Author Archives: jefhenningeresq

Another permit approved

Client applied for two permits a short time after getting two other permits approve.  This time, the police made him uneasy so he found my blog  and gave me a call.  I gave some time but after a few weeks it  became clear that things were getting out of control.  For example, the officer working on the permit initially told me that he was just waiting on the mental health check.  However, over the next few weeks, many other things were done and other questions were raised.  Thus, it seemed like he was looking for a way to deny this.

If that wasn’t bad enough, this officer now claimed that my client was calling him four times a day and that the officer hadn’t called him at all.  However, my client didn’t call him and this officer is the one that called him several times.  I heard the voicemails myself.  Needless to say, this was really weird so I sent the Chief a rather stern letter.  He called me back in a few minutes and to make a long story short, the permits were approved.

Bothering the police is rarely a good idea

Sometimes I wonder about people that call my office about gun permits.  In a perfect world, most people wouldn’t need an attorney to get a gun permit.  However, as has been discuss many times on this blog, getting an attorney is often helpful.  Another good example called my office today.  Client was denied a purchase permit for a minor criminal matter from several years ago.  He did not have an attorney.  My clients with criminal matters have been approved.

Of course, even those without any convictions or other issues have been screwed over by our system.  But why are some people in such a crazy rush to get a permit?  As I indicated in a previous post, 30 days is not 30 days.  I’ve had some clients bother the police so much that it has actually casued problems with their applications.  Thus, my advice is to calm down.  Don”t take any garbage from the police, but don’t bother them either.  Find a good balance.

NJ Supreme Court could allow towns to restrict gun sales

What is wrong with this state?  The New Jersey Supreme Court heard oral argument today on whether Jersey City’s can limit handgun purchases to one per month.  The main argument is really the same as the one advanced with regard to a bill that died a few months ago in the State Senate.  That is, restricting gun sales to one per month will cut down on straw buyers who buy the guns for others who will use them to commit criminal activity.  While this sounds good, the  problem is there is no data to back it up.  Let’s break this down.

First, I can hardly think of any cases of straw buyers.  Do they exist?  Of course.  However, I would bet that a study would show you that  almost all of illegal guns in NJ are stolen or from out of state and not straw buyers.  I know that from my own practice as a criminal defense attorney.  Need more proof? 

Second, you have to apply for a permit in your town and the police will be able to quickly figure out how many permits you applied for.  So, this straw buyer would find it quite difficult to stay anonymous.  This buyer would then have to report all of these guns missing.  Wouldn’t that be a little odd that someone would buy many handguns in a short amount of time and then have them all stolen?  Or the buyer could not report them stolen only for the guns to turn up in a crime.  Then, the police would have a lot of questions for the buyer with the first one being, why didn’t you report that one stolen?  The next one would be, where are the rest?  Oh, they are all stolen too and you didn’t report that either?  As you can see, this would be very, very tough to pull off.  I hope someone makes this argument.

Third, as anyone who has tried to buy a gun knows, it is almost impossible to buy one gun in the first place.  If you can buy more than a few guns in a year, please give me your secret.

My biggest problem with this straw buyer garbage has little to actually do with gun rights.  Instead, it is that this is just a BS argument with nothing to support it but no one out there has the smarts or the guts to counter this argument.  I think the Court will say that Jersey City cannot do this as it is a State issue.  However, if the State does it, I’m afraid that the Court would uphold it.

Story is here.

When is 30 days, not 30 days?

Why do police get to bend and break the 30 day requirement?  This case:

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-4878-96T5

 

 

DIANE M. ADLER,

 

Plaintiff-Appellant,

 

v.

 

DANIEL LIVAK,

 

Defendant-Respondent.

___________________________________

 

Argued January 28, 1998 – Decided February 11, 1998

 

Before Judges Baime and Brochin.

 

On appeal from Superior Court of New

Jersey, Law Division, Somerset County.

 

 

The opinion of the court was delivered by

 

BAIME, P.J.A.D.

