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In the Matter of the Application By Kenneth Friedman For A Permit To

December 6, 2012

IN THE MATTER OF THE APPLICATION BY KENNETH FRIEDMAN FOR A PERMIT TO CARRY A HANDGUN.


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 26, 2012

Before Judges A. A. Rodriguez and Ashrafi.

Appellant Kenneth Friedman appeals from the August 10, 2011 order of the Law Division denying his application for a permit to carry a concealed handgun in New Jersey. He requested a limited permit authorizing him to carry a handgun as he drives from his home or office in Bergen County, New Jersey, to his job in New York City, where City authorities have previously issued to him a permit to carry a handgun.

In accordance with binding precedent, we affirm the Law Division's order denying the application. At the same time, we recognize the tension between two recent United States Supreme Court decisions interpreting the Second Amendment to the United States Constitution, McDonald v. City of Chicago, ___ U.S. ___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010); District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and the State precedents we apply in deciding the question on appeal, Burton v. Sills, 53 N.J. 86, 101 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969); Siccardi v. State, 59 N.J. 545 (1971); In re Preis, 118 N.J. 564, 566 (1990). Appellant has not made a constitutional argument on this appeal, and the recent United States Supreme Court decisions do not address directly state gun control laws pertaining to the carrying of concealed weapons. Therefore, we do not analyze the Second Amendment in this appeal, except in recognition of the recent decisions and their potential effect on our State gun control precedents.

The facts relevant to this appeal are essentially undisputed. Appellant is part-owner of a company that owns and operates residential rental buildings in New York City and in New Jersey. As property manager, appellant is responsible for twenty-two rental buildings on 109th Street and fourteen buildings on 49th Street in Manhattan. The neighborhoods at these locations are improving but are still plagued by some criminal activity. Since purchasing the buildings, appellant's company has hired a security firm and installed numerous surveillance cameras and other measures to ensure the safety of tenants and employees. Still, the nature of appellant's job creates potential risks to his personal safety.

Appellant spends more than ten hours per day, Monday through Friday, at his job in New York City. He must also be available on call at other times for quick travel to the City. He works frequently "on the street" and otherwise out of a small basement office in one of the buildings on 109th Street. His duties include responding to tenants' requests, collecting rent, initiating evictions, and investigating violations of lease conditions, prominent among which are use of the apartments by unauthorized persons. Because of the potential threat to his safety in carrying out these duties, appellant received in 2007 an unrestricted permit from New York City authorities to carry a concealed firearm on his person.

Appellant lives with his family in Bergen County, New Jersey. At times, he works from his company's New Jersey office located in Englewood Cliffs. Appellant holds a firearms identification card in New Jersey and lawfully owns guns. He keeps his guns in his home in locked cabinets. He has undergone proper training for the use of firearms and does not have any of the statutory disabilities that would prevent issuance of a permit. He has never had any inappropriate incidents involving his firearms.

Without a New Jersey permit to carry a concealed firearm, appellant must transport a handgun unloaded and in a locked case in the trunk of his car while he drives the short distance from his home or office over the George Washington Bridge into Manhattan. After he arrives in New York City, he must take his gun case from the trunk to a private place, remove the gun from the case, load it, and secure it on his person. On the return trip home, he must unload his gun, lock it in its case, and return it to the trunk of his car before he crosses the border into New Jersey. Sometimes, he performs these tasks in the bathroom of a parking garage. He contends the required routine for arming and disarming himself creates risks to his safety that would not be present if he could carry a loaded gun on his person from his home or office in New Jersey directly to his job location in New York.

He applied to the police chief in his home municipality for a permit to carry a concealed firearm in accordance with N.J.S.A. 2C:58-4. After the police chief denied his application, he applied to the Law Division for the permit in accordance with the same statute.

At a hearing in the Law Division, the only witnesses were appellant and a former New York City police officer who now provides security services for appellant's company. Appellant testified that he had recently been threatened several times by disgruntled tenants in the rental units he manages. He had obtained orders of protection against two of those tenants, and one of them was facing criminal charges for making the threats. Yet a third tenant had made a veiled remark about his ability to find appellant's family if his own family were to be evicted from one of the apartments. Appellant admitted, however, that no one had attempted to carry out a threat, and that nothing had yet occurred in New Jersey pertaining to the threats against his safety.

The security officer testified that appellant's taking a gun case into a private place to arm himself could be misinterpreted by tenants and other persons as his carrying of cash, and it subjects him to "a moderate risk" of robbery. In addition, the security officer testified about the propensity of certain tenants to vacate apartments and turn them over for occupancy to unauthorized persons, who may engage in criminal or violent conduct.

The Law Division cited Siccardi, supra, 59 N.J. 545, and denied the application on the ground that appellant had not shown an "urgent necessity for carrying guns for self-protection" in New Jersey. The court also cited several other New Jersey precedents in which our State Supreme Court had held permits to carry concealed firearms should be denied although the applicants faced risks as serious as those shown by appellant in this case. See Preis, supra, 118 N.J. 564 (former police officers working as private security guards); Reilly v. State, 59 N.J. 559 (1971) (doctors working at urban hospitals or making house calls while carrying narcotic drugs); In re Application of "X", 59 N.J. 533 (1971) (diamond dealer who carried loose diamonds on his ...


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