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In Re the Application of Robert Atkins For A Permit To Carry A Firearm.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 10, 2011

IN RE THE APPLICATION OF ROBERT ATKINS FOR A PERMIT TO CARRY A FIREARM.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. W-09-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 15, 2010

Decided: Before Judges Cuff and Sapp-Peterson.

Applicant Robert Atkins appeals from the February 23, 2010 order denying his application for a permit to carry a firearm. Atkins is a fugitive recovery agent, bail bondsman, and repossession agent doing business in Sussex County.

On appeal, Atkins raises the following arguments:

I. THE LOWER COURT ERRED IN FAILING TO GRANT THE APPLICANT'S APPLICATION FOR A PERMIT TO CARRY A FIREARM UNDER N.J.S.A. 2C:58-4C BECAUSE HE HAS DEMONST[R]ATED A

"JUSTIFIABLE NEED" TO CARRY A FIREARM.

II. THE LOWER COURT ERRED IN FAILING TO GRANT THE APPLICANT'S APPLICATION FOR A PERMIT TO CARRY A FIREARM UNDER N.J.S.A. 2C:58-4C BECAUSE MORE THAN SIXTY DAYS HAD LAPSED BETWEEN THE INITIAL APPLICATION AND THE DENIAL OF THE STATE POLICE.

Obtaining a permit to carry a gun "is the most closely-regulated aspect of gun-control laws." In re Preis, 118 N.J. 564, 568 (1990). The procedure for obtaining a permit to carry a handgun is controlled by N.J.S.A. 2C:58-4. As an initial step, an applicant must submit an application to the chief police officer of the municipality in which the applicant resides or to the superintendent if there is no chief police officer in the town where the applicant resides. N.J.S.A. 2C:58-4c. Here, plaintiff submitted his application to the State Police Superintendent.

The criteria the police chief or superintendent must follow is outlined in N.J.S.A. 2C:58-4c:

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., that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.

The permit itself is issued by the Superior Court of the county in which the applicant resides. N.J.S.A. 2C:58-4d. Under that subsection:

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 of the county in which the applicant resides. . . . 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 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. [N.J.S.A. 2C:58-4d.]

At applicant's hearing, the parties and the court agreed that the only issue was whether applicant had demonstrated a justifiable need to carry a handgun.

Justifiable need is defined in the regulations adopted pursuant to N.J.S.A. 2C:58-4d as, "urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry a handgun." N.J.A.C. 13:54-2.4(d)1.

The question of whether categorical exclusions or presumptions could be used to determine whether applications for permits to carry handguns should be approved or denied was considered in In re Borinsky, 363 N.J. Super. 10 (App. Div. 2003). In Borinsky, several fugitive recovery agents sought permits to carry handguns from the police chiefs in their municipalities. Id. at 12. Each application was denied and each rejected applicant appealed to the Law Division pursuant to N.J.S.A. 2C:58-4e. Ibid. One applicant, whose application was approved by his municipal chief of police, came before the Law Division pursuant to the trial court's regulatory oversight responsibilities under N.J.S.A. 2C:58-4d. Ibid.

The matters were heard in two different counties. In Morris County, the Law Division judge reversed the one approved application and upheld the denied applications. Ibid. The Morris County judge viewed fugitive recovery agents as not within a class entitled to permits to carry handguns. Id. at 24.

In Cumberland County, a judge came to the opposite conclusion. There, the court granted the permits sought because "fugitive recovery agents, as a class, qualify for handgun permits because of the dangers inherent in their work." Ibid.

This court rejected both approaches, noting "[t]he status of fugitive recovery agent is not recognized for any purpose by State statute." Id. at 25. We explained: we differ with the views of both trial judges that the handgun-carry permit issue regarding fugitive recovery agents can be dealt with categorically to require either a "grant" or "deny" result or presumption in every instance. [Id. at 26.]

Accordingly, we held "that each application must be dealt with on its own merits, on a case-by-case basis." Ibid.

Here, Judge Conforti correctly analyzed plaintiff's application on its merits. The judge considered whether, "the carrying of a handgun for Mr. Atkins, the bail bondsman, the bounty hunter, [is] necessary to reduce the threat of unjustifiable serious bodily injury." Judge Conforti concluded that despite the inherent danger of plaintiff's occupation, borne out most seriously by the physical confrontation with one fugitive, plaintiff did not demonstrate an "urgent necessity for self-protection." N.J.A.C. 13:54-2.4(d)1.

Unlike the trial judges in Borinsky, Judge Conforti correctly adopted a case-by-case approach to determine if plaintiff demonstrated a justifiable need. Thus, the focus of review should center on whether Judge Conforti correctly determined that the dangers faced by plaintiff did not justify a need to carry a handgun.