 

The Code of Criminal Justice provides that a person wishing to acquire a rifle or shotgun must apply to the chief of police of the municipality in which he resides for a firearms purchaser identification card. N.J.S.A. 2C:58-3b. Among other things, the chief of police is to obtain reports from the State Bureau of Investigation (SBI) and the Federal Bureau of Investigation (FBI) comparing the applicant’s fingerprints with all records in their possession. N.J.S.A. 2C:58-3e. The chief of police must grant the identification card within thirty days of the date of the application unless good cause for the denial of the application appears. N.J.S.A. 2C:58-3f. At issue is whether the chief of police may withhold rendering a decision on an application where the reports of the SBI and the FBI have not been received within that thirty day period.

On July 23, 1996, plaintiff applied to defendant, the Franklin Township Chief of Police, for a firearms purchaser identification card. Defendant neither granted nor denied plaintiff’s application within the thirty day period because he was awaiting the FBI fingerprint report. It is undisputed that defendant acted diligently in requesting the FBI fingerprint check. We are told that FBI reports are routinely received some two or three months after the request is made.

Plaintiff filed a two count complaint in the Law Division on August 27, 1996. In the first count, plaintiff, by way of an action in lieu of prerogative writs, sought a judgment “compelling defendant to issue [to her] the [requisite] Firearms Purchaser Identification Card.” In the second count, plaintiff demanded a judgment declaring that defendant had violated N.J.S.A. 2C:58-3f by his “failure to issue [a] Firearms Purchaser Identification Card within” the thirty day statutory period. On September 17, 1996, plaintiff was notified that her application for a permit had been approved.

The parties filed cross-motions for summary judgment. The Law Division refused to dismiss the complaint as moot on the ground that the issue was capable of repetition and would otherwise evade review. Instead, the court found that defendant had acted reasonably in delaying action on plaintiff’s application until receipt of the FBI report. This appeal followed.

Preliminarily, we observe that this appeal has been rendered moot because plaintiff ultimately was granted a firearms purchaser identification card. We, nevertheless, choose to consider the merits of plaintiff’s contention because the question is one of public importance, is liable to recur, and may well evade appellate disposition. See In re Application of Martin, 90 N.J. 295, 309-10 (1982).

Plaintiff asserts that a permit must be either granted or denied within thirty days of the date of the application whether or not the SBI and FBI reports have been obtained by the chief of police. She contends that if a permit is granted and the SBI or FBI report later discloses a criminal conviction or some other statutory disability, the chief of police may institute proceedings to revoke the identification card. She urges conversely that if a permit is denied on the supposition that the SBI or FBI report will disclose a statutory disqualification, the applicant may seek immediate judicial review under N.J.S.A. 2C:58-3d or await the result of the fingerprint check and renew his application. We reject plaintiff’s contention that the statute requires the chief of police to either grant or deny an application for a permit within the thirty day statutory period.

We read the statutory scheme as requiring a chief of police to withhold action on an application for a firearms purchaser identification card until receipt of the requisite SBI and FBI fingerprint reports. Our interpretation of the law derives from the statutory language, the legislative purpose and the public policy underlying the enactment.

We first look to the statutes themselves. As we noted, a person wishing to acquire a rifle or shotgun must first obtain a firearms purchaser identification card. N.J.S.A. 2C:58-3b. The standards that must be satisfied in order to obtain a permit can fairly be characterized as liberal. The statute provides that “[n]o person of good character and good repute” may be denied a permit unless found to be subject to “any of the disabilities set forth in [N.J.S.A. 2C:58-3c] or other sections.” N.J.S.A. 2C:58-3c. Included among the disqualifying disabilities listed in N.J.S.A. 2C:58-3c are: a criminal conviction, drug or alcohol dependency, a mental disorder, a physical or psychological handicap bearing upon the applicant’s capacity to handle safely such weapons, a domestic violence order proscribing possession of firearms, and other undefined problems where issuance of a permit would be inconsistent with the public health, safety and welfare. N.J.S.A. 2C:58-3c(1) to (6). In addition, persons under the age of eighteen may not obtain a permit. N.J.S.A. 2C:58-3(4). The chief of police must obtain the applicant’s fingerprints and “have them compared with any and all records” of the SBI and the FBI. N.J.S.A. 2C:58-3e. The chief of police is required to “grant . . . the identification card . . . within [thirty] days from the date of receipt of the application,” “unless good cause for the denial thereof appears.” N.J.S.A. 2C:53-3f

