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Daniel J. Piszczatoski; John M. Drake; Gregory C. Gallaher; Lenny v. the Hon. Rudolph A. Filko

January 12, 2012

DANIEL J. PISZCZATOSKI; JOHN M. DRAKE; GREGORY C. GALLAHER; LENNY S. SALERNO; FINLEY FENTON; SECOND AMENDMENT FOUNDATION, INC.; AND ASSOCIATION OF NEW JERSEY RIFLE &
PISTOL CLUBS, INC., PLAINTIFFS,
v.
THE HON. RUDOLPH A. FILKO, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE SUPERIOR COURT OF PASSAIC COUNTY; THE HON. EDWARD A. JEREJIAN, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE SUPERIOR COURT OF BERGEN COUNTY; THE HON. THOMAS A. MANAHAN, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE SUPERIOR COURT OF MORRIS COUNTY; COL. RICK FUENTES, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE NEW JERSEY STATE POLICE; CHIEF ROBERT JONES, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE HAMMONTON, NEW JERSEY POLICE DEPARTMENT; CHIEF RICHARD COOK, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE MONTVILLE, NEW JERSEY POLICE DEPARTMENT; AND PAULA T. DOW, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW JERSEY, : DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

OPINION

This case presents a facial challenge to the constitutionality of the New Jersey law governing permits to carry handguns. The challenged provisions in N.J. Stat. § 2C:58-4 and the attendant regulations (the "Handgun Permit Law") require permit applicants to demonstrate a "justifiable need to carry a handgun," first to a police official and then to a Superior Court judge. N.J. Stat. Ann. § 2C:58-4(c)--(d) (2011).

The plaintiffs, five individuals denied handgun permits and two issue advocacy organizations, assert that the Handgun Permit Law is facially unconstitutional because it encroaches upon an alleged fundamental right to carry operable handguns for self-defense under the Second Amendment of the United States Constitution. Compl. ¶ 91. The plaintiffs allege that the Handgun Permit Law vests "uncontrolled discretion" in state officials to deny permits, which they challenge as a prior restraint. Id. ¶¶ 101--04. The plaintiffs further allege that requiring an applicant to demonstrate a "justifiable need" for self-protection is an impermissible burden on the asserted Second Amendment right. Id. ¶¶ 107--09.

The plaintiffs move for summary judgment seeking declaratory and injunctive relief. The defendants oppose this motion and cross-move to dismiss the case for failure to state a claim. Oral argument was heard on both motions.

At the outset, it is noted to any reader of this Opinion that this Court shall be careful -- most careful -- to ascertain the reach of the Second Amendment right that the plaintiffs advance. That privilege is unique among all other constitutional rights to the individual because it permits the user of a firearm to cause serious personal injury -- including the ultimate injury, death -- to other individuals, rightly or wrongly. In the protection of oneself and one's family in the home, it is a right use.

In the deliberate or inadvertent use under other circumstances, it may well be a wrong use. A person wrongly killed cannot be compensated by resurrection.

The Court finds that the Handgun Permit Law is not facially unconstitutional. The Handgun Permit Law does not on its face burden protected conduct because the Second Amendment does not include a general right to carry handguns outside the home. Alternatively, if the scope of the Second Amendment were interpreted to include a right to carry handguns outside the home for self-defense, the Court finds that the challenged provisions do not on their face unconstitutionally burden the protected conduct. The prior restraint doctrine does not apply in the Second Amendment context and would be inapposite because the statutory scheme does not vest uncontrolled discretion in state officials to deny permits. The justifiable need requirement survives intermediate scrutiny because it is sufficiently tailored to governmental interests in regulating the possession of firearms outside the home. The Court denies the plaintiffs' motion for summary judgment and grants the defendants' motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Using a "careful grid of regulatory provisions," New Jersey closely regulates the possession and use of firearms within the state. In re Preis, 573 A.2d 148, 150 (N.J. 1990). The possession of firearms is a criminal offense unless a specific statutory exemption applies. N.J. Stat. Ann. § 2C:39-5 (2011). These exemptions generally allow eligible individuals to carry firearms for specific purposes, such as hunting or target practice. Id. § 2C:39-6(f)(1)--(2). The exemptions "draw careful lines between permission to possess a gun in one's home or place of business and permission to carry a gun." In re Preis, 573 A.2d at 150 (citations omitted). A person may generally keep or carry firearms "about his place of business, residence, premises or other land owned or possessed by him." N.J. Stat. Ann. § 2C:39-6(e) (2011). This exemption also allows for the secure transportation of unloaded firearms between a person's dwelling and place of business. Id. Outside one's home, property, or place of business, the exemptions allowing possession and use of firearms are otherwise more restricted.

