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.
While forfeiture cases are nothing new in New Jersey, it seems to me that they are increasing in number. I first really noticed it when I had a client who filed a restraining order against his wife. At the hearing date, she announced that she wanted to file one against him. Since this was clear retaliation, we easily won. His temporary restraining order was converted into final restraining order and her TRO was dismissed.
So, now that we won, it was time to get his guns back. The prosecutor informed me that she would still be moving to forfeit them. My response was, wait, he’s the victim and you still want his guns? Another client just hired me with a similar situation. He gave his guns to the police for safe keeping while the TRO situation was sorted out. They didn’t even want them. Nevertheless, the State is now moving to forfeit all of his firearms even though the TRO was dismissed.
Another problem is what happens when firearms are seized due to a TRO but they belong to a third party that is not involved in the TRO hearing? In the past, it was rather easy to get them back. However, I think we will see the State looking for any reason to take them.
Here’s the worst part. The State doesn’t have to meet any standard of proof before they make a motion for forfeiture. Thus, you are not only put on the defense but you are in a position where you have to prove that you should get your own guns back. Crazy huh? Something needs to be done about this. Maybe a few law suits against the State for filing frivolous actions will stop this.
Two clients called me up today to appeal their denial of their purchase permits. They are good examples of permits that should have been approved. The first client says that his application has been pending for 3 years! The longest that I have heard of is around 18 months. At some point during this ordeal, he got into an argument with his wife and she told the police to deny his application. Months later, she changed her mind. Apparently, the police thought she was coerced into making this statement and denied him anyway. What a bunch of garbage huh?
The next guy had a criminal charge from many years ago that was dismised. He applied for a permit and was denied. When he appealed, the judge asked him why he needed a gun and the guy didn’t have a good answer, so the judge denied it. Of course, the burden is not on you to prove why you want to exercise your rights. He applied again and was denied again.
Both men now have to either give up or spend much more money on appeal than it would have cost if they would have hired an attorney to begin with. Thus, I view this as such a waste of time and money.
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.
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.
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.
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.
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.
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.
I don’t suggest you do this, but I thought I’d share this story.
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
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.