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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 submit a psychological or psychiatric evaluation, which he did by letter dated January 2, 2007, from a licensed psychologist.

After the application was complete, the Fair Haven Police Department failed to act upon it in writing for almost two years, until appellant wrote to the Police Chief inquiring about its status. The Chief responded by letter dated December 5, 2008, apologizing for inadvertent delay and stating that personnel changes and miscommunication had caused the Police Department to overlook a written response to his application.

The Chief denied the application on the ground that appellant had not justified his "need to carry a handgun in accordance with current guidelines."

In his appeal to the Superior Court pursuant to N.J.S.A. 2C:58-4e, appellant submitted approximately 300 pages of written argument, and he testified at a hearing before the judge designated to review firearms applications. His testimony did not expand on his "justifiable need" to carry a handgun but was more in the nature of argument that New Jersey was violating his constitutional and common law civil rights by denying him the right to carry a handgun.

The Fair Haven Chief of Police did not testify or otherwise appear at the hearing. The State presented brief testimony from Sergeant Sherry Lambert, who was then assigned to address applications for firearms permits in that Police Department. She testified that the delay in acting upon the application was due to a mistaken belief that an official letter of denial had been earlier mailed to appellant.

At the conclusion of the hearing, the Superior Court gave its decision orally, and it issued an order dated May 9, 2009, denying the permit. Rejecting appellant's federal and State constitutional arguments, the court determined that appellant met the conditions and qualifications of the statute except for a "justified need" to carry a handgun as defined by prior New Jersey cases.

In his pro se brief on appeal, appellant presents a discourse on constitutional and common law civil rights; the founding history of this country, including debates at the drafting of the federal constitution and related state declarations of rights; interpretation of our State constitution to include a right to bear arms; and rejection of New Jersey case authority contrary to his positions. While interesting and debatable in parts, especially in the light of recent Second Amendment developments in the Supreme Court of the United States, appellant's arguments fail to persuade us that he is entitled to a permit under the laws of New Jersey. Even if we were inclined otherwise, we are bound to follow the law as enunciated by the Supreme Court of New Jersey.

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), the Court rejected a constitutional challenge to the State's Gun Control Law enacted in 1966. It held that the State's police power, in particular, protection of the general welfare, authorizes the Legislature to regulate firearms. Id. at 102; see also State v. Angelo, 3 N.J. Misc. 1014, 1015 (Sup. Ct. 1925) (upholding State's power to prohibit possession of a concealed weapon).

Our State constitution, adopted in 1947, contains no express provision like the Second Amendment of the federal constitution preserving a right to keep and bear arms. See Burton, supra, 53 N.J. at 101. Appellant makes numerous arguments that other provisions in the State constitution should be interpreted to guarantee such a right. We have considered appellant's arguments for such an interpretation of the New Jersey Constitution and conclude that they are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

With respect to a federal constitutional challenge, the Court in Burton, supra, reasoned that the Second Amendment protects only a collective right to keep and bear arms related to an organized state militia, not an individual right for purposes of self-protection. 53 N.J. at 95-101. The United States Supreme Court recently rejected that reasoning and interpretation of the Second Amendment in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008). Through exhaustive analysis of the history of the Second Amendment and rights and laws regarding firearms, the Court held that the Second Amendment protects an individual's right to keep and bear arms without regard to participation in an organized or other militia. Id. at ___, 128 S.Ct. at 2821-22, 171 L.Ed. 2d at 683-84.

Heller considered gun control laws of Washington, D.C., which are subject to the restrictions contained in all provisions of the federal constitution. Historically, however, the Second Amendment has not been applied to restrict State laws. See United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588, 591-92 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615, 619 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 875, 38 L.Ed. 812, 813 (1894). In Burton, supra, 53 N.J. at 98, the New Jersey Supreme Court also held that the Second Amendment does not apply to the states but only to "congressional action."

The status of that holding is now uncertain. The United States Supreme Court recently heard argument regarding laws in Chicago restricting possession of handguns in the home, and the Court is likely to address again whether the Second Amendment applies to State laws. See McDonald v. City of Chicago, (Sup. Ct., No. 08-1521, argued March 2, 2010), opinion below, NRA v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).

Even if the Second Amendment applies to the States, and thus to N.J.S.A. 2C:58-4, the United States Supreme Court has not held or even implied that the Second Amendment prohibits laws that restrict carrying of concealed weapons. The Court in Heller, supra, did not "undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment[.]" ___ U.S. at ___, 128 S.Ct. at 2816, 171 L.Ed. 2d at 678. It was reviewing the constitutionality of a District of Columbia law banning possession of firearms in the home. Id. at ___, 128 S.Ct. at 2822, 171 L.Ed. 2d at 683-84. In the course of holding that law unconstitutional, the Court also wrote, "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." Id. at ___, 128

S.Ct. at 2816, 171 L.Ed. 2d at 678. The Court labeled such prohibitions "presumptively lawful regulatory measures." Id. at ___ n.26, 128 S.Ct. at 2817 n.26, 171 L.Ed. 2d at 678 n.26. Nothing stated in Heller leads us to conclude that New Jersey may have run afoul of the Second Amendment by prohibiting appellant from carrying a handgun without a permit.

