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In Re Weapons of A.S.


February 6, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FO-19-0078-11.

Per curiam.


Submitted December 19, 2011

Before Judges Ashrafi and Fasciale.

A.S. appeals from a February 18, 2011 order pursuant to N.J.S.A. 2C:25-21d(3) for forfeiture of firearms and revocation of his firearm purchaser identification card. Because appellant was surprised at the forfeiture hearing by the grounds upon which the State sought forfeiture, we remand for further proceedings to permit him to present additional evidence of his fitness for return of his firearms and identification card.

The State's petition for forfeiture was timely filed after an unsuccessful domestic violence complaint brought by appellant's wife in July 2010. See generally In re Return of Weapons to J.W.D., 149 N.J. 108, 114-16 (1997) (the Family Part is authorized under N.J.S.A. 2C:25-21d(3) to approve the State's retention of seized weapons although a domestic violence complaint has been dismissed). The State had seized from appellant a shotgun and another firearm pursuant to N.J.S.A. 2C:25-21d(1)(b). The day after the seizure, appellant voluntarily turned over a pellet rifle as well to the County Sheriff's department. The Family Part held a domestic violence hearing on July 15, 2010, at which appellant and his wife testified. Finding that the wife's allegations of domestic violence had not been proven, the court denied a final restraining order and dismissed the wife's complaint.

At a December 2, 2010 hearing pertaining to the firearms, appellant testified that he had no criminal record and no history of violence, that the firearms were not involved in any way in his wife's allegations of domestic violence, and that he planned to move out of state and begin a new life since his wife of twenty-three years had filed for divorce on the same day as the domestic violence hearing in July 2010. The prosecutor confirmed that appellant had no criminal record and that his wife did not express fear of him. The prosecutor nevertheless insisted on a mental health evaluation based on information provided by the wife that appellant had threatened and attempted suicide in the past. The court adjourned the hearing and instructed appellant to speak to the prosecutor to learn what the State was seeking as evidence of his mental status and eligibility for return of his firearms.

The hearing resumed on January 6, 2011. The prosecutor reported that appellant had produced a letter from his psychiatrist, Viviana Galli, M.D., of Milford, Pennsylvania, stating:

This is to confirm that [A.S.] is being treated at our office since 05/03/2010 for symptoms of depression. He has been stable and his mood has been euthymic.*fn1 He has been free of any thoughts of suicide since July 2009. At this time, he poses no threats to himself or some one else.

The prosecutor complained, however, that the doctor's letter was undated.

The wife's divorce attorney also appeared at the January 6, 2011 hearing and stated her opposition to return of the firearms to appellant. The attorney accused appellant of harassing conduct toward his wife, including as recently as a few days earlier on New Year's Eve. The attorney also relayed the wife's belief that there was risk of suicide or possibly harm to her and their daughter. Appellant protested again that he was a law-abiding person, and he objected to further delay in resolution of the matter and return of his firearms. The court granted the prosecutor's request for another adjournment to investigate appellant's mental health. The court instructed the prosecutor to notify appellant by January 24, 2011, of the State's position in the dispute and any evidence the State intended to present at the adjourned hearing.

After the proceedings in court, appellant provided to the prosecutor the same letter from his psychiatrist, this time containing a date of December 6, 2010. But the prosecutor did not comply with the court's deadline for discovery. Appellant did not receive discovery from the prosecutor until January 29, 2011, just a few days before the re-scheduled hearing date.

At the hearing held on February 3, 2011, appellant protested that the late response from the State did not give him enough time to prepare, but he opted to proceed with the hearing. The prosecutor represented that the State would argue against return of the firearms and identification card both on the ground of appellant's mental unfitness, N.J.S.A. 2C:58-3c(3), and, more generally, on the ground that returning the firearms "would not be in the interest of the public health, safety or welfare," N.J.S.A. 2C:58-3c(5).

