On appeal from Superior Court of New Jersey, Hudson County, Law Division, Civil Part, Docket No. L-3600-06.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.L. Miniman and Kestin.
On January 2, 2007, the trial court entered an order with the following terms:
that Jersey City Code, Chapter 163, Article V, City Ordinance 06-116 denies the equal protection of the laws, contrary to Article I, Paragraph 1 of the New Jersey Constitution and is preempted by the New Jersey Code of Criminal Justice and is invalid in accordance with N.J.S.A. 2C:1-5d, is void, and has no legal force and effect.
The trial court's reasons for the order had been expressed on the record in a December 13, 2006 proceeding. On April 13, 2007, the trial court denied defendants' motion to reconsider.
Defendants, City of Jersey City; its mayor, Jerramiah T. Healy; and its chief of police, Thomas Comey, filed an appeal. Intervenor/Defendant, the Greenville Chapter of Associated Community Organizations for Reform Now (Acorn New Jersey), filed a separate appeal. We consolidated the appeals.
On June 27, 2008, we invited the parties to file supplemental briefs addressing the impact of the decision of the United States Supreme Court in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008), which had been handed down since oral argument. We are now satisfied that decision has no bearing on the state law issues raised in this case. Issues arising from the Second Amendment to the United States Constitution have not been raised herein.
The terms of the ordinance prohibit the sale or purchase of more than one handgun within a thirty-day period. In their three-count complaint in lieu of prerogative writs, plaintiffs challenged the ordinance as preempted by State law, as a denial of equal protection of the laws, and as void for vagueness. After considering the written and oral arguments of the parties, Judge Gallipoli held the ordinance to be invalid on preemption grounds, to violate equal protection principles, and to be "arbitrary and capricious" because it "does not and will not address the reality of the existence and availability of illegal guns in the [C]ity."
With respect to the preemption holding, Judge Gallipoli stated:
The New Jersey Legislature adopted N.J.S.A. 2C:58 et seq., establishing a set of laws in the area of gun control. The laws establish uniform procedures and requirements for the purchase and sale of firearms, issuance of gun permits, and background verifications of p[ro]spective purchasers.
2C:58-3i addresses the number of firearms a person may purchase. It reads as follows[:]
Only one handgun shall be purchased or delivered on each permit, but a person shall not be restricted as to the number of rifles or shotguns he may purchase, provided he possesses a valid firearms purchaser identification card and provided further that he signs the ...