The plaintiffs challenge only the limited exemption that permits a person to carry a handgun for self-defense outside his or her home, property, or place of business. Unless a specific statutory exemption otherwise applies, a person may legally carry a handgun for self-defense only if that person first applies for and obtains the necessary permit. Id. § 2C:39-5(b). To qualify for a permit under the Handgun Permit Law, an applicant must demonstrate that he or she (1) is a person of good character who is not otherwise disqualified as a result of any statutory disabilities, (2) is thoroughly familiar with the safe handling and use of handguns, and (3) "has a justifiable need to carry a handgun." Id. § 2C:58-4(d).

New Jersey courts use a "core substantive standard" to determine whether there is "justifiable need" for a private citizen to be issued a permit to carry a handgun. In re Preis, 573 A.2d at 151--52. This standard requires "an urgent necessity for self-protection" based on "specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means." Id. at 152 (citing Siccardi v. State, 284 A.2d 533, 540 (N.J. 1971)). Neither "generalized fears for personal safety" nor the "need to protect property alone" satisfy the standard. Id. New Jersey's permit to carry regulation reflects this standard, requiring applicants to submit written certification of justifiable need which details the 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. Where possible the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of such incidents to the appropriate law enforcement agencies . . . .

N.J. Admin. Code § 13:54-2.4(d)(1) (2011).

The application process for handgun permits involves several tiers of review. Permit applications are first presented for investigation and preliminary approval to a designated police official, either the chief of police of the municipality in which the applicant resides or, under certain circumstances, the state police superintendent. N.J. Stat. Ann. § 2C:58-4(c) (2011). If the police official denies the initial application, then the applicant may request a hearing before a judge on the New Jersey Superior Court. Id. § 2C:58-4(e). If the police official approves the initial application, then the applicant presents his or her application to a Superior Court judge for final approval and issuance. Id. § 2C:58-4(d). If the judge is satisfied that the applicant meets the requirements, the court must approve the application and issue the permit. Id. Any determination that the applicant does not meet the permit requirements is subject to full appellate review. Id. § 2C:58-4(e). See In re Preis, 573 A.2d at 150; In re Application of Borinsky, 830 A.2d 507, 508 (N.J. Super. Ct. App. Div. 2003).

On November 22, 2010, the plaintiffs filed the complaint in the current action as a facial constitutional challenge to the Handgun Permit Law. Individual plaintiffs Daniel J. Piszczatoski, John M. Drake, Gregory C. Gallaher, Lenny S. Salerno, and Finley Fenton are each a New Jersey resident who asserts that his application for a handgun permit was denied under the challenged law solely on the grounds that he lacked a justifiable need to carry a handgun. Compl. ¶¶ 30--82. Jeffrey M. Muller was originally the lead plaintiff in this case, but he was granted a permit while this case was pending. Mots. Hr'g Tr. 3, Oct. 27, 2011. Muller's claims are now moot and were dismissed by stipulation of the parties on November 1, 2011. Stipulation of Dismissal & Substitution ¶ 1. Organizational plaintiffs Second Amendment Foundation, Inc. ("SAF") and Association of New Jersey Rifle & Pistol Clubs, Inc. ("ANJRPC") are non-profit advocacy groups that bring this suit on behalf of their membership, which includes individuals who have been denied permits or who have not applied for permits because they failed to meet the justifiable need requirement.*fn1 Compl. ¶¶ 83--89; Pls.' Reply Br. 6--7.

Defendants are state and local officials sued in their official capacities based on their responsibility for approving applications for permits to carry handguns or otherwise executing and administering New Jersey handgun laws and regulations. New Jersey Superior Court Judges Edward A. Jerejian, Rudolph A. Filko, and Thomas A. Manahan are sued based on their designated roles in approving and issuing permits in their respective counties. Compl. ¶¶ 18--22. Superior Court Judge Philip J. Maenza was dismissed as a party on November 1, 2011 after plaintiff Jeffrey Muller's claims became moot. Stipulation of Dismissal & Substitution ¶ 2. Defendants also include police officials responsible for investigating and approving permit applications, namely Col. Rick Fuentes as Superintendent of the New Jersey State Police and municipal chiefs of police Robert Jones in Hammonton, New Jersey and Richard Cook in Montville, New Jersey. Compl. ¶¶ 23--25; Stipulation of Dismissal & Substitution ¶ 3. Defendant Attorney General Paula T. Dow is sued in her role as Attorney General of the State of New Jersey. Compl. ¶ 26.