In Preis, the Court noted that urgent necessity for self-protection justifying a need to carry a handgun cannot be met simply by "[g]eneralized fears for personal safety." 118 N.J. at 571 (citing Siccardi v. State, 59 N.J. 545, 557-58 (1971)). Siccardi presented a situation where the applicant could only articulate generalized fears. In that case, the owner of a movie theater had to carry substantial amounts of money from the theater and deposit it at a bank on a nightly basis. Siccardi, supra, 59 N.J. at 547. The theater owner alleged he needed a handgun because of incidents involving robberies and beatings in the vicinity of the theater. Id. at 547-48. The Court explained "'[n]eed' is a flexible term which must be read and applied in the light of the particular circumstances and the times." Id. at 555. The Court upheld the denial of the theater owner's application because:

We are not concerned with Siccardi's theater or his home but only with his trips between the theater, the night depository and his home. So far as the protection of his property is concerned, he admittedly has suitable alternatives. So far as the suggested threats to his life are concerned, we accept the view of the local Chief of Police that they were not serious in nature and did not call for any police action. It is noteworthy that he has never been subjected to a street assault or attack. . . .

[Id. at 558.]

In addition to these considerations, Siccardi also emphasizes that protection of property, in addition to generalized fears for personal safety, does not justify the need to carry a handgun. Ibid.; Preis, supra, 118 N.J. at 571. In upholding the denial of the permit, the Court noted the alternatives available to the theater owner to protect his receipts. Siccardi, supra, 59 N.J. at 558.

Borinsky follows this analysis. This court explained "[i]n conducting their activities to vindicate the monetary interests of the bail bondsmen who retain them, the applicants are free to seek police assistance. They have no legal responsibility to act without it, and thus have no special standing to claim the right to permits to carry handguns in order to do so." Borinsky, supra, 363 N.J. Super. at 25. The court is essentially analogizing the monetary value of apprehending a fugitive to using a weapon to protect property. In both situations, the court explains, such a goal does not justify the need to carry a handgun. Id. at 24-25.

The court found the inherent activities and pursuit of the bounty hunters an inextricable component of the justifiable needs analysis:

As a general matter, those activities [apprehending fugitives], when conducted by armed agents, pose a threat to public safety by their very nature. The risk is heightened when such persons, displacing the police, are given opportunity to engage in gunfire exchanges with armed and dangerous fugitives. Although these latter factors may not be considered dispositive, they cannot be ignored, either, as circumstantial elements to be taken into account in weighing an individual applicant's showing of justifiable need. [Id. at 26.]

Thus, in Borinsky, although not dispositive, the act of apprehending fugitives in itself is an important issue within the justifiable needs analysis.

In Borinsky, the court found "that none of the applicants herein has made a sufficiently particularized showing of justifiable need to carry a handgun." Ibid. The court noted, "the records before us establish with clarity that many of the fugitives the applicants seek are not armed and dangerous." Id. at 25. Some of the applicants had been shot at and threatened with a variety of weapons in the course of their work. Id. at 13. The other applicants had generalized fears or carried substantial cash in the course of business. Id. at 14-16.

Here, Atkins can document incidents that rise above "[g]eneralized fears for personal safety." Preis, supra, 118 N.J. at 571. The issue is whether these experiences justify a need to carry a handgun.

Borinsky compels the conclusion that Judge Conforti correctly denied appellant's application. Appellant faced no worse threats or dangers than some of the applicants in Borinsky. Three of the applicants in Borinsky "had been shot at and threatened with a variety of weapons in the course of their work." Borinsky, supra, 363 N.J. Super. at 13. Here, none of appellant's encounters are substantially more dangerous. Thus, appellant's situation cannot be factually distinguished from Borinsky, where the applicants did not make "a sufficiently particularized showing of justifiable need to carry a handgun." Id. at 26.

Appellant also contends that the State Police did not approve or reject his application within sixty days as required by N.J.S.A. 2C:58-4c. That is true. He argues, therefore, that his application was automatically approved.

Defendant's argument misapprehends the permit process. The ultimate issuer of the permit to carry a firearm is the Superior Court. N.J.S.A. 2C:58-4d. All approvals by the Superintendent under N.J.S.A. 2C:58-4c proceed to the Superior Court for ultimate review. Appellant's argument fails because he assumes that approval under N.J.S.A. 2C:58-4c, either from the Superintendent's review or from the automatic approval language, vitiates the need for the court to conduct a review. The language in N.J.S.A. 2C:58-4d is unequivocal; "If the application has been approved by the . . . superintendent . . . the applicant shall forthwith present it to the Superior Court. . . . The Court shall issue the permit. . . ." This is exactly what happened in Borinsky. There, the one applicant who was approved by the police chief nevertheless had his application reviewed by the Superior Court under N.J.S.A. 2C:58-4d. Borinsky, supra, 363 N.J. Super. at 12.

Judge Conforti correctly heard the matter on the merits. Even if the State Police delay resulted in automatic approval under N.J.S.A. 2C:58-4c, appellant was nevertheless obligated to present the approval to the Superior Court, which had independent authority to determine if plaintiff satisfied the statutory criteria for a permit. N.J.S.A. 2C:58-4d.

Affirmed.

20110110

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