On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2011 -
Before Judges Graves and Harris.
This is a gun permit case involving a retired law enforcement officer who formerly was a Deputy United States Marshall. The Law Division, without an evidentiary hearing, stripped appellant Anthony F. Pasquarelli of his firearms purchaser identification card (FPIC) and privilege to carry a handgun pursuant to N.J.S.A. 2C:39-6(L).*fn1 We reverse and remand for further proceedings.
We gather the following facts from the paper record. In October 2010, the Burlington County Prosecutor initiated proceedings -- by notice of motion -- in the Law Division to revoke the FPIC and retired law enforcement officer's identification card (N.J.S.A. 2C:39-6(L)(4)) that had been issued to Pasquarelli. The basis for this action was the Prosecutor's belief that Pasquarelli had violated N.J.S.A. 2C:58-3(c) because he "knowingly falsified his various gun permit applications." This, according the Prosecutor's application, permitted it to seek revocation relief pursuant to N.J.S.A. 2C:58-3(f), and N.J.S.A. 2C:39-6(L)(6). Under the former statute "[t]he county prosecutor of any county, the chief police officer of any municipality or any citizen may apply to [the Superior Court] at any time for the revocation of such [FPIC]." Under the latter statute "[a] judge of the Superior Court may revoke a retired officer's privilege to carry a handgun pursuant to this subsection for good cause shown on the application of any interested person."*fn2
The Prosecutor alleged that Pasquarelli had knowingly falsified answers in more than twenty gun permit applications spanning more than twenty-three years, which asked if Pasquarelli had "ever been attended, treated, or observed by a doctor or psychiatrist, or at any hospital or mental institution on an in-patient or out-patient basis for any mental or psychiatric condition." On each application Pasquarelli had responded "No," to the question about having a mental or psychiatric condition. The Prosecutor contended that it had evidence to the contrary, contained in Pasquarelli's almost-three-year-old deposition testimony given in an unrelated civil action in 2007,*fn3 which came unsolicited to the Prosecutor's attention from the attorney who represented Pasquarelli's adversary. Excerpts from the deposition indicated that Pasquarelli had been experiencing an anxiety disorder since 1981, and had sought treatment and medication therefor on several occasions.
The Law Division heard oral argument on the Prosecutor's motion and considered several documentary pieces of evidence, including excerpts from the Chang v. Pasquarelli deposition and a written report from Pasquarelli's psychiatric expert. Testimony was not offered by either side. The Prosecutor contended that Pasquarelli had sought medical treatment for his anxiety condition and was still being medicated with Valium. Pasquarelli's attorney did not dispute his client's medical history, but contended that Pasquarelli did not understand his anxiety translated into a mental or psychiatric condition. He further argued that the Valium was used as a muscle relaxant for a back injury and the applications' question about mental health issues permitted a reasonable person to answer "No." The attorney suggested that even if his client's answers over the years were incorrect, the Prosecutor's proofs still did not demonstrate that Pasquarelli had engaged in knowing falsifications.
Without inviting any live testimony from Pasquarelli or from any other witness, the court found that Pasquarelli "had this [anxiety] condition since 1981, a long history of getting help and treatment, a long history of taking prescriptions for this. But somehow he says, 'Well, I didn't know I should have filled that out.' That's what I can't accept here." The court made clear that "the issue is not that [Pasquarelli] has a condition and not that [Pasquarelli] properly sought treatment for it," but that Pasquarelli "never disclosed it on any of these application forms." Furthermore, the court held, "I think there is and I find that there is a knowing falsification here."
Accordingly, the court entered an order on February 17, 2011, revoking the FPIC and retired law enforcement officer's permit to carry a handgun. Additionally, Pasquarelli was ordered to surrender his FPIC and current retired law enforcement officer's identification card to the Mount Laurel police department and make arrangements for the orderly surrender of his firearms. This appeal followed.
A gun permit revocation proceeding is quintessentially a judicial, not an administrative, proceeding. Because it resembles an appeal from the denial of an application for a permit to purchase firearms or a permit to carry a handgun, all of the trappings of due process of law must be present. See Weston v. State, 60 N.J. 36 (1972); In re Dubov, 410 N.J. Super. 190 (App. Div. 2009). Notice, an opportunity to be heard, and the ability to present testimony are paramount.
A judicial declaration that a gun permit holder is disqualified pursuant to N.J.S.A. 2C:58-3(c) involves, by necessity, a fact-sensitive analysis. The lack of an evidentiary hearing deprived the Law Division of the ability to accurately answer the question that was essential to its conclusion: whether ...