STANDARD OF REVIEW

The plaintiffs move for summary judgment, which the defendants oppose. Summary judgment is appropriate where the moving party establishes that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). All parties agree that this lawsuit presents purely legal issues and ask the Court to resolve the suit based solely on the motions submitted. Letter from Pls. and Defs., Dec. 8, 2010, ECF No. 9.

The defendants cross-move under Federal Rule of Civil Procedure 12(b)(6) for dismissal of the complaint for failure to state a claim. To withstand a motion to dismiss, a complaint must permit the "reasonable inference that the defendant is liable for the conduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). The court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 306 (3d Cir. 2007).

As said, this suit presents a facial challenge to New Jersey's handgun permit regulations. To prevail, the plaintiffs must establish that "no set of circumstances exists under which [the Handgun Permit Law] would be valid, i.e., that the law is unconstitutional in all of its applications." United States v. Barton, 633 F.3d 168, 172 (3rd Cir. 2011) (citation omitted). The Third Circuit does not "recognize an 'overbreadth' doctrine" in the context of the Second Amendment. Id. at 172 n.3. This doctrine allows plaintiffs to prevail on a facial challenge by showing that the statute operates unconstitutionally under some particular sets of circumstances rather than in every circumstance. Although recognized in the limited context of the First Amendment, the Supreme Court has explained that this doctrine should be applied extremely sparingly and only in light of particular First Amendment concerns. See New York v. Ferber, 458 U.S. 747, 766--73 (1982).

DISCUSSION

Modern Second Amendment doctrine is a relatively new frontier. In its 2008 decision, District of Columbia v. Heller, the Supreme Court explicitly recognized for the first time that the Second Amendment confers an individual right to keep and bear arms. 554 U.S. 570, 595 (2008). The Court held that a District of Columbia law which forbade the individual possession of useable handguns in the home violated the Second Amendment. Id. Justice Scalia, writing for the majority, held that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635. At the same time, the Justice wrote that the Second Amendment does not confer "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626. The Court did not "undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment," id., and also "declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions." Id. at 634. Instead the Court held that a total ban on handgun possession in the home is unconstitutional under "any of the standards of scrutiny that we have applied to enumerated constitutional rights . . . ." Id. at 628. Later in McDonald v. City of Chicago, the Supreme Court determined that the Second Amendment applies to state as well as federal laws through the Fourteenth Amendment, but provided little additional guidance on how it should be applied. 130 S.Ct. 3020, 3026 (2010); see United States v. Marzzarella, 614 F.3d 85, 88 n.3 (3d Cir. 2010) ("McDonald dealt primarily with the incorporation of the Second Amendment against the states and does not alter our analysis of the scope of the right to bear arms.") (internal citation omitted).

In the wake ofHeller and McDonald, lower courts have endeavoured to resolve the uncertainty left by these decisions by (1) outlining the appropriate scope of the individual Second Amendment rights defined in Heller and (2) determining the appropriate standard of scrutiny for federal, state, and local laws that may burden these rights. See United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir.), cert denied, No. 10-11212, 2011 WL 2516854 (Nov. 28, 2011). The Third Circuit has marked "a two-pronged approach" to Second Amendment challenges that addresses these issues sequentially. Marzzarella, 614 F.3d at 89. First, the Court considers "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny." Id. (internal citation omitted). Similar two-step approaches have been adopted in other circuits as well. See Heller v. District of Columbia, No. 10-7036, 2011 WL 4551558, at *5 (D.C. Cir. Oct. 4, 2011) (hereinafter "Heller II"); Ezell v. City of Chicago, 651 F.3d 684, 702--04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800--01 (10th Cir. 2010).

I.The Handgun Permit Law does not burden conduct protected by the Second Amendment.

The first question is whether the challenged law "regulates conduct that falls within the scope of the Second Amendment." Marzzarella, 614 F.3d at 89. To state a valid facial challenge, the plaintiffs must demonstrate that the challenged law is invalid as to every set of circumstances to which applied. Barton, 633 F.3d at 172. To do this, the plaintiffs must establish that the scope of the Second Amendment extends to all applications of the challenged law. See id. In other words, the Second Amendment must protect the right to carry a handgun for self-defense wherever the Handgun Permit Law requires applicants to apply for a permit and demonstrate a justifiable need for self-protection. This Court finds that the challenged law is not facially unconstitutional because it can be applied without creating a burden on protected conduct. The Second Amendment does not protect an absolute right to carry a handgun for self-defense outside the home, even if the Second Amendment may protect a narrower right to do so for particular purposes under certain circumstances.