Those statutory subsections provide exceptions to the general declaration of N.J.S.A. 2C:58-3c that all law-abiding citizens have the right to possess firearms unless a specific statutory disability is shown:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

In listing disabilities, the statute states in relevant part:

No handgun purchase permit or firearms purchaser identification card shall be issued:

(3) . . . [T]o any person who has ever been confined for a mental disorder, . . . unless . . . [he] produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms . . . ;

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare[.] [Ibid.]

Relying on these statutory disabilities, the prosecutor had originally insisted on a mental health evaluation but then led appellant to believe that a dated letter from his treating psychiatrist would meet the State's demands. At the February 3, 2011 hearing, the prosecutor said the State would present the lay testimony of appellant's wife to establish his mental unfitness for return of the firearms. The prosecutor also acknowledged that the State was no longer expecting appellant to provide evidence of a mental health evaluation.

The wife testified about appellant's suicide attempt in July 2009 by means of running a lawn mower engine in a closed garage. After the State Police were called, appellant was transported to Morristown Memorial Hospital and admitted. A few months later, in January 2010, the State Police were again notified to check on appellant at his home, and he was treated at a hospital. In April 2010, appellant called his wife and said that she would have to live with her guilt "when he kills himself." As a result, she summoned the police, and he was examined at a hospital once again. Finally, on New Year's Eve of 2010, the wife received a three-minute voicemail from appellant which contained only heavy breathing. The State Police investigated and directed appellant to a hospital to be examined.

Appellant testified that he has suffered from chronic back pain since 1997, and he has also been diagnosed with depression. He is prescribed a number of medications for his pain and depression. He testified that the prescription medication Ambien has caused him to behave strangely and not to remember events, but that he has decreased his dosage of that medication. He admitted the suicide attempt in July 2009, and said it occurred while he was on heavy medication and had family problems. He described his condition at that time as a "breakdown or meltdown." After he was treated medically at Morristown Memorial Hospital, he voluntarily admitted himself to a mental health treatment program and remained at the hospital for two weeks.

As to other incidents, appellant testified that the State Police were called by his wife and checked on him on three occasions over about an eighteen month period, but that he drove himself to the hospital each time, he was examined, and he was quickly discharged without admission. He testified that the New Year's Eve incident was merely his effort to have his wife or daughter pick up a prescription for him because he was medically very sick.

Appellant testified that he had been under the care of psychiatrists, including Dr. Galli, who wrote on his behalf in response to the prosecutor's demand and attested to his stability in treatment. Finally, he testified that his firearms had always been kept safely in the home, unloaded and under lock, that he used the guns for skeet shooting and for target practice at a range, and that he had never used a firearm as a "weapon."

After hearing argument, the court granted the State's petition for forfeiture, stating its decision as follows:

[T]he State has established by a preponderance of the evidence that Mr. [S.] is unfit to possess weapons at this time. And also that he poses a threat to himself if weapons are returned to him.

In that regard he testified and admitted that he attempted suicide in July of 2009. He admitted that he received treatment for that and was confined. Under New Jersey statute 2C:58-3: "No handgun purchase, permit or firearm purchase identification card shall be issued to - under subsection 3 it includes - to any person who has ever been confined for mental disorder."

By Mr. [S.'s] admission, he has been confined for mental disorder and we don't have in the record before us, a certification of a medical doctor, physician or psychiatrist, licensed in New Jersey, that he's no longer suffering from the particular disability in such a manner that would not interfere with him or handicap him in the handling of firearms.

So for that reason, I'm going to grant the State's petition . . . .

The court cited N.J.S.A. 2C:58-3c(3) as the basis for its decision, and it also made reference to appellant posing a danger to himself because he testified that he does not always remember his actions when he takes certain medications.

Before us, appellant argues he was misled by the prosecutor into relying on Dr. Galli's letter of December 6, 2010, to satisfy the statutory requirement for a doctor's certificate. He also argues that his constitutional right to own and possess firearms was violated by the court's rulings, citing McDonald v. City of Chicago, 561 U.S. ___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), and District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). We will not address the constitutional argument because we agree that appellant, who was pro se at the hearings in the trial court, was misled into relying on the uncertified letter of Dr. Galli as it pertained to his fitness under subsection (3) of the statute.

The State acknowledges that it had the burden of proving appellant was unfit to possess firearms because of a mental disorder, or that it would not be in the interest of the public health, safety, or welfare for appellant to possess firearms.

See N.J.S.A. 2C:25-21d(3); State v. Cordoma, 372 N.J. Super. 524, 533 (App. Div. 2004); cf. In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003) (burden of proof on police chief to justify initial denial of permit to purchase a handgun), certif. denied, 179 N.J. 310 (2004). As argued by the State, the proof of appellant's unfitness was his hospitalization after the 2009 suicide attempt and the continuation of his mental disorder, namely, depression.

In its decision, the trial court made reference generally to the public interest, as provided in subsection (5) of N.J.S.A. 2C:58-3c, but the primary basis for the court's forfeiture decision was subsection (3) of the statute and the failure of appellant's psychiatric evidence to overcome evidence of his prior and continuing mental disability. On appeal, the State argues that the trial court's decision must be affirmed because appellant had been confined in a hospital for psychiatric treatment and he did not produce a certificate of a New Jersey licensed medical doctor or psychiatrist stating that he no longer suffers from a mental disorder.

The State's position on appeal is different from its position at the beginning of the February 3, 2011 forfeiture hearing. The State accepted the letter of Dr. Galli as sufficient to answer its demand for a mental health evaluation.

It had no medical or mental health expert to testify about appellant's mental disability. Instead, the State intended to rely on the lay testimony of appellant's wife about incidents that had occurred over a number of years. The hearing proceeded under the assumption that the court would make a determination based on the competing lay testimony of appellant and his wife. Although the court acted within its authority in admitting the testimony of appellant's wife on the subject of his prior behavior, the court could not rely on that testimony alone to conclude that appellant was suffering from a disqualifying mental disorder at the time of the hearing. See State v. One Marlin Rifle, 319 N.J. Super. 359, 369 (App. Div. 1999); Cordoma, supra, 372 N.J. Super. at 535-36.

Only after appellant testified did the prosecutor argue that his 2009 hospital confinement necessitated more reliable medical evidence, namely, a certificate from a New Jersey licensed doctor attesting to his mental fitness. In closing argument, the prosecutor declared surprise at learning that appellant had voluntarily admitted himself for mental health treatment following his suicide attempt. But appellant was not to blame for the State's surprise. He should not have been deprived of fair notice that the State would not accept Dr. Galli's letter as satisfying the statutory requirement.

The court adopted the State's position and based its decision on the absence of an appropriately-licensed doctor's certificate. The statute also permits "other satisfactory proof" that the appellant was "no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms." N.J.S.A. 2C:58-3c(3). The State appeared to concede that Dr. Galli's letter met the requirements of the statute. Appellant was misled into believing that the letter was an adequate substitute for a mental health evaluation and a New Jersey licensed doctor's certificate.

The court made a finding that appellant was a danger to himself without expert evidence contrary to Dr. Galli's statement that appellant did not pose a danger to himself or others. Especially because a forfeiture hearing under N.J.S.A. 2C:25-21d(3) is summary in nature and without all the formalities of a plenary trial, the court should not have rejected Dr. Galli's conclusion in the circumstances presented without affording appellant the opportunity to produce additional evidence of his mental fitness. Over appellant's earlier objections, the court had granted two adjournments to the State to prepare its case. It should also have granted a continuance of the hearing to appellant to seek more evidence of his mental fitness.

The unusual procedural circumstances here required fair notice to appellant that the court would require a certificate in conformity with N.J.S.A. 2C:58-3c(3). We reverse and remand to the Family Part to reopen the hearing and permit appellant to present evidence of his fitness to possess his firearms.

We do not reach any conclusion as to whether the firearms and identification card should be returned or forfeited. The trial court shall reconsider its decision with the aid of any additional evidence offered by appellant and as otherwise the court permits in its discretion.

Remanded for proceedings in conformity with our opinion. We do not retain jurisdiction.

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