In construing the statutory scheme, we perceive no irreconcilable conflict between the duty of the chief of police to grant a permit within the statutory period unless “good cause” appears, and the duty to obtain fingerprint reports from the SBI and the FBI. Instead, we construe the separate sections in pari materia. See Clifton v. Passaic County Bd. of Taxation, 28 N.J. 411, 422 (1958); Borough of North Haledon, 305 N.J. Super. 19, 28 (App. Div. 1997); Sutherland, Statutory Construction (4th ed.),

§ 46.05 at 56. We stress that the phrase “good cause for the denial” is not defined in the statutes. The clear implication is that “good cause for the denial” of a permit need not be grounded only in the statutory “disabilities” listed in N.J.S.A. 2C:58-3c(1) through (6). Moreover, the express statutory language does not specifically require that an application be denied within the thirty day period, but rather that the permit be granted unless “good cause” for a denial appears. N.J.S.A. 2C:53-3f. We thus conclude that the inability of the chief of police to obtain the requisite SBI and FBI reports within the thirty day period constitutes “good cause” for a denial, but does not require the chief of police to deny the application on that account. He must withhold rendering a decision on the application until the fingerprint reports are obtained from the SBI and the FBI. If the reports so obtained do not disclose a criminal conviction or any other disqualifying disability, the “good cause” for the denial of the permit evaporates, and an identification card must be granted immediately. Conversely, if the SBI or FBI report yields information disclosing good cause for the denial of a permit, the applicant should be notified in timely fashion.

Our construction of the statutory language comports with the clearly expressed legislative intent to prevent criminals and other unfit elements from acquiring firearms. In setting its course, the Legislature was undoubtedly aware of the strongly expressed views of many law enforcement officials who have long favored state and federal regulation of the sale and possession of firearms. Burton v. Sills, 53 N.J. 86, 93 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969). Wholly apart from the dangers which arise when firearms are in the hands of criminals, there is the potential for disaster when such weapons are acquired by the immature or the unfit or the addicted. To either grant or deny a permit on less than complete information would hardly serve the legislative purpose.

Finally, the result we reach is consonant with the public policy underlying the statutory scheme. Undoubtedly, the statutory deadline was prompted by a desire to avoid dilatory consideration of the application. But the consequences of automatic approval of a permit at the expiration of the thirty day period would be visited on the public for whose protection the statute was enacted. And the consequences of automatic denial of a permit at the expiration of the thirty day period would be visited on the deserving applicant for whose benefit the statutory scheme was enacted. Cf. Manalapan Holding Co., Inc. v. Hamilton Township Planning Bd., 92 N.J. 466, 480-82 (1983); Allstate Ins. Co. v. Fortunato, 248 N.J. Super. 153, 161-63 (App. Div. 1991). The simple and overriding fact is that the Legislature considered a fingerprint investigation to be critical in determining the fitness of an applicant for a permit. The remedy urged by plaintiff – automatic approval or denial of a permit – would serve only to frustrate the legislative design and the public policy underlying the statute without any compensatory benefit to either the public or the individual applicant. See In re Purcell, 137 N.J. Super. 369 (App. Div. 1975); cf. In re Return of Weapons of J.W.D., 290 N.J. Super. 451 (App. Div. 1996), aff’d in part, rev’d in part, 149 N.J. 108 (1997).

We do not question the legitimacy of recreational shooting sports or the collection of firearms, as regulated by statute. As we pointed out earlier, the statute reaffirms that “[n]o person of good character and good repute . . . and who is not subject to any of the [statutory] disabilities . . . shall be denied . . . a firearms purchaser identification card.” N.J.S.A. 2C:58-3c. To emphasize that purpose and to guard against its arbitrary subversion, further provision was made for easy and expeditious appeal to the courts. N.J.S.A. 2C:58-3d; see also Weston v. State, 60 N.J. 36, 43 (1972). But whatever one’s views on the worth of firearms, their capacity to wreak havoc when in the hands of the unfit is a matter of public record. The Legislature has wisely provided for suitable inquiry into qualifications and fitness. We do no more than carry out that legislative mandate.

Affirmed.

Cops give man problems for dismissed marijuana charge

New client called me today about the police giving him problems for a marijuana charge that was dismissed.  Even though he was not convicted, he reports that his local police department called him in towards the end of the application process to read him the riot  act for his failure to disclose this charge.   Problem  is, he was not convicted and he did disclose it, but maybe not in the exact format that they wanted. 

I’m sure we’ll work it out so there won’t be any problems.   His prior attorney told him that this would not be on his record.  However, when a charge is dismissed for any reason, the arrest is still on your record.  Thus, an expungement is necessary to remove everything from your record.  Had he done that in the first place, the application process would have been much easier.

Man can’t get police to help him submit application

Compare this to my other post from last week.  Client called me up today and said that the police won’t even give him information on how/where to submit his application.  He stated that he calls up his local police department in New Jersey and they hang up on him or just keep transferring him when he asks them when and where he can apply for a purchase permit.  From the information I am getting lately, it seems like things are getting much worse.

Man calls Chief to speed up permit process

I don’t suggest you do this, but I thought I’d share this story.

Hi Jef,

You asked me when we spoke last friday to keep you updated on my FID
process. Like I had explained I had called weeks ago and was met with
an irritated secretary that told me they were months and months behind
and offered no other insight other than you get it when you get it.
After speaking with you, I decided to roll the dice and call the chief
of police and explain my situation and inquire about the timeline.

I spoke with his secretary, who was very helpful and who passed me on
the Lt. who handle the firearm permits. I left the Lt. a voice mail
explaining my upcoming hunting trip and just wanted to know if I would
have the permit prior to my april departure date and if not it, it was
no problem. I just needed to know ASAP in order to cancel and get my
deposit back.

On wednesday of this week I received a VM from the Lt. saying all was
good and the permit just needed to be signed by the chief which should
be done within a few days. I received the call the permit was ready
today and picked it up.

It seems that the Lt. is actually a reasonable guy.

No retaliation from police for getting attorney

I’ve had a few people ask me this week if the police will harass them if they get an attorney to help them with their gun permits.  In fact, one caller this week said that a local gun store indicated that a certain town always retaliates against an applicant when they get an attorney. 

First of all, I’ve done applications in that town and have not had a problem.  In fact, not one client has ever reported a problem.  Second, I don’t know of any other attorney that does what I do, let alone in that town, so I doubt this rumor is true.  Instead, I think this was more speculation that, after several  re-tellings of the story, came to be that this always happens.

As I’ve reported before, I actually had the town counsel call me to assure me that there would be no problems with the application.  If I thought this was such a bad move, I wouldn’t do it in the first place.  After all, this service is to help clients avoid expensive appeals.  It is not a profit venture on the part of my office.

Various examples of garbage going on here in NJ

Client just hired me this week who applied for a purchase permit and, after several months, was denied because one of his references could not be reached.  Of course, a simple phone call to the client to ask if he can call the person or supply another name would have been the polite thing to do.  I have to think that if the client had an attorney, this would not happen.  In fact, I’ve yet to get a call from a police department for this issue.  Thus, one has to wonder if this is really legit in most cases.

What is sad about this is that a client like this should not have to get an attorney.  However, the alternative is paying an attorney several thousand dollar to appeal instead of a several hundred to do the application. 

Another client emailed me and told me that one police department is telling him that they are at least 6 months behind.  Funny thing is, I just processed an application with the same department about a month ago and was processed very quickly.   Again, just garbage.  I might seem like an odd attorney, but it bothers me when clients have to hire an attorney for matters that shouldn’t require one.  But, if I can save them thousands by avoiding an appeal, I feel that it is the best case scenario given the circumstances.

How to inherit a gun in New Jersey

Here is the law on inheriting guns.  As always, be very careful if you plan to do this without an attorney.

13:54-1.13 Firearms passing to heirs or legatees

(a) Notwithstanding the provisions of this subchapter concerning the acquisition of a firearm, a permit to purchase a handgun or a firearms purchaser identification card shall not be required of an heir or legatee for the passing of a firearm, upon the death of its owner. A person so acquiring ownership may retain the firearm if he or she meets the requirements of N.J.A.C. 13:54-1.5 and 1.6.

(b) If an heir or legatee is not qualified to acquire a firearm, he or she may retain ownership of the firearm for the purpose of sale for a period of 180 days, which period may be extended by the chief of police or the Superintendent.

During such period the firearm must be placed in the custody of the chief of police or Superintendent.

(c) In the case of assault firearms or machine guns disposition shall be in accordance with N.J.A.C. 13:54-5.