The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. From an extensive textual and historical analysis, Heller determined that this language was adopted to protect a pre-existing individual right to possess and carry weapons in certain circumstances. Heller, 554 U.S. at 592--95. Because the specific question before the Supreme Court was whether the District of Columbia's prohibition of keeping useable handguns in the home violated the Second Amendment, Heller clearly held that the Second Amendment protects at its core an individual right to possess and use a handgun for self-defense within the home. Id. at 635 ("[W]hatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."). While Heller did not establish a right to carry a handgun for self-defense outside the home, the majority opinion did not explicitly foreclose later extension of the core right.

Because New Jersey's Handgun Permit Law does not affect one's ability to legally carry a handgun in one's home, private property, or place of business, this case requires that this Court address the extent to which the Second Amendment protects a right for individuals to carry handguns outside the home. As the Fourth Circuit has explained, a "dilemma faced by lower courts in the post-Heller world" has been "how far to push Heller beyond its undisputed core holding." Masciandaro, 638 F.3d at 475. Since neither the Supreme Court nor the Third Circuit has decided the extent to which the Second Amendment applies outside the home, this Court looks at the question through the lens of the reasoning of Heller and McDonald as applied by the Third Circuit and, where relevant, other circuits.

The parties here advance competing interpretations of the scope of the individual Second Amendment right to keep and bear arms outside the home. Based on a broad reading of the majority opinion in Heller, the plaintiffs argue that the Second Amendment protects a "general right to carry handguns, in public, for self-defense" and that protected conduct is necessarily burdened by the challenged law. Pls.' Br. 15. The defendants reply that the conduct regulated by the challenged law is outside the scope of the Second Amendment because Heller and McDonald recognized only the "right to possess a handgun in the home for the purpose of self-defense" and that there is no basis for extending this right beyond the home. Defs.' Br. 13--14. The plaintiffs counter that Heller "plainly recognize[s] that the right to keep and bear arms is not confined to the home, and that the home is merely a place where the right is at its zenith." Pls.' Reply Br. 17.

A.Heller recognized only an individual right to carry handguns for self-defense in the home.

The focus of the plaintiffs' argument is a textual emphasis on Heller's interpretation of the language of the Second Amendment's protection of the individual right to "bear" arms as a right to "carry" firearms in non-sensitive places. The plaintiffs insist that Heller "necessarily ruled -- held -- that the Second Amendment protects an enumerated right to carry guns. This right does not hang on whether one is located in his or her home." Id. at 9. Furthermore, they argue that "a key aspect of the Court's ruling was its conclusion that the Second Amendment's right to 'bear Arms' is not an idiomatic reference, but is instead a general right to carry firearms." Id. at 12.

Even though Heller uses some broad language in recognizing an individual right to bear arms, closer inspection reveals that plaintiffs' argument ultimately misses the mark. Heller's recognition of the right to "bear" arms as a right to "carry" does not inexorably lead to the conclusion that there is a general right to carry arms outside the home. Instead, this definition simply serves to emphasize the nature of the right as an individual right to carry "for a particular purpose -- confrontation." Heller, 554 U.S. at 584. Heller found that the individual right to carry a firearm for confrontation was obviously not an "unlimited" right to carry "for any sort of confrontation," but included a right to carry a handgun "for self-defense in the home." Id. at 595, 636. The District of Columbia could not require that a handgun be kept inoperable in the home and could not "prevent a handgun from being moved throughout one's house." Id. at 584 (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).

The language of Justice Scalia's majority opinion deliberately limited the scope of the right recognized to the home. The Southern District of New York recently noted that Heller's focus on the right to carry a handgun "for the purpose of 'self-defense in the home' permeates the Court's decision and forms the basis for its holding-which, despite the Court's broad analysis of the Second Amendment's text and historical underpinnings, is actually quite narrow." Kachalsky v. Cacace, No. 10-CV-5413, 2011 WL 3962550, at *19 (S.D.N.Y. Sept. 2, 2011). Judge Easterbrook writing en banc for the Seventh Circuit explained that Heller's language "warns readers not to treat Heller as containing broader holdings than ...


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