Focusing on the statute, appellant argues that our State courts have misapplied N.J.S.A. 2C:58-4, and its pre-Code predecessor, by holding that an applicant must prove "an urgent necessity" to carry a handgun, and that a general purpose to protect oneself and one's family is insufficient to satisfy the statutory requirement of "justifiable need."

In Siccardi v. State of New Jersey, 59 N.J. 545 (1971), the Court held that an owner of a movie theater did not meet the statutory requirement of "need" to carry a weapon although on a nightly basis he had to deposit cash receipts at a bank. The Court referred to policy guidelines issued by the State's Assignment Judges*fn3 limiting issuance of permits to persons employed in security work and "to such other limited personnel who can establish an urgent necessity for carrying guns for self-protection." Id. at 557. The Court said, "One whose life is in real danger, as evidenced by serious threats or earlier attacks, may perhaps qualify within the latter category but one whose concern is with the safety of his property, protectible by other means, clearly may not so qualify." Ibid.

Appellant argues that an applicant should not have to prove he or his family have already been attacked and harmed before the State permits him to carry a handgun for protection. We do not view "the Siccardi rule" as quite that restrictive, but nevertheless, the Supreme Court confirmed a second time that a permit to carry a handgun should only be issued to "those who can establish an urgent necessity for protection of self or others - as for example, in the case of one whose life is in danger as evidenced by serious threats or earlier attacks." In re Preis, 118 N.J. 564, 566, 571 (1990) (emphasis added). The Court said further: "Generalized fears for personal safety are inadequate, and a need to protect property alone does not suffice." Id. at 571 (citing Siccardi, supra, 59 N.J. at 557).

Appellant contends, among other arguments, that the Court's decisions in Preis and Siccardi are erroneous because: (1) the statute does not include language requiring a showing of "urgent necessity" but only "justifiable need"; (2) under the Second Amendment of the federal constitution, the State Constitution, and civil rights recognized by the common law, "justifiable need" includes protection of oneself and one's family against general dangers; (3) the Court improperly and incorrectly relied upon English law to hold that the common law of this country and this State did not protect a citizen's right to bear arms; (4) by delegating power to Superior Court judges to issue permits, the statute violates the separation of powers clause of the State Constitution, N.J. Const., art. III, ¶ 1*fn4 ; (5) in adopting guidelines issued by the Assignment Judges for issuance of permits, the Court violated requirements of the Administrative Procedure Act for adoption of administrative rules, N.J.S.A. 52:14B-1 to -13; and (5) exemptions from the permit requirement for retired law enforcement officers and other persons pursuant to N.J.S.A. 2C:39-6 violate appellant's right to equal protection of the laws. Despite these arguments, the clear holdings of the New Jersey Supreme Court are binding upon this court, and we must follow them unless directed otherwise by that Court or the United State Supreme Court. See State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009); State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976).

Appellant also argues that the failure of the Fair Haven Police Department to act on his application for almost two years required that a permit be granted automatically. The statute requires that the police chief act within sixty days from filing of an application or "it shall be deemed to have been approved." N.J.S.A. 2C:58-4c. The reviewing judge determined the automatic approval provision did not bind him as the official who must finally decide whether the terms of the statute have been satisfied. We agree.

In other contexts, the courts have cautioned against automatic approval under statutory provisions when an administrative body does not act within a deadline. See Matturri v. Bd. of Trs. of the Jud. Ret. Sys., 173 N.J. 368, 379-80 (2002); King v. N.J. Racing Comm'n, 103 N.J. 412, 422 (1986); Fallone Props. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 568 (App. Div. 2004). Here, a formal decision on the application lagged because of inadvertence, mistake, or negligence of the Fair Haven Police Department, but appellant has presented no evidence of purposeful delay, bad faith, inexcusable negligence, or gross indifference. See Matturri, supra, 173 N.J. at 379. More important, even if the Police Department's delay should have precluded its objection under N.J.S.A. 2C:58-4c, the delay could not deprive the Superior Court of its decision-making authority under N.J.S.A. 2C:58-4d or e. The statute expressly requires that the Superior Court make its own determination of whether the applicant qualifies for a permit.

Finally, we have considered appellant's additional arguments, including: that the State violated his right to discovery, that he was denied his right of confrontation because the Police Chief did not personally attend the hearing and was not available for cross-examination, that his Fourth Amendment rights were violated when the police "held" him at the police station while they conducted a fingerprint check, that the police were required to accept the handgun qualification scores he had obtained from a certified firearms instructor, and that the fee provision of the statute was violated because the psychologist he engaged to attest to his mental health charged him $300. These and all other arguments raised that we have not specifically addressed are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In sum, appellant did not show a "justifiable need" to carry a handgun, as that statutory requirement has been defined in Siccardi, supra, 59 N.J. at 557, and Preis, supra, 118 N.J. at 566.

Affirmed.


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