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In re Denial of the Application of Jay Factor for a Permit to Handgun

April 21, 2010

IN THE MATTER OF THE DENIAL OF THE APPLICATION OF JAY FACTOR FOR A PERMIT TO CARRY A HANDGUN


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Lihotz and Ashrafi.

Appellant Jay Factor appeals denial of a permit to carry a handgun. We affirm.

The Code of Criminal Justice in New Jersey prohibits the carrying of a handgun without a permit. N.J.S.A. 2C:39-5b. The Code provides exemptions for law enforcement officers, members of the military on active duty, other government officials with law enforcement duties, and persons in certain other specifically designated occupations and situations. N.J.S.A. 2C:39-6.

Permits are issued pursuant to N.J.S.A. 2C:58-4, which in relevant part, provides:

c. Investigation and approval. Each application shall in the first instance be submitted to the chief police officer of the municipality in which the applicant resides, or to the superintendent [of the State Police] . . . .

No application shall be approved by the chief police officer or the superintendent unless the applicant demonstrates that he is not subject to any of the disabilities set forth in 2C:58-3c*fn1 , that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun. If the application is not approved by the chief police officer or the superintendent within 60 days of filing, it shall be deemed to have been approved, unless the applicant agrees to an extension of time in writing.

d. Issuance by Superior Court; fee. If the application has been approved by the chief police officer or the superintendent, as the case may be, the applicant shall forthwith present it to the Superior Court . . . . The court shall issue the permit to the applicant if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in section 2C:58-3c, that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.

e. Appeals from denial of applications. Any person aggrieved by the denial by the chief police officer or the superintendent of approval for a permit to carry a handgun may request a hearing in the Superior Court . . . . [(Emphasis added).]

The primary issues appellant raises, in a variety of permutations, are whether the federal and State constitutions allow the statutory requirement that the applicant show "justifiable need to carry a handgun" and, more specifically, whether "justifiable need" can constitutionally exclude an applicant's general purpose and desire to protect himself and his family.

Appellant has previously been granted permits to purchase handguns under N.J.S.A. 2C:58-3. On October 10, 2006, he applied to the Fair Haven Police Department for a permit to carry a handgun in accordance with N.J.S.A. 2C:58-4 quoted above. In an accompanying letter, he stated his purpose was to protect himself and his family, such as in the event of a terrorist attack, and it was his constitutional right to bear arms.*fn2

The Fair Haven Police conducted a records check and determined that appellant did not have a criminal record or other disqualifying offenses. Appellant had submitted handgun qualification scores administered by a certified firearms instructor, but the police required that he be tested at the Monmouth County Police Academy. In December 2006, appellant took and passed the in-service re-qualification test for use of handguns. The Fair Haven Police then informed appellant that he must obtain and ...


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