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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 person). The Law Division explained that appellant had not shown that "his life is in danger in New Jersey," and he had not attempted to find a safer location to arm himself in New York City.

On appeal before us, appellant argues that the Law Division misapplied the law to the undisputed facts he proved at the hearing.

In Burton, supra, 53 N.J. 86, our State Supreme Court rejected a federal constitutional challenge to New Jersey's Gun Control Law enacted in 1966. Discussing the history of the Second Amendment, the Court concluded that the amendment protects only a collective right to keep and bear arms related to an organized state militia, not an individual right for purposes of self-protection. Id. at 95-101. In addition, the Court held that the Second Amendment does not apply to the states but only to "congressional action." Id. at 98. The Court noted that our State constitution contains no express provision like the Second Amendment preserving a person's right to keep and bear arms. Id. at 101. Considering other constitutional provisions, the Court held that the State's police power authorizes the Legislature to regulate firearms, in particular, its power to protect the general welfare. Id. at 102; see also State v. Angelo, 3 N.J. Misc. 1014, 1015 (Sup. Ct. 1925) (upholding State's power to prohibit possession of a concealed weapon).

The United States Supreme Court has now rejected both holdings of Burton pertaining to the Second Amendment. In Heller, supra, 554 U.S. at 592, 595-600, 128 S. Ct. at 2797, 2799-2802, 171 L. Ed. 2d at 657, 659-662, the Court held that the Second Amendment protects an individual's right to keep and bear arms without regard to participation in an organized or other militia. In McDonald, supra, ___ U.S. at ___, 130 S. Ct. at 3026, 177 L. Ed. 2d at 903, the Court held that the Second Amendment applies to state gun control laws.*fn1 Consequently, our State restrictions on a person's right to keep and bear arms must not run afoul of the Second Amendment.

Both Heller, supra, 554 U.S. at 635, 128 S. Ct. at 2821-22, 171 L. Ed. 2d at 683-84, and McDonald, supra, ___ U.S. at ___, 130 S. Ct. at 3026-27, 177 L. Ed. 2d at 903-04, addressed possession of firearms in the home for purposes of protection and self-defense. Neither discussed directly laws pertaining to carrying of concealed firearms outside the home. In fact, the Court in Heller, supra, 554 U.S. at 626, 128 S. Ct. at 2816, 171 L. Ed. 2d at 678, stated: "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." The Court labeled such prohibitions "presumptively lawful regulatory measures." Id. at 627 n.26, 128 S. Ct. at 2817 n.26, 171 L. Ed. 2d at 678 n.26.

In New Jersey, the statutory provision that controls issuance of permits for carrying concealed firearms is N.J.S.A. 2C:58-4. The statute requires that the applicant first submit a request for a permit to the chief of police of the applicant's home municipality or to the Superintendent of the State Police, N.J.S.A. 2C:58-4c, but it places ultimate responsibility on Superior Court judges to determine whether a permit should be issued. The parts of the statute most relevant to the issues in this appeal state:

d. Issuance by Superior Court . . . . 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 . . . . 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 section 2C:58-3c,*fn2 that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.

e. Appeals from denial of applications. Any person aggrieved by the denial by the chief police officer or the superintendent of approval for a permit to carry a handgun may request a hearing in the Superior Court [N.J.S.A. 2C:58-4d, -4e (emphasis added).]

Pre-dating this statutory framework, in Siccardi, supra, 59 N.J. 545, the New Jersey Supreme Court applied the statute then in effect, which required proof that "the applicant has never been convicted of a crime, is a person of good character, and is not subject to any of the disabilities set forth in section 2A:151-33, and of the need of the applicant to carry a pistol or revolver . . . ." (emphasis added).*fn3 The Court held that an owner of a movie theater did not meet the statutory requirement of "need" to carry a gun although on a nightly basis he carried cash receipts to deposit at a bank. Siccardi, supra, 59 N.J. at 557-58. The Court referred to policy guidelines issued by the State's Assignment Judges*fn4 limiting issuance of permits to persons employed in security work and "to such other limited personnel who can establish an urgent necessity for carrying guns for self-protection." Id. at 557 (emphasis added). The Court said: "One whose life is in real danger, as evidenced by serious threats or earlier attacks, may perhaps qualify within the latter category but one whose concern is with the safety of his property, protectible by other means, clearly may not so qualify." Ibid.

After N.J.S.A. 2C:58-4 was enacted in 1979, using the phrase "justifiable need," the New Jersey Supreme Court held again that a permit to carry a handgun should only be issued to "those who can establish an urgent necessity for protection of self or others - as for example, in the case of one whose life is in danger as evidenced by serious threats or earlier attacks." Preis, supra, 118 N.J. at 566 (emphasis added). The Court said further: "Generalized fears for personal safety are inadequate, and a need to protect property alone does not suffice." Id. at 571 (citing Siccardi, supra, 59 N.J. at 557-58).

The holdings of the New Jersey Supreme Court are binding upon us, and we must follow them unless directed otherwise by that Court or the United State Supreme Court. See State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009); State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976). Whether Heller and McDonald warrant re-examination of the State precedents we have cited may be a question for our Supreme Court to consider in an appropriate case. We review the facts of this appeal in accordance with our State precedents and appellant's arguments, which are based exclusively on our State law.

N.J.S.A. 2C:58-4d permits issuance of a limited permit to carry a concealed firearm in New Jersey. The statute includes the following provision: "The court may at its discretion issue a limited-type permit which would restrict the applicant as to the types of handguns he may carry and where and for what purposes such handguns may be carried." Ibid.

Although appellant established a viable reason for carrying a concealed handgun in New Jersey between his home and his crossing of the George Washington Bridge on his way to and from his job in New York City, we agree with the Law Division that appellant did not prove "an urgent necessity" for such a permit in accordance with the prior case law. The facts of the New Jersey cases we have cited included dangers similar to those described by appellant, and the New Jersey Supreme Court has held that such dangers do not warrant issuance of a permit to carry a concealed firearm.

In addition, appellant did not prove "an urgent necessity" because alternatives appear to be available to avoid the risks associated with arming himself at locations that may not be entirely secure. Appellant testified about his close association with a local police precinct in New York City, and the Law Division also suggested the possibility of appellant's company obtaining a more secure office location than the basement of one of the rental buildings.

"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963) (internal quotation marks omitted)). Appellant has not met that standard for reversal of the Law Division's decision denying him a permit to carry a concealed firearm.

Affirmed.


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