rodríguez and Collester.

The Warren County prosecutor appeals from the February 27, 2007 order of the Law Division granting Dennis Peterson's application for a firearms purchaser identification card (FPIC). We reverse.

Peterson made application on October 3, 2006 for a FPIC. On December 19, 2006, the Independence Township police chief denied the application on grounds that Peterson did not disclose a prior criminal history, that he falsified his application, and that the issuance of a FPIC to him was not in the best interests of public health, safety, and welfare. After Peterson appealed, the State added as a reason for denial of the permit that Peterson previously had weapons seized following a complaint of domestic violence and entry of a temporary restraining order (TRO) that were not returned to him. The prosecutor cited N.J.S.A. 2C:58-3(c)(8), enacted in 2004, which provides that:

No handgun purchase permit or firearms purchaser identification card shall be issued . . . [t]o any person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991," P.L. 1991, c. 261 (2C:25-17 et seq.) and whose firearm has not been returned.

At the hearing it was disclosed that in late 2000, Peterson's former wife told him that she wanted to divorce him. Peterson made threats to beat or kill her co-worker and burn down the store where she worked even if she was inside. She then filed a domestic violence complaint. While serving the TRO, the police seized ten weapons from Peterson's home: two BB guns, two .22 caliber handguns, four shotguns, and two high-powered hunting rifles. On October 26, 2000, the TRO was vacated after Peterson appeared before the Family Court and agreed not to engage in any harassing conduct or communication with his former wife or the other man.

The Independence Township police turned over the firearms to the Warren County Prosecutor's Office on November 1, 2000, and the following day the prosecutor petitioned to have the weapons forfeited. Peterson said he could not regain possession of the firearms because he did not have a permit for the handguns or a FPIC for the others. On March 22, 2001, a consent agreement was reached between Peterson and the prosecutor's office to transfer the BB guns, one of the .22 caliber guns, the shotguns, and one of the high-powered hunting rifles to a third party. By the terms of another consent order on March 27, 2001, Peterson agreed to forfeit the other .22 caliber gun and hunting rifle to the State. Six years later on October 3, 2006, Peterson applied for the FPIC, and was rejected by the chief of police.

Following the hearing on appeal to the Law Division, the judge issued an order accompanied by a written decision granting Peterson's application for a FPIC. The judge found that Peterson credibly testified that he had not knowingly provided false answers respecting the thirty-seven-year-old offenses and determined that issuance of a FPIC to Peterson would not be contrary to public health, safety, and welfare because he had remarried, had a responsible job, and posed no public threat.

The court also rejected the State's argument that Peterson should be precluded by N.J.S.A. 2C:58-3(c)(8) from obtaining a FPIC as a "person whose firearm was seized pursuant to the 'Prevention of Domestic Violence Act of 1991' . . . and whose firearm has not been returned," because it was unfair and inappropriate to apply the statute to Peterson since it was enacted three years after he voluntarily consented to the forfeiture of his weapons.

In his written opinion the judge stated:

The Prosecutor seeks to subject the applicant to a provision of the statute that was not in effect at the time the applicant engaged in the conduct covered by the statute. The applicant argues that the enforcement of such a limitation on his ability to obtain a firearms purchaser identification card violates notions of fundamental fairness. This Court agrees. . . . Egregious deprivation would surely be the result if this applicant were precluded from obtaining a firearms purchaser identification card by virtue of the fact that he consensually surrendered his weapons at a time when it was impossible for him to have known that such action would later subject him to lifelong deprivation of his second amendment right.

Therefore, the trial judge held that despite the language of N.J.S.A. 2C:58-3(c)(8), there is no prohibition for a person obtaining a FPIC when his weapons were seized prior ...


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