Opinion
DOCKET NO. A-4538-13T4
06-18-2015
IN THE MATTER OF THE DENIAL OF THE APPLICATION FOR A FIREARMS PURCHASER'S IDENTIFICATION CARD AND FOUR PERMITS TO PURCHASE A HANDGUN BY J.H.
Kenneth D. Aita, attorney for appellant J.H. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Matthew Lynch, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Burlington County. Kenneth D. Aita, attorney for appellant J.H. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Matthew Lynch, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Appellant, J.H., appeals from the trial court's order of April 23, 2014, affirming the police department's denial of his application for a Firearms Purchaser Identification Card (FPIC) and four permits to purchase handguns. We affirm for substantially the same reasons set forth by Judge Thomas J. Kelly in his well-reasoned, oral decision of the same date.
We use defendant's initials because this case concerns domestic violence, and to protect the privacy of defendant's child.
J.H. and his oldest son, thirteen years old, participate in skeet shooting, trap shooting, and range shooting; they enjoy target practice at a local shooting range. J.H. owns some antiquated, but usable rifles dating from the 1940s to the 1950s. J.H. applied for an FPIC and various permits to purchase more modern firearms to use in target practice with his son. The Chief of Police (Chief), denied his application, finding that it would not be in the interest of the public health, safety, and welfare. J.H. subsequently filed an appeal to the Superior Court, Law Division. After an evidentiary hearing, Judge Kelly denied J.H.'s application.
In denying J.H.'s application, both the Chief and Judge Kelly reasoned that J.H. and his two children reside with J.H.'s wife, who is disqualified from possessing firearms. Specifically, the judge found that J.H.'s wife's background raised serious concerns about her living in a house with firearms, even if owned by her husband, who states he will keep them locked up and out of her control.
At the evidentiary hearing on J.H.'s application, it was determined that his wife had been sentenced on June 16, 2000, to probation for possession of a controlled dangerous substance (CDS) with the intent to distribute. She had also been sentenced on December 9, 2005, to probation for possession of CDS. These convictions bar J.H.'s wife from possessing firearms. N.J.S.A. 2C:58-3c(1).
More recently, in December 2011, police were called to the family residence by J.H. because his wife had hit him. At that time, J.H. told officers that his wife was drinking a lot and needed help. Additionally, in 2013, J.H.'s wife was convicted of driving while intoxicated after mixing alcohol and Ambien. She was stopped by the police twice on the same day. During one of those encounters, officers found a bayonet inside her vehicle. At the hearing J.H. admitted that the bayonet was his, and that he had left it in the car after taking it to a trade show.
J.H. testified that his wife had received help and was no longer drinking. Judge Kelly, however, noted that these were recent episodes and that persons with alcohol and drug problems are frequently subject to relapse. Judge Kelly found that putting additional weapons in a home where J.H.'s wife resided was against the public health, safety, and welfare, outweighing J.H.'s personal interests. While driving the car under the influence, J.H.'s wife had moved his bayonet, which he testified he had left in the trunk of the car, into the passenger compartment of the car. The judge found that putting more weapons in the home increased the chances of access to those guns by J.H.'s wife.
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).
An individual's Second Amendment right to bear arms, U.S. Const. amend. II, is "subject to reasonable limitations." Crespo v. Crespo, 201 N.J. 207, 209-10 (2010). To purchase a handgun in New Jersey, a person must apply for a FPIC and a permit. N.J.S.A. 2C:58-3. A "person of good character and good repute in the community in which he lives . . ." must be issued an FPIC and permit unless, among other reasons not relevant for purposes of this appeal, "issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5); N.J.A.C. 13:54-1.5(a)(5).
The chief of police of the municipality where the applicant resides makes the initial decision of whether to grant a FPIC application. N.J.S.A. 2C:58-3(d). In making the initial decision, it is the police chief's duty to "investigate" an application for an FPIC and permit and grant it "unless good cause for the denial thereof appears." N.J.S.A. 2C:58-3(f). "In performing his administrative function the chief of police proceeds informally, gathering the information upon which his decision is then based." Weston v. State, 60 N.J. 36, 43 (1972).
Thereafter, a "person aggrieved by the denial of a permit or identification card may request a hearing" in the Law Division. N.J.S.A. 2C:58-3(d); N.J.A.C. 13:54-1.12(a). Judicial review of the chief of police's decision is de novo, but the court "should give appropriate consideration to the [c]hief's investigative experience and to any expertise he appears to have developed in administering the statute." Weston, supra, 60 N.J. at 46. Judicial "review must be practical as well as responsible to the public." In re Clark, 257 N.J. Super. 152, 154 (Law Div. 1992).
In Clark, supra, the trial court held that an application to purchase handguns could be denied because the applicant's spouse, with whom she resided, was disqualified from owning a gun for a prior burglary conviction. Id. at 153-54. In that case, there was a substantial likelihood that the applicant's spouse would have access to her handguns because the applicant testified that she intended to attend target practice with her husband, and keep the guns in the marital residence. Id. at 154.
The facts of the present matter differ from those in Clark in that the applicant testified his wife had no interest in guns and he would keep them locked away from her, although in the residence. However, the facts in this case suggest an even higher risk than existed in Clark, where the spouse solely had a prior burglary conviction. Here, the spouse had two convictions relating to CDS, and an alcohol problem that had led to domestic violence.
We affirm for substantially the reasons set forth by Judge Kelly. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION