Category Archives: Cases
Permit denied due to extensive psych history
IN THE MATTER OF
JOHN BAMBURAK, JR.
Before Judges Sabatino and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Evan F. Nappen, attorney for appellant John Bamburak, Jr. (Richard V. Gilbert, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent, State of New Jersey (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).
Appellant John Bamburak appeals from the Law Division order denying his appeal of the denial of his application for a New Jersey Firearms Purchaser’s Identification Card and a New Jersey Permit to Purchase a Handgun (the application). We affirm.
On October 18, 2006, Bamburak submitted the application to the Woodbridge Police Department. Question 25 asks,
Have you ever been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an in-patient or outpatient basis for any mental or psychiatric conditions? If Yes, gives the names & location of the doctor, psychiatrist, hospital and the date(s) of such occurrence.
Bamburak responded, “See attached psychological evaluation supplied.”
Anthony Todaro, Ph.D., had performed the psychological evaluation on June 20, 2006. The doctor conducted a one-and-one half-hour clinical interview with Bamburak and his girlfriend, which revealed that Bamburak was previously treated for bipolar disorder with depression and had a history of domestic violence. The doctor also conducted six hours of psychological testing. Based on the interview and testing, the doctor concluded that Bamburak could safely handle a firearm.
Although the psychological evaluation mentioned Bamburak’s treatment at Raritan Bay Mental Health Center (the Center), Bamburak did not submit any records from that treatment. Rather, Detective Sergeant Joseph Velez, who conducted the investigation, obtained the Center’s records from 1986 to 1994, which revealed a much more extensive psychiatric and domestic violence history than that Bamburak revealed on the application and to Dr. Todaro. For example, and apparently unbeknownst to Dr. Todaro, Bamburak had been diagnosed with dysthymia and episodic and anti-social personality disorder, he had a history of alcohol abuse, he “dropped out of treatment and did not respond to treatment[,]” and he was “not interested in treatment.” He also had beaten his ex-wife so severely as to rupture her spleen, requiring its removal. Dr. Todaro did not review the Center’s records, did not speak to Bamburak’s ex-wife, and did not testify at the hearing.
Velez recommended denial of the application based, in part, on Bamburak’s failure to fully disclose his mental health history. The officer discounted Dr. Todaro’s psychological evaluation because it only involved one clinical interview and six hours of testing, and he credited the Center’s records because they involved treatment over several years. The officer concluded that the Center’s records gave “a very sufficient cause for denial [of the application]” on the basis of Bamburak’s mental health. The officer also recommended denial based on Bamburak’s domestic violence history, and on information the ex-wife provided. The officer also emphasized his concern that Bamburak sought to possess a gun professionally as a member of a security force.
The chief of police denied the application because Bamburak did not reveal his entire mental health history on the application, because of public health, safety and welfare concerns, and because of his mental health and domestic violence histories.
Bamburak appealed to the Law Division. Because of his concerns about the domestic violence, Judge Edward Ryan instructed the prosecutor to obtain the ex-wife’s input on the application. She subsequently submitted a letter, making unfavorable allegations about Bamburak and objecting to the application.1
Bamburak claimed to possess audio tapes of conversations with his ex-wife, which supposedly refuted her allegations. His attorney requested an adjournment in order to review those tapes. The judge reluctantly granted the adjournment and ordered Bamburak to produce the tapes to the prosecutor.2 Bamburak did not comply with the order.
Bamburak’s ex-wife testified at the ensuing hearing that he had psychologically and physically abused her throughout the course of the marriage, many times inflicting injuries requiring medical treatment, including the splenectomy. She also testified about Bamburak’s repeated violation of a restraining order and his repeated harassment after the parties had divorced. It was clear from her testimony that she still feared her ex-husband, who she described as having a “violent temper.”
Bamburak also testified at the hearing. He admitted the domestic violence resulting in the splenectomy. However, in response to a question about his ex-wife’s allegations of repeated abuse, he responded, “I discount them very much, yes.” Bamburak also provided ambiguous testimony about his treatment at the Center, claiming that he stopped treatment because of financial concerns.
Judge Ryan denied the appeal. He emphasized that Bamburak’s “demeanor at the time of the . . . hearing further calls his credibility into question[,]” and that Bamburak’s non-compliance with the court’s order to produce the audio tapes “is indicative of his lack of willingness to assume responsibility.” The judge concluded that Bamburak “knowingly falsified or failed to provide necessary information that is clearly required by the application.” The judge also concluded that Bamburak had “engaged in an act of domestic violence” resulting in the ex-wife’s splenectomy, and that his “lack of self-control and discretion is indicative of his proclivity to engage in conduct that is not in the interest of public health, safety, and welfare.”
“Our review of the [trial] judge’s findings of fact based on testimony presented during plenary hearing is limited.” Mt. Hill, L.L.C. v. Tp. Comm. of Middletown, 403 N.J. Super. 146, 192 (App. Div. 2008). The trial judge’s findings “should not be disturbed unless ‘they are so wholly insupportable as to result in a denial of justice,’ and that [we] should exercise [our] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.” Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). We should 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 interests of justice.” Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Credibility determinations are included within the trial court’s deferential factfinding authority. Ferdinand v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 492 (1956).
“However, ‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'” and is subject to de novo review. Mt. Hill, supra, 403 N.J. Super. at 193 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). With these standards in mind, we continue our analysis.
“On appeal to the Law Division [from the denial of an application for a firearms purchaser identification card], the hearing is de novo, which ‘in this context contemplates introduction of relevant evidence and material testimony and the application of an independent judgment to the testimony by the reviewing court.'” In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) (quoting Weston v. State, supra, 60 N.J. 36, 45 (1972)). “The chief [of police] has the burden of proving the existence of good cause for the denial by a preponderance of the evidence.” Ibid. (citing Weston, supra, 60 N.J. at 46). Good cause for denial exists where the applicant “knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card,” or “where the issuance would not be in the interest of the public health, safety or welfare.” N.J.S.A. 2C:58-3c(3) and (5).
At the hearing, the applicant shall provide testimony regarding the application, its denial and the reasons given by the police department. Weston, supra, 60 N.J. at 46. The police department shall provide any “evidence on which [its] denial was predicated.” Ibid. Generally, this includes testimony of the police officers who investigated the application, any lay or professional witnesses who provided information which influenced the denial, and “any admissible documentary evidence which played a part in the adverse decision.” Ibid. The applicant is allowed to offer “relevant rebuttal testimony” to this evidence. Ibid.
Based on our careful review of the record, we are satisfied that Judge Ryan’s factual and credibility determinations are amply supported by credible evidence. Bamburak knowingly falsified information on the application by failing to provide all of the requested material information about his past mental and psychiatric treatment. This in and of itself is a disqualifying factor.
Also, Bamburak concealed from Dr. Todaro critical information about psychiatric history and the nature and extent of the domestic violence, thus discrediting the doctor’s conclusion. This, along with Bamburak’s domestic violence history, demonstrates his danger to the public health, safety, or welfare.
Bamburak’s contentions that Judge Ryan improperly considered his failure to produce the audio tapes, and improperly overrode the State’s initial intention to approve the application by requesting information from the ex-wife, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
Judge Ryan’s decision did not rest on Bamburak’s failure to produce the audio tapes. Nevertheless, as part of his credibility assessment, the judge was entitled to consider Bamburak’s failure to comply with a court directive. Also, the judge’s review of the application was de novo. As part of his de novo responsibilities, the judge had the authority to request additional evidence regarding the domestic violence issue. We discern no error in the judge’s prudent request to hear cross-examined testimony from the ex-wife before rendering a final decision.
1 For example, Bamburak’s ex-wife accused him of causing her hearing loss.
2 Although no formal order was entered, the transcript reveals that the judge unambiguously directed Bamburak to produce the tapes by November 9, 2007.
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
DIANE M. ADLER,
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
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.
The carry permit case
Although this is an “unpublished” case, in my opinion, it shows how judges will likely view carry permit cases moving forward. For example, the judges said “In conducting their activities to vindicate the monetary interests of the bail bondsmen who retain them, the applicants are free to seek police assistance. They have no legal responsibility to act without it, and thus have no special standing to claim the right to permits to carry handguns in order to do so. Given this State’s commitment to minimizing the violence that freer access to firearms promotes, it is not inappropriate, as a general matter, that the applicants should be discouraged from their private pursuit of armed and dangerous fugitives and relegated to the need to seek police assistance in such instances.”
In other words, if you have problems, call the police like anyone else regardless of how impractical that may be. For most people this means that carry permits are a last resort. If you can do almost anything else, even if that means losting money you could have earned, you should do that. Sad I know, but if you are not involved in local politics and/or second amendment activism, you have little right to complain.
IN THE MATTER OF THE APPLICATION OF CHARLES P. BORINSKY. IN RE RODGER D. JONES, CRAIG S. JOHNSON, ANTHONY T. TETI. IN THE MATTER OF THE APPLICATION OF JOSEPH W. HAFFNER, JR.
DOCKET NO. A-2891-01T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
363 N.J. Super. 10; 830 A.2d 507; 2003 N.J. Super. LEXIS 286
December 4, 2002, Submitted
August 28, 2003, Decided
SUBSEQUENT HISTORY: [***1] Approved for Publication August 28, 2003. Counsel Corrected September 17, 2003.
PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County in A-2891-01 and A-5911-01, and Cumberland County in A-4304-01, A-4305-01, and A-4307-01.
JUDGES: Before Judges KESTIN, EICHEN and FALL. The opinion of the court was delivered by KESTIN, P.J.A.D.
OPINION BY: KESTIN
[**508] [*11] The opinion of the court was delivered by
These five appeals raise common issues. A-4304-01, A-4305-01, and A-4307-01 were consolidated by our order shortly after they were filed. We now consolidate them with A-2891-01 and A-5911-01 for the purposes of this opinion.
[*12] Charles P. Borinsky, Rodger D. Jones, Craig S. Johnson, Anthony T. Teti, and Joseph W. Haffner, Jr. (collectively, applicants) are all “bail enforcement” or “fugitive recovery” agents employed by various entities to investigate, locate, and apprehend criminal defendants who have “jumped bail,” i.e., in the terms of the pertinent statute, N.J.S.A. 2C:29-7, HN1“person[s] set at liberty . . . with . . . bail” who have “fail[ed] to appear” “at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration[.]” Pursuant to N.J.S.A. 2C:58-4c and N.J.A.C. 13:54-2.1 to -2.10, each applicant sought a permit to carry a handgun from the Chief of Police of the municipality in which he resided. The Borinsky, Jones, Johnson and Teti [**509] applications were denied on the local [***3] level; the Haffner application was approved.
Each denied applicant appealed from the local action to the Law Division. See N.J.S.A. 2C:58-4e and N.J.A.C. 13:54-2.8. The Haffner matter came before the court by reason of the court’s statutory and regulatory oversight responsibilities, pursuant to N.J.S.A. 2C:58-4d and N.J.A.C. 13:54-2.5, whenever an application is approved.
The Borinsky and Haffner matters were heard in Morris County; the Jones, Johnson, and Teti appeals were heard in Cumberland County. The court in Morris County upheld the Borinsky denial for reasons articulated on the record and in a superseding written opinion; and it disapproved the Haffner application for reasons expressed on the record. The court in Cumberland County granted the permits sought for reasons stated on the record.
The applicants appeal from the Morris County dispositions. The State appeals from the Cumberland County dispositions. The Attorney General, having appeared as amicus curiae in the Borinsky matter on the trial court level, sought and received leave to appear as amicus [***4] curiae on appeal in the Jones, Johnson and Teti matters, as well. We affirm the Morris County determinations, on [*13] a basis different from that employed by the trial judge therein; and we reverse the orders entered in Cumberland County.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Jones, Johnson and Teti Matters–Cumberland County
Jones, Johnson and Teti, the respondents in the Cumberland County appeal, have filed a joint brief. They are all employed as fugitive recovery agents by Ameritac Security and Investigation, Inc. of Millville (Ameritac). Their applications for permits to carry handguns were denied by the Millville Chief of Police on the basis that each, as a private citizen, had failed to establish justifiable need to carry a handgun. These applicants contend that in each letter memorializing his denial, the Chief of Police inaccurately stated that the applicant was “employed by private security.” See N.J.A.C. 13:54-2.4(d)(2).
The hearing before the trial court on April 9, 2002 was conducted on the basis of a stipulation that each applicant had demonstrated “thorough familiar[ity] with the safe handling and use of handguns, [***5] ” and that each was “a person of good character, not subject to any disabilities which would prevent [him] from obtaining a permit[.]” Each applicant testified that he had been employed by Ameritac since its inception in October 2001, commencing his fugitive recovery activities in December, after completing a training course. Jones and Johnson had previously been in the trucking industry and Teti had operated a body shop.
Ameritac’s first fugitive apprehension occurred on January 1, 2002. In the three months between that date and the trial court hearing, the applicants had been shot at and threatened with a variety of weapons in the course of their work. Because they were unarmed, they carefully screened cases and declined to participate in those in which the fugitives were known to be armed and dangerous.
[*14] As a standard practice, the local police department is advised before Ameritac personnel proceed in their attempts to apprehend any fugitive. Sometimes, the police insist on escorting the agents. All the applicants testified that their responsibilities as “team leaders” or “door guides” include the task of securing and controlling [**510] the area in which their unarmed team members [***6] are functioning. Johnson testified:
That’s why it’s imperative that the three of us be allowed to carry[,] because we’re responsible for the rest of these people out in the field. We’re the ones making the calls and the decisions on what’s going to be going down.
B. The Borinsky Matter–Morris County
Borinsky is employed by S & S Fugitive Recovery, Inc. (S & S) of Newark. He is a former investigator for the Essex County Sheriff, was assigned for a time as a sheriff’s officer to a trial judge, and had been a firearms marksmanship instructor in the United States Marine Corps. In discharging his responsibilities as a fugitive recovery agent in and around Newark, Borinsky provides assistance and intelligence to the Newark Police Department.
His experiences in the course of his work, as well as the demands of the job, are similar to those recounted by the other applicants. Borinsky’s asserted need for a permit is based upon the same personal safety concerns posited by the other applicants.
The Chester Township Chief of Police denied Borinsky’s application because he was unable to communicate with S & S to verify Borinsky’s employment. On September 21, 2001, the Chief of [***7] Police denied the permit “based upon you failing to justify your need to carry a handgun for employment purposes.” On October 3, 2001, Borinsky appealed to the Law Division in Morris County for trial court review.
At the initial hearing, the trial court continued the matter so that the Attorney General could be invited to intervene. After the plenary hearing that ensued, the court found that Borinsky’s employment with S & S had been verified. In the hearing, [*15] Borinsky testified that out of concern for his safety, because he is unarmed, and a handgun is necessary for self-defense, he has not participated in a raid for some time, limiting his activities to conducting investigations, gathering intelligence, setting up surveillance, and providing other support.
The trial court specifically found there were no general factual grounds for denying the permit suchas might exist as a matter of background or character evaluation. The court also found that Borinsky is familiar with the mechanics of firearms, can handle them safely, and has a good understanding of the circumstances in which it might be appropriate to use a firearm in defense. Nevertheless, the court upheld the denial of the [***8] permit on general legal and public policy grounds.
C. The Haffner Matter–Morris County
Haffner is currently employed as a bail enforcement agent by Mirage Enterprises of Rockaway. At the time of his application and the trial court hearing he was employed by Affordable Bail Bonds. He had been engaged in this kind of work for four years. Haffner testified that his duties included those of a bail bondsman as well as a fugitive recovery agent. His description of his job functions as a fugitive recovery agent and his experiences in discharging those duties was similar to those recounted by the other applicants. He testified also that, by reason of his additional bail bondsman responsibilities, he frequently carries large amounts of cash. The Law Division judge recognized this latter factor as another basis of need for the permit.
Haffner has a college degree in business administration and formerly worked in the telecommunications industry. He has successfully completed classes in firearm handling and proficiency.
[**511] With respect to local police involvement in his fugitive apprehension activities, Haffner testified that although he always provides notice to local police, most [***9] often they are not interested in participating.
[*16] As we have noted, the procedural posture of the Haffner matter is different from the others. The Rockaway Township Chief of Police determined that a permit to carry a handgun should be issued to Haffner. The matter came before the Law Division by reason of the court’s statutory and regulatory oversight responsibilities, pursuant to N.J.S.A. 2C:58-4d and N.J.A.C. 13:54-2.5, upon approval of an application.
The trial court found Haffner to be “intelligent and responsible,” with no background or character-evaluation blemish or disability. The court also found that Haffner satisfied the statutory standard for familiarity with handgun use. The application was disapproved, however, essentially for the legal and public policy reasons the same judge had employed in the extensive written opinion explaining the denial of the Borinsky permit.
THE TRIAL COURT RATIONALES
The decision in the Borinsky matter was rendered first. The Morris County Law Division judge’s findings of fact and disposition affirming the permit denial were explained on the record on January 30, 2002, and [***10] later formalized in an extensive, superseding written opinion filed on February 5, 2002.
The Cumberland County Law Division judge’s determination reversing the three permit denials before him was made on April 9, 2002. His findings of fact and rationale were articulated in an oral opinion.
The Haffner matter was the last to be decided, on July 2, 2002, by the same judge who had ruled in the Borinsky matter. The judge’s findings of fact and explanation of his decision to disapprove the permit were set out in an oral opinion.
A. The Morris County Rationales (Borinsky/Haffner)
The Morris County judge addressed HN2the three statutory criteria for granting a permit to carry a handgun: “that the applicant is a [*17] person of good character who is not subject to any of the disabilities set forth in [N.J.S.A.] 2C:58-3c, that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun.” N.J.S.A. 2C:58-4d. Expressly finding no grounds for disqualification on the basis of either of the first two standards, the judge then turned to the third criterion: “justifiable need [***11] to carry a handgun.”
The judge noted that “bail bondsmen themselves frequently seek to secure the apprehension of [a non-appearing] defendant [on bail in order to] avoid forfeiture of the bail.” They have arrangements with fugitive recovery agents “to locate and apprehend the defendant and bring him back before the court.” In his oral opinion, the judge had noted his
concern with the public safety risks that are involved when we have private citizens going out, arresting criminal defendants, when there’s a high risk that the criminal defendant is armed and may resist; and if he does and the apprehender becomes involved in that kind of a confrontation, there’s an obvious risk that the defendant can be injured or killed, the arresting or apprehending bail enforcement person can be injured or kill[ed], and innocent bystanders can be injured or killed. There’s nothing that says when they go in to arrest somebody, he’s in an apartment or house [**512] all by himself. There are sometimes other people there, and sometimes the other people are rather vulnerable, younger people. We didn’t actually get to specific testimony about it in this case, but there are sometimes, I know in other cases, [***12] children in these apartments, and we have reported cases where children have been involved, when bail bondsmen go in to make arrests, kids just happen to be there when they go to get the defendant.
So there’s a risk that those kinds of people can be injured; and then, of course, there’s just a risk that bystanders, people walking down the street . . . that, could be injured . . . . and even killed.
So there are serious public safety issues with respect to whether it’s a good idea to allow bail bondsmen and companies like Mr. Borinsky’s, which work for bail bondsmen . . . to go on their own, as private citizens, without police assistance, and apprehend potentially dangerous criminals.
The judge found from the record before him that although the police are usually informed of a recovery agent’s plan, police assistance is not requested as a rule and the police “would not readily lend . . . assistance in making an apprehension.” The witnesses before the judge had expressed the “thought that local police departments were typically satisfied to have apprehensions made by organizations such as S & S Fugitive Recovery.” The [*18] judge viewed the issue before him as “whether bail bondsmen [and [***13] their agents] should be doing this work.”
In both his oral and written opinions, the judge engaged in an exhaustive and scholarly analysis of the holdings and effects of Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1873), and Reese v. United States, 76 U.S. (9 Wall.) 13, 19 L.Ed. 541 (1870), and their federal caselaw progeny, see, e.g., Lund v. Seneca County Sheriff’s Dep’t, 230 F.3d 196 (6th Cir.2000); Kear v. Hilton, 699 F.2d 181 (4th Cir.1983), on the basis of which the applicants had posited the proposition, also advanced on appeal, that:
Professional bondsmen in the United States enjoy extraordinary powers to capture and use force to compel peremptory return of a bail jumper. They may do so not only in the state where bail was granted, but in other states as well, without resort to public authorities, either the police to effect the arrest or the appropriate state officials to bring about extradition.
To the extent Taylor and Reese could be read to stand for the principle advocated by the applicants, the judge held, inter alia, that those cases “do not set out binding interpretations [***14] of federal constitutional law. Instead, they are simply cases setting forth an interpretation of common law principles dealing with contract law and surety law[,]” views not binding on state courts since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
The judge went on, in his analysis of New Jersey law, to explore the public policies relating both to firearm licensure and the activities of fugitive recovery agents. He opined that “the physical apprehension of bail jumpers should be placed in the hands of professionally trained law enforcement officers who are functioning in well disciplined public agencies which are subject to tight legal control and which are accountable to the public,” rather than committed to the vagaries of the ways in which private agencies choose to conduct their businesses. In so reasoning, the judge gave considerable weight to the views of the Attorney General as the State’s chief law enforcement officer “that [**513] the apprehension of bail jumpers [by persons in the private sector] poses an unacceptable [*19] risk to public safety.” After specifically considering and rejecting several particular arguments offered [***15] by the applicant, the judge cited In re Application of Preis, 118 N.J. 564, 573 A.2d 148 (1990), and New Jersey State Special Police Association, Inc. v. Attorney General, 201 N.J.Super. 75, 492 A.2d 1018 (App.Div.1985), as examples of cases applying the Legislature’s policy of strict gun control, and concluded “that the general policy underlying our gun control laws in New Jersey calls for great caution with respect to allowing fugitive recovery agents . . . to have a permit to carry a handgun.”
In denying the Haffner application several months later, the judge relied on the same policy considerations enunciated in his disposition of the Borinsky application, concluding, as well, that Haffner’s activities as a bail bondsman and his sometime practice of carrying large amounts of cash did not provide sufficient additional reason to grant the permit.
B. The Cumberland County Rationale (Jones/Johnson/Teti)
The Cumberland County judge applied a different sense of the public policies involved. He agreed with the view expressed by the Morris County judge that apprehension of bail-jumpers should be seen as a duty of law enforcement officers, [***16] but he opined that local law enforcement lacked the resources to do the job. He regarded fugitive recovery agents as performing an essential function “in the pursuit of the interest of justice[,]” and determined that they were entitled to the self-protection that a permit to carry a handgun would bestow.
The judge held, based on
the nature of what they have done and will be required to do[,] . . . these individuals . . . have met the justifiable need and in the course of performing their duties these applicants will be subject to a substantial threat of bodily harm[,] and a handgun by each of these applicants is necessary to reduce the threat of unjustifiable serious bodily harm to any person.
* * *
I do not find any case that says on a case law basis that if this court finds justifiable need in the performance of their responsibilities, responsibilities that are [*20] dictated by the nature of the business itself, by the nature of the fact that we impose upon their bondsmen the forfeiture statute. And the nature of the fact that the law enforcement is just not duly funded nor equipped to have a department that can specialize in this at the present time.
Should that occur, [***17] then obviously there would be no need to have these individuals carry handguns for the performance of their duties because all they’ll have to do is show up at the police department and be accompanied by the police officer or a police officer would do it or they would do it on a regular routine basis as part of the warrant section of their particular duties.
Accordingly, the court having made those findings the court grants the permit with the understanding that the weapons can only be carried when on duty in the performance of a apprehension of a fugitive and at that time and that time only.
Furthermore, the handgun is to be a handgun approved by the Superintendent of the State Police. * * *
Furthermore, obviously they will be required to fulfill all the other requirements necessary as part of the permit. . . .
THE ARGUMENTS PRESENTED ON APPEAL
A. Borinsky and Haffner
The arguments advanced on appeal by Borinsky and Haffner are essentially identical, and are expressed in two main points. The general tenor of the first point is:
POINT I: THE COURT BELOW ERRED IN RULING THAT BAIL ENFORCEMENT AGENTS MAY NOT APPREHEND FUGITIVES.
The contentions [***18] begin with arguments premised on federal caselaw beginning with Taylor and Reese. They continue with a number of subpoints stated somewhat differently in the two briefs, but essentially advancing identical arguments:
a. [The trial court judge’s] decision opens a floodgate of pretrial and post-trial criminal Due Process issues which criminal defendants can now raise regarding their “false arrest” and subsequent searches, seizures and interrogations founded thereon.
b. If [the] decision is upheld, then the floodgates of civil litigation are now opened so that any fugitive who was apprehended by a bail enforcement agent can bring a civil action for “false arrest” and utilize [the judge’s] decisions, as well as the Attorney General’s opinion in this case, to argue that the authority did not exist for the bail enforcement agent to make the “arrest.”
[*21] c. [The] decision puts out a welcome mat to fugitives across the country to come to New Jersey because bail enforcement agents cannot make apprehensions in New Jersey, and only the police departments who are sometimes “not particularly responsive to requests to apprehend fugitives” can attempt to seize the fugitives. [***19]
d. [The judge’s] approach would dramatically increase . . . both the cost and risk involved with the issuance of bail bonds by surety companies as they will no longer be allowed to recover their fugitives in an expeditious manner.
e. The increased cost and risk of bail bonds would increase the already overcrowded jail population.
f. [The judge’s] approach would further burden the already over-tasked law enforcement resources, which are paid for by taxpayers, instead of allowing the continuance of an existing system which is largely funded by insurance companies [and is] an efficient and successful system.
g. [The judge’s] proposal would set an unenforceable standard for bail agents.
h. No evidence has ever been presented that bail recovery agents pose a threat to any person.
The second main points in the Borinsky and Haffner briefs are also essentially identical:
POINT II: THE COURT BELOW ERRED NOT GRANTING APPELLANT’S PERMIT TO CARRY A HANDGUN.
B. Jones, Johnson and Teti
In responding to the State’s appeal from the trial court order granting their permit applications, Jones, Johnson and Teti, in their joint brief, advance the following arguments: [***20]
POINT I: THIS COURT MAY ONLY REVERSE IF THE RECORD DEMONSTRATES THAT [THE TRIAL COURT JUDGE’S] FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE ARBITRARY, CAPRICIOUS AND UNREASONABLE.
[**515] POINT II: THE TRIAL COURT PROPERLY APPLIED THE LAW TO THE FACTS AND FOUND THAT JOHNSON, JONES AND TETI ALL SATISFIED THE REQUIREMENT OF “JUSTIFIABLE NEED” TO CARRY A HANDGUN.
A. THE RECORD BELOW CONTAINS SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT [THE JUDGE’S] FINDINGS THAT JOHNSON, JONES AND TETI DEMONSTRATED “JUSTIFIABLE NEED” TO CARRY A HANDGUN.
B. FUGITIVE RECOVERY AGENTS SHOULD BE JUDGED BY THE SAME STANDARD OF “JUSTIFIABLE NEED” USED IN CONJUNCTION WITH PRIVATE DETECTIVES AND SECURITY GUARDS.
POINT III: AS EMPLOYEES OF A LICENSED PRIVATE DETECTIVE AGENCY THE STANDARD OF “JUSTIFIABLE NEED” SET FORTH IN N.J.A.C. 13:54-2.4(2) IS NOW APPLICABLE TO RESPONDENTS.
[*22] POINT IV: FUGITIVE RECOVERY AGENTS PROVIDE A NECESSARY PUBLIC SERVICE.
POINT V: THE JOB RESPONSIBILITIES AND DUTIES OF TRAINED FUGITIVE RECOVERY AGENTS ARE COMPARABLE TO THOSE WHO WORK IN LAW ENFORCEMENT AND PERSONAL SECURITY.
POINT VI: THE STANDARD UNDER WHICH GUN PERMITS HAVE BEEN [***21] ISSUED TO FUGITIVE RECOVERY AGENTS IN NEW JERSEY IS NOT UNIFORM.
POINT VII: PERMITS TO CARRY HANDGUNS ARE SUBJECT TO REASONABLE SAFEGUARDS THAT SERVE TO ASSURE THE PROTECTION OF THE PUBLIC.
C. The State As a Party
Similar arguments are advanced by the respective county prosecutors, as respondent in the Borinsky/Haffner appeal and as appellant in the Jones/Johnson/Teti matter.
The Morris County Prosecutor argues in each of his cases that the trial court judge “properly refused to grant a pistol carry permit” and that “bounty hunters enjoy no federal right to apprehend fugitives.”
The Cumberland County Prosecutor frames the State’s arguments as follows:
POINT I: APPELLANTS DO NOT MEET THE LEGISLATIVE STANDARD AND ARE NOT ENTITLED TO PERMITS TO CARRY HANDGUNS.
POINT II: APPELLANTS HAVE NOT DEMONSTRATED JUSTIFIABLE NEED TO CARRY A HANDGUN.
POINT III: THERE IS NO ISSUE OF FAIRNESS WITH REGARD TO FUGITIVE RECOVERY AGENTS WHO HAVE PERMITS TO CARRY HANDGUNS THAT COMPETE WITH THOSE WHO HAVE BEEN DENIED PERMITS TO CARRY HANDGUNS.
D. The Attorney General As Amicus Curiae.
The Attorney General makes essentially identical arguments in those [***22] appeals in which he appears as amicus curiae, the Borinsky appeal and the Jones/Johnson/Teti matter. In the first point of each brief, the Attorney General argues that each applicant failed to demonstrate justifiable need for a permit to carry a handgun, and that the “justifiable need requirement for a permit to carry a [*23] handgun cannot be determined exclusively upon the occupation of the applicant.” In the Borinsky [**516] appeal, the Attorney General also argues that the trial court judge “erred in concluding that the applicant met the good character standards required to obtain a carry permit.”
While urging an affirmance of the permit denial in the Borinsky matter, the Attorney General argues that the trial court judge “relied upon an infirm rationale for the carry permit denial[,]” and that we should nevertheless affirm the denial even if we disagree with the basis for the trial court judge’s decision. Finally, in each of his briefs, the Attorney General argues that
THE UNFETTERED USE OF FORCE BY BOUNTY HUNTERS POSES A SERIOUS RISK TO PUBLIC SAFETY.
THE CURRENT SYSTEM OF HAVING ONE GUN PERMIT JUDGE IN EACH COUNTY RULE ON THE ISSUANCE OF PERMITS TO CARRY [***23] CONCEALED WEAPONS IS YIELDING INCONSISTENT RESULTS.
In the latter point, the Attorney General invites us to furnish “guidance . . . further delineating when the justifiable need standard has been met[.]”
We accept as binding, because supported by substantial credible evidence in the record, see Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495, 500-01 (1974); In re Application of Boyadjian, 362 N.J.Super. 463, 475, 828 A.2d 946, 955, (App.Div.2003), the trial court judges’ evaluations in all the matters before us that each of the applicants was not disqualified from the permits sought by any of the personal factors enumerated in N.J.S.A. 2C:58-3c or because of a failure to demonstrate adequate “familiar[ity] with the safe handling and use of handguns.” See N.J.S.A. 2C:58-4c.
We are not bound, however, by the rule-of-law bases undergirding the trial judges’ evaluations whether the applicants had met the third standard of N.J.S.A. 2C:58-4c, “justifiable need [*24] to carry a handgun.” See Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378, 658 A.2d 1230, 1237 (1995) [***24] (stating that, HN3on appellate review, no special deference is given to “[a] trial court’s interpretation of the law and the legal consequences that flow from established facts”). We cannot accept the Morris County judge’s view that, as a matter of public policy, fugitive recovery agents, as a class, ought not to be granted permits to carry handguns. No such broad disqualification appears in the legislation governing the subject. See Preis, supra, 118 N.J. 564, 573 A.2d 148 (holding that HN4“justifiable need” must be evaluated on a case-by-case basis on a determination “(1) that the applicant, in the course of performing statutorily-authorized duties, is subject to a substantial threat of serious bodily harm; and (2) that carrying a handgun is necessary to reduce the threat of unjustifiable serious bodily harm to any person”). We likewise reject the expressed view of the Cumberland County judge that fugitive recovery agents, as a class, qualify for handgun permits because of the dangers inherent in their work. The holding of Preis precludes that classificational approach, as well. HN5The categorical exemptions from State law prohibitions against carrying handguns without a permit are set out [***25] with great precision in N.J.S.A. 2C:39-6. Beyond those, there are no exceptions, in particular none that include bail bondsmen, sureties, or fugitive recovery agents.
Short of adopting a classificational approach, we view the arguments advanced by the Attorney General to be persuasive. [**517] None of the applicants before us has satisfied the justifiable need criterion. For present purposes, there is no difference between the instant applicants’ statuses as fugitive recovery agents and the private security officer applicants in Preis. HN6“Generalized fears for personal safety are inadequate [as a basis for a permit], and a need to protect property alone does not suffice.” Preis, supra, 118 N.J. at 571, 573 A.2d at 152; see also Siccardi v. State, 59 N.J. 545, 557, 284 A.2d 533, 540 (1971)(stressing the difference between [*25] “real danger” to life “as evidenced by serious threats or earlier attacks,” and “concern . . . with the safety of . . . property”).
HN7The status of fugitive recovery agent is not recognized for any purpose by State statute, and it is of no consequence whether federal law confers any rights upon the applicants to function along those lines. [***26] The State retains the power to establish its own standards for weapon possession licensure, irrespective of whatever occupational rights may be established elsewhere. In conducting their activities to vindicate the monetary interests of the bail bondsmen who retain them, the applicants are free to seek police assistance. They have no legal responsibility to act without it, and thus have no special standing to claim the right to permits to carry handguns in order to do so. Given this State’s commitment to minimizing the violence that freer access to firearms promotes, see State v. Pleva, 203 N.J.Super. 178, 189, 496 A.2d 375, 381 (App.Div.), certif. denied, 102 N.J. 323, 508 A.2d 203 (1985), it is not inappropriate, as a general matter, that the applicants should be discouraged from their private pursuit of armed and dangerous fugitives and relegated to the need to seek police assistance in such instances. Moreover, the records before us establish with clarity that many of the fugitives the applicants seek are not armed and dangerous.
We agree with the Morris County judge’s assessments of the personal and public dangers that would be presented by recognizing fugitive [***27] recovery agents, categorically, to be a special class for handgun permitting purposes. The Legislature has not undertaken to create such a class and no judge is warranted to do so. We have agreed, as well, with the Morris County judge’s views that Taylor and Reese have no limiting impact on a state’s authority to establish its own gun control standards. Accordingly, we reject any arguments advanced by the applicants based upon the premise that such rights as they may enjoy under Taylor and Reese and the cases decided thereunder require the grant of a permit to carry a handgun in the discharge of their fugitive recovery activities.
[*26] In sum, we differ with the views of both trial judges that the handgun-carry permit issue regarding fugitive recovery agents can be dealt with categorically to require either a “grant” or “deny” result or presumption in every instance. We hold that each application must be dealt with on its own merits, on a case-by-case basis. We find that none of the applicants herein has made a sufficiently particularized showing of justifiable need to carry a handgun in the pursuit of his voluntarily undertaken, private activities. As a general matter, [***28] those activities, when conducted by armed agents, pose a threat to public safety by their very nature. The risk is heightened when such persons, displacing the police, are given opportunity to engage in gunfire exchanges with armed and dangerous fugitives. Although these latter factors may not be considered dispositive, they cannot be ignored, either, as circumstantial elements to be taken into account in weighing an individual applicant’s showing of justifiable need. We discern from the records before us and the nature of the activities at issue that no special circumstances [**518] exist in any of the cases warranting a grant of the permit sought.
We also reject all the sub-arguments advanced by Borinsky and Haffner regarding the effects of the Morris County judge’s rulings. Those arguments either lack a basis in the record before us, or bespeak extra-judicial policy considerations, or are clearly without merit as a matter of facial evaluation. We agree with the Morris County judge, as well, that, to the extent the positions predicted in some of those arguments come to be advanced in the future, the courts at those times will doubtless deal capably with such contentions on the basis of [***29] the records developed.
On another specific issue, we reject the Attorney General’s argument that the trial judge erred in the Borinsky matter when he found no basis for disqualification on personal factors. On the record before us, we see no misapplication of the trial court’s discretionary authority to evaluate the showings made in that connection. Similarly, we disregard the Jones/Johnson/Teti contention that the Millville Chief of Police erred in describing those [*27] applicants as “employed by private security,” especially in the face of their arguments that the eligibility of fugitive recovery agents for permits to carry handguns should be judged by the same standard of justifiable need applied to private detectives and security guards. See N.J.A.C. 13:54-2.4(d)2.
Finally, we will not address the Attorney General’s argument regarding the inconsistency of results in the current system of having a single gun-permit judge in each county rule on all applications. The case-by-case evaluation regime mandated by Preis will necessarily result in decisions which may be viewed as “inconsistent.” HN8Any structural or administrative changes in the system are not [***30] within our authority to effect, but rather are within the purview of the Supreme Court in discharge of its rule-making responsibilities, see N.J. Const. Art VI, § 2, P 3, or of the Chief Justice in the exercise of her administrative powers, see N.J. Const. Art. VI, § 6, PP 1 and 2.
The orders denying the Borinsky and Haffner applications, in A-2891-01 and A-5911-01, are affirmed. The orders granting the Jones, Johnson and Teti applications, in A-4304-01, A-4305-01, and A-4307-01, are reversed.
NJ Appeals Court rules that people can change for the better
This case is a major win against the war against 2nd Amendment rights in New Jersey!
SUPERIOR COURT OF NEW JERSEY
IN THE MATTER OF THE APPLICATION
OF R.M.1 FOR A PERMIT TO PURCHASE
A HANDGUN AND A FIREARMS PURCHASER
January 23, 2009
Submitted December 16, 2008 – Decided
Before Judges Graves and Grall.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County.
R.M. appeals from an order dated December 20, 2007, denying his application for a permit to purchase a handgun and a firearms purchaser identification card. N.J.S.A. 2C:58-3(a) and (b). After reviewing the record, the briefs, and the applicable law in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of “good character and good repute” who is not subject to any of the enumerated exceptions. The statute provides, in part, as follows:
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. No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991,c.261(C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense;
(2) To any drug dependent person as defined in section 2 of P.L.1970,c.226 (C.24:21-2), to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons 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;
“[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public.” State v. Cunningham, 186 N.J. Super. 502, 511 (App. Div. 1982). See Application of Marvin, Jr., 53 N.J. 147, 156 (1969) (“[T]he sole issue is [the applicant’s] current qualification to purchase . . . weapons.”). The broad catch-all provision of section (5) relates “to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.” In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).
In this case, R.M. was a forty-one-year-old carpenter, residing in Hoboken, when he applied to the Hoboken Police Department for a permit to purchase a handgun and a firearms purchaser ID card in January 2007. On his application form, R.M. certified he had not been convicted of a crime or a disorderly persons offense, and he was not subject to any of the other statutory disqualifications. The investigation conducted by the Hoboken Police Department, however, disclosed he had two drug-related arrests and “a problem with drugs and alcohol in the past.” In a letter dated April 30, 2007, R.M. was notified by the chief of police that his application was denied pursuant to N.J.S.A. 2C:58-3(c)(5), because “disapproval is in the interest of the public health, safety or welfare.”
After his application was rejected by the chief of police, R.M. requested a hearing in the Superior Court. N.J.S.A. 2C:58-3(d). Hoboken Police Lt. James Roofe, the person who had investigated R.M.’s application, testified at the hearing. According to Roofe, R.M. had been arrested in New York in 1997 and charged with possession of crack cocaine, and he was also arrested in Hoboken in 1999 and charged with possession of marijuana. Roofe testified that the New York case was “dismissed and sealed,” and “the charge of possession of marijuana was amended to disturbing the peace, a city ordinance violation,” which resulted in a $175 fine. Because of R.M.’s past problems with both alcohol and drugs, Roofe recommended to the chief of police that R.M.’s application be denied:
Q. [A]s part of this application process, did you speak to any references of [R.M.’s]?
A. Yes I spoke to [R.M.’s] sister.
Q. Okay. And did you ask her about these arrests?
A. I asked her if her brother, who indicated to me that he had a problem with drugs and alcohol in the past, if she was aware of this? And she said that she was, that he had a problem with both drug[s] and alcohol in the past, but has been sober for the past five years.
Q. Okay. Now based on all of your investigation, did you make a recommendation as to . . . his permit application?
A. Yes, I recommended a denial of the application.
Q. What was that based on?
A. That was based on his past arrest history, and the fact that he had admitted to and confirmed by his sister a problem with both alcohol and drugs. The type of drugs involved in this case marijuana and crack/cocaine, we felt that it would be a safety issue somewhere down the line if there were any other problems with these areas.
Q. The results of your investigation and this recommendation [were] passed on to the police chief?
A. That’s correct.
In an effort to demonstrate that he was no longer suffering from drug or alcohol addiction, R.M. presented testimony from Dr. Anthony Todaro, a psychologist. Dr. Todaro’s testimony was consistent with his written evaluation, in which he stated:
Background and General Alcohol Involvement. This is a 42-year-old white male who is currently being seen in an outpatient setting. He does not show clear preference for any particular type of alcohol, beer, wine or liquor. The largest amount of alcohol consumed on any particular day is reported to be 16 or more cans of beer and that was over five years ago.
This person acknowledges some involvement with the use of alcohol, but that is no longer an issue since he is now a committed member of Alcoholics Anonymous. There is no preoccupation with alcohol at this time or any other drugs. [R.M.’s] close friend [J.H.] and coworker . . . confirms the fact that [R.M.] is a completely sober, honest, and dependable person. There is no concern for any type of deviant behavior. [T.J.], a 60 year old who he sponsors, also confirms this.
. . . .
The client does report historically, in an open and honest fashion, that he had an addictive disposition and that he did use illicit and street agents at the time. . . . At this time, however, he has withdrawn completely from the use of street drugs and alcohol and thereby the past diagnoses of psychoactive substance abuse and alcohol abuse are both in remission. . . .
. . . .
In summary, it can be stated with reasonable psychological certainty that [R.M.] has demonstrated himself to be completely safe and drug free for seven years and alcohol free for a minimum of a five-year period. He attends AA meetings with great regularity and has been endorsed by his friends as being a reliable, conscientious, and committed person who they can trust implicitly and explicitly. . . .
There is absolutely no evidence that he has any propensity whatsoever to indulge in alcohol or any psychoactive substances. At this point, he appears to be perfectly safe in handling firearms. There was no evidence to the contrary and there has never been any report of his misuse of any type of weapon nor any type of altercation or domestic violence.
When R.M. testified, he admitted that he had abused alcohol and drugs in the past, but he also testified that he had been “drug and alcohol free for over five years.” During cross-examination, he testified as follows:
Q. [R.M.], when you were arrested in I believe it was March of 1997 that was in Brooklyn, New York; correct?
Q. And you were arrested for possession of crack/cocaine?
Q. Were you using crack/cocaine at that time?
Q. Okay. And that charge was later dismissed in 1997; correct?
. . . .
Q. All right. Now in 1999 you were again arrested for possession of marijuana in Hoboken?
Q. [Y]ou later pled guilty to an amended charge of disturbing the peace?
Q. [W]ere you using marijuana at that time in 1999?
Q. All right. Now between ’96 and ’99 were you using marijuana and crack/cocaine?
A. Between ’96 and ’99.
Q. You had told Dr. Todaro that you had a substance abuse problem?
Q. When did that start approximately?
A. It was, you know, probably as a — you know, . . . as a teenager.
Q. Teenage years. So approximately 20, 30 years you were using, 20 years.
A. After I was arrested in Hoboken in 1999 . . . I stopped.
Q. You were still drinking at that point though?
Q. [Y]ou never sought any type of outpatient program or alcohol programs[?]
Q. You did join AA however?
. . . .
Q. And . . . you said [it is] about five years, eight months [since] you’ve stopped drinking?
During his closing remarks, R.M.’s attorney argued that his client had presented “satisfactory proof” that he no longer suffers from a “disability in such a manner that would interfere with or handicap him in the handling of firearms.” He also argued that R.M.’s application should have been approved because R.M. “is a person of good repute in his community,” who is not subject to any of the statutory disabilities. On the other hand, the prosecutor argued that the police chief was justified in denying R.M.’s application due to concerns regarding his prior abuse of alcohol and drugs and because: (1) R.M. had failed to produce a certificate from a medical doctor or psychiatrist under N.J.S.A. 2C:58-3(c)(3); and (2) Dr. Totaro acknowledged he never administered any test to determine whether R.M. was using alcohol or drugs.
In its oral decision on December 20, 2007, the trial court found that: (1) R.M. pled guilty to a disorderly persons offense following his arrest for possession of marijuana in 1999; and (2) R.M.’s prior substance abuse problems demonstrated “his general willingness to break the law and his ill repute in the community.” We recognize, of course, that findings by a trial judge are “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). Nevertheless, there is no evidence in the record before us that R.M. ever pled guilty to a disorderly persons offense, and we cannot agree that two arrests, which occurred approximately ten years ago, demonstrate a present willingness to break the law.
With respect to R.M.’s character and reputation, we note that “a reputation witness restates the community’s assessment of the subject’s character.” Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 309 (2006). Reputation has been defined as a “resultant picture of forgotten incidents, passing events, habitual and daily conduct . . . a multitude of trivial details.” Id. at 313 (quoting Michelson v. United States, 335 U.S. 469, 477, 69 S. Ct. 213, 219, 93 L. Ed. 168, 174-75 (1948)). In this case, R.M. provided the Hoboken Police Department with the names and addresses of “two reputable persons,” who were contacted by Lt. Roofe, and there was no testimony by Lt. Roofe that he received any negative information regarding R.M.’s character or reputation during his investigation. Thus, the record does not support the court’s finding that R.M.’s application should be denied because he is not a “person of good character and good repute in the community in which he lives.” N.J.S.A. 2C:58-3(c).
In light of these errors, R.M.’s attorney urges us to approve R.M.’s application. Alternatively, R.M. argues the order denying his application should be vacated, and he “should be granted a fair procedural application process, utilizing proper forms and applying proper standards of law.” However, because it has been more than a year since the court denied the application, and there is a need to focus on current circumstances, we will remand the matter to the trial court for further proceedings.
Finally, although N.J.S.A. 2C:58-3(e) provides for the use of standardized application forms, we are satisfied R.M. was not prejudiced by the firearms application form he was required to submit to the Hoboken Police Department. Dr. Totaro reported that R.M. “was open about his arrests” in 1997 and 1999, and “[t]he dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm.” In re Osworth, supra, 365 N.J. Super. at 78.
The order appealed from is reversed, and the matter is remanded to the trial court. Both parties shall be afforded an opportunity to supplement the record, if they elect to do so.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 We are using initials for appellant pursuant to Motion Order No. M-5881-07 filed on July 8, 2008.
FRO does not create automatic bar to weapon ownership
SUPERIOR COURT OF NEW JERSEY
Submitted October 20, 2008 – Decided
Before Judges Reisner and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FV-15-0648-08.
Defendant Thomas Guzenski appeals from an October 18, 2007 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm the court’s finding that defendant committed domestic violence within the meaning of the Act but vacate that portion of the order prohibiting defendant from possessing martial arts weapons and remand for further proceedings.
On September 25, 2007, plaintiff Jessica McAteer filed a complaint seeking the ex parte issuance of a temporary restraining order (TRO) against defendant, whom she had dated for a short period of time. Plaintiff alleged that after she discontinued the relationship, defendant engaged in acts of harassment by watching her, appearing at her house, walking up her street, bringing gifts to her children, and holding her down on his bed when she came to his home to request that he return money that was hers. Plaintiff also alleged that defendant called her crazy, a maniac, a slut, and a liar. The complaint identified martial weapons that defendant allegedly possessed as consisting of a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives, and nunchucks.
The matter was conferenced before a hearing officer, who recommended that the court issue a TRO. The court issued a TRO after taking testimony on the record that was limited, however, to plaintiff’s expressed concern that defendant possessed martial arts weapons. Based upon this testimony, the TRO included the issuance of a search warrant directing police to search defendant’s premises and seize any of the items described in the complaint for safekeeping.
On October 18, 2007, the court conducted a final hearing at which both parties appeared and were represented by counsel. Plaintiff testified that she and defendant started dating in early September and the relationship continued for a few weeks until September 23, when she broke off the relationship. On that date, she had gone to Atlantic City and called defendant to tell him that she wanted to talk to him. Upon her return, he picked her up at the bus station and, rather than taking her home as she requested, he took her to his residence, where they went to his bedroom and talked. While there, she questioned him about money she had left with him to deposit in her bank account. Defendant, however, pressed her for an explanation why she no longer wanted to be with him. When she attempted to leave, he grabbed her and held her down on his bed until his mother entered the room. Plaintiff testified that she then ran out of the room and left the house. The next day, defendant started text messaging her and making telephone calls to her at all hours of the day and night. He also sent e-mails to her and placed disparaging comments about her on a website known as MySpace. On cross-examination, she acknowledged that she responded to some of the e-mails and also admitted that in none of the text messages, e-mails, or telephone calls to her did he threaten her.
Plaintiff called her grandmother as a witness, who testified that plaintiff and plaintiff’s children lived with her. She recalled that police came to her home on September 24, at which time her granddaughter provided information to them about defendant. She testified that defendant called the house on September 25 and asked for plaintiff, and when she told him plaintiff was not there, he proceeded to ask her how she felt about the “fiasco” from the previous evening. When she asked him to what “fiasco” he was referring, he responded, “[W]ell, that’s okay. . . . [I]f Jessica wants to get dirty, I’ll get dirty too.” He told her that he would call the Division of Youth and Family Services (DYFS) and tell them that her granddaughter was on drugs, a stripper, and that her children sleep on the floor. Plaintiff’s grandmother testified that the next day, a representative from DYFS appeared at her home and the conversation she had with the representative was “almost verbatim what he [defendant] said to [her] on the phone. But [defendant] claim[ed] he didn’t call DYFS.”
Plaintiff’s next witness was the father of one of her children. He testified that defendant called him and they had a discussion for about one hour, during which he told defendant that he did not want him to “bring drama to the house where my baby lives.” He explained that he and defendant had been friends but that he had not talked to him in a long time. Defendant thereafter called him on two other occasions. Defendant told him that he was lonely. He invited defendant to his home and defendant accepted the invitation. On the final occasion when defendant called him, defendant asked whether he wanted defendant to contact DYFS “being that he [defendant] was upset with [plaintiff].” He also testified that he saw defendant around 5:30 p.m. on Sunday, September 23. He explained that he had gone to plaintiff’s home to drop off his daughter as he usually did every Sunday. While he and plaintiff were outside talking by his car, he saw defendant, who lived down the block from plaintiff. Defendant approached and the two of them spoke while plaintiff was in the house. When plaintiff came back outside, defendant handed her some movies that apparently belonged to her and that defendant was returning.
Defendant testified and acknowledged that he sent plaintiff text messages between September 24 and 25. He indicated that his purpose in doing so was to “return money and to speak with a friend.” According to defendant, when they broke up, he told plaintiff that he could not talk to her anymore but that she convinced him to be friends. He also testified that plaintiff “never told [him] once not to contact her or not to — if she would have told [him] to leave her alone, [he] would have gladly left her alone.” He denied that he grabbed plaintiff and held her down on his bed as plaintiff had testified, stating that he “never laid a finger on her ever.” He confirmed that he had martial arts weapons in his home, some of which were collectibles, but denied that he ever threatened to harm plaintiff with the weapons. He testified that the only time plaintiff would have seen him in actual possession of the weapons would have been while he was practicing martial arts. He explained that until the events before the court happened, he was preparing for a career in martial arts. Additionally, he admitted to placing thoughts about plaintiff on his MySpace account. Finally, defendant acknowledged that he had spoken with plaintiff’s grandmother. He described the telephone call as his effort to apologize for the “confusion” and “mess” but the conversation was cut short when plaintiff came on the phone.
At the conclusion of the testimony, the court made the following findings:
In this case the victim alleges that after she said enough, it’s over, the defendant refused to recognize that and continued to make communications by text message, by phone, by showing up at the home unannounced, by calling other people, by putting a blog in, I guess, on his My Space page, a reference on his MySpace.
The victim has been most emotional when she testified. Also testifying were two other witnesses, her grandmother and her friend. And she’s been crying, and she’s still crying as we speak now.
And she points out — and I have P-1 — a number of text messages that were sent at very inconvenient hours to her. And I’ve read the text messages and they speak for themselves. And I don’t need to go into each and every one of them, but there are certain text messages here that are chilling to the Court.
I saw a text message of an accident. Obviously, the defendant did not have an accident, and he did not deny this message.
“I thought you were different” is another one. “I guess the one of a kind shooting star was just for me, or I thought it was just for me. You hurt me so much. I’ve never shed a tear over a woman until you. Jessie, I’m sorry, but you hurt me so bad,” etc., “I hope it’s not too late. You don’t care about my feelings. I can’t believe I” — and the one that’s chilling is on September 23rd at 8:45 p.m. “I can’t believe I bought into your shit. You’re a lying cheater just like the rest. You get what you give. And I am way out of your league,” etc.
Now, defendant says he still wanted to be friends. If his idea of friendship is calling DYFS — and I do believe he called DYFS and I do believe the testimony of the grandmother that he threatened the grandmother that he was going to call DYFS. And that’s not one’s idea of friendship. And, clearly, he was looking for retribution. Clearly, these phone calls and text messages were not to give money back, which the money is still not returned, and could have obviously been put, simply put in the mail, but they were for a different reason. This was a jilted person who wanted his girlfriend back.
. . . .
The question — it’s a two-prong analysis. And the second prong is a restraining order now necessary to protect the victim. And I think that after a police officer speaks — and he’s acknowledged that the police officer came. He’s acknowledged that. And then recalled he could have. If the police officer says he did, he did; I don’t recall. On another occasion he said I don’t recall, he might have, he might have told me to leave her alone. And he still calls the grandmother and he still continues his conduct. And it’s dangerous conduct, and it’s putting the plaintiff in severe apprehension.
I see before me what looks like a mature young man, and sincerely sorry that he got involved in this, he got caught up in this. But I believe he did it.
The court entered an FRO prohibiting defendant from engaging in any future acts of domestic violence. The order also prohibited defendant from having any contact with plaintiff, her former spouse, her grandparents and children. Finally, the order prohibited defendant from possessing firearms and other weapons. The court advised defendant that its finding that defendant committed an act of domestic violence required “an automatic prohibition against owning any firearms or other weapons.” The present appeal followed.
On appeal defendant raises the following points for our consideration:
THE CASUAL, SHORT-TERM RELATIONSHIP BETWEEN MR. GUZENSKI AND MS. MCATEER DID NOT QUALIFY AS A “DATING RELATIONSHIP” UNDER NEW JERSEY’S DOMESTIC VIOLENCE PREVENTION ACT.
THE TRIAL COURT WRONGLY HELD THAT SEIZURE OF MR. GUZENSKI’S MARTIAL-ARTS COLLECTION WAS “AUTOMATIC” UPON ENTRY OF A DOMESTIC VIOLENCE FRO.
Defendant first argues that the allegedly casual, short-term relationship that existed between the parties is not the type of relationship the Act was designed to address for purposes of the issuance of a domestic violence restraining order. While there is no dispute that the dating relationship between plaintiff and defendant lasted less than one month, defendant did not raise this issue below and we therefore decline to address the matter on appeal. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the duration of the relationship is but one factor in determining whether a dating relationship exists. See Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003) (noting that other factors should be considered, including the quality and frequency of the “interpersonal bonding” between the parties; the parties’ expectations; how the parties interacted with others in terms of their relationship; and any other factors unique to the relationship that point to the existence of a dating a relationship within the meaning of the Act).
Defendant next contends that the court improperly held that seizure of defendant’s martial arts collection was “automatic.” Specifically, the court stated that “there is a prohibition that is attendant to this finding [of the commission of an act of domestic violence] . . . against owning any firearms or other weapons.” We agree the court erred in reaching this conclusion.
The question of whether the entry of an FRO is automatically accompanied by a provision in the order prohibiting a defendant from possessing any weapons is a question of law. In determining whether the trial court’s application of the law was correctly applied here, we accord no special deference to its legal conclusions. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
N.J.S.A. 2C:25-29(b)(16) provides that in addition to entering an order prohibiting a defendant found to have committed an act of domestic violence from possessing any firearm, a “court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1.” (emphasis added). Plaintiff claimed that defendant possessed martial arts weapons consisting of a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives, and nunchucks. Although martial arts items are not specifically identified as weapons in N.J.S.A. 2C:39-1, we are satisfied that the definition of “weapon” contained in this section as, “anything readily capable of lethal use or of inflicting serious bodily injury,” includes martial arts equipment. Ibid. Thus, the entry of an order permanently prohibiting defendant from possessing martial arts weapons is the type of relief a court is expressly permitted to grant under the Act. However, as the language of the Act makes clear, such a prohibition is permissive, not mandatory. N.J.S.A. 2C:25-29(b)(16). Because the court believed forfeiture of the martial arts collection was automatic, it made no findings that defendant’s continued possession of the martial arts collection would pose a threat to plaintiff or others. We are therefore constrained to vacate that portion of the FRO prohibiting defendant from possessing his martial arts collection.
In summary, beyond challenging whether the parties engaged in a dating relationship as contemplated under the Act and challenging the automatic prohibition against possessing martial arts weapons, defendant raises no further challenges to the court’s findings. We are satisfied that there is substantial credible evidence in the record to support the court’s finding that defendant committed a domestic violence offense and that an FRO was necessary to protect plaintiff. Silver v. Silver, 387 N.J. Super. 112, 128 (App. Div. 2006). We defer to those findings. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), (holding a trial court’s findings of fact “are binding on appeal when supported by adequate, substantial, credible evidence.”) However, we vacate that portion of the FRO prohibiting defendant from possessing his martial arts collection and remand to the trial court for further proceedings to determine whether defendant should be permanently prohibited from possessing martial arts weapons.
Affirmed in part, vacated in part. We do not retain jurisdiction.
January 21, 2009
Our main site is located here.