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Evan Nappen

Evan Nappen

Eatontown, NJ - -(Ammoland.com)- On April 28, 2014, a three-judge Appellate Division panel unanimously agreed that Jersey City Police wrongfully required resident Michael McGovern to complete questions on four added municipal forms and to provide other information beyond the scope of the firearm licensing statute, and that the Law Division erred in denying McGovern his permits based upon his refusal to provide such additional information. (See attached Decision below)

When McGovern applied for his firearm purchase permits, he provided all State-mandated forms and answered all questions required under the law. The State-mandated materials consist of only a State Police Application Form (S.T.S. 033), a Consent for Mental Health Records Search (S.T.S. 66), and completion of a criminal background check. Firearm permitting procedures are governed by State and Federal law, and McGovern stood by what he believed were his statutory and constitutional rights.

Jersey City Police, however, denied McGovern, alleging that he was a “threat to public health, safety and welfare” and had not demonstrated “good repute within the community” because he refused to complete Jersey City’s added forms or provide information regarding alleged, old out-of-state arrests that did not result in conviction.

McGovern is a licensed real estate broker and non-practicing attorney with no disqualifier to receiving a firearm permit. He has no felony or disorderly person convictions, no juvenile delinquency convictions, no mental health, drug or alcohol issues, no restraining order issues, etc.

Despite the fact that New Jersey’s State Police forms do not require disclosure of mere arrests, and mere arrests do not constitute a per se disqualifier to firearm possession, Hudson County Superior Court Judge Frederick J. Theemling, Jr., agreed with Jersey City, and denied the permit.

McGovern the hired the law firm of Evan F. Nappen Attorney at Law PC to appeal, and Louis P. Nappen, attorney of that firm, handled the appeal for McGovern.

The Appellate Division reversed and remanded the matter based upon Nappen’s arguments that: (1) Jersey City is expressly preempted by NJSA 2C:58-3 from demanding information from an applicant that is not required by that statue, and that (2) Jersey City and the court inappropriately shifted the burden of proof to McGovern to prove his entitlement to a handgun permit.

N.J.S.A. 2C:58-3(f) states: “There shall be no conditions or requirements added to the form or content of the application, or required by the licensing authority for the issuance of a permit or identification card, other than those that are specifically set forth in this chapter.”

Despite the above Jersey City demanded that applicants provide, among other things: “Auto Plate Number,” “Previous Addresses,” “Previous Employer,” “names and ages of all people who reside in your household,” household members’ present and previous domestic records, an “Authorization Waiver to Release Information” that would “authorize the release of any and all information” to the police, a signed Release that would relieve all persons from liability that may result from furnishing information about the applicant, as well as other additional certifications and questions. (See attached forms: http://tiny.cc/t2k1ex )

The Court accordingly found: “Thus, much of the information requested by Jersey City is neither required by the State Police application forms nor by any of the provisions of N.J.S.A. 2C:58-3. Requiring that information is contrary to the directive of subsection (f) that the licensing municipality cannot impose conditions or requirements beyond those established by the Legislature or contained in the State Police Superintendent’s application forms…. Jersey City was not authorized to expand the information McGovern was required to supply beyond that included in the statute and in the State Police application forms.”

In response to the decision, Louis Nappen said, “For years, we have been arguing that Jersey City’s and other municipalities’ added forms and additional conditions or requirements for a mere permit to purchase are illegal. Several times, in fact, I have personally argued this exact point before Judge Theemling in other Hudson County and Jersey City permit matters and he has consistently refused to require that the cities change their procedures. I am beyond glad that the Appellate Division has finally declared that Jersey City’s added questions, releases and burden shifting is offensive to the law and not a valid reason to deny this presumptively-issued permit.”

The Appellate Division also noted, “The judge repeatedly declined to allow [McGovern] to present evidence supporting his attempted legal argument that Jersey City had demanded unauthorized information as part of the application” and would not allow McGovern to cross-examine Ret. Jersey City Police Capt. Andrew Brusgard (who appeared on behalf of the State) “about his qualifications to determine who may receive a handgun permit or his knowledge of the law in that regard.”

The Appellate Division found that the Court below appeared to wrongfully reverse the burden, and vindicated the applicant: “We find no evidence of such a threat and bad character in McGovern’s expression of legal positions and arguments based on his understanding of constitutional and legal rights.”

Nappen continued: “Added municipal requirements squash civil rights the same way that some towns used to squelch blacks, gays, foreigners, or women from voting or getting governmental aid by implementing local writing requirements or poll taxes, or simply by denying certain folks civil respect by requiring that they ride in the back of a bus. Persons deserve equal treatment under the law. New Jerseyans should be treated the same across the state when it comes to exercising their Second Amendment and any statutory rights or privileges.”

This decision comes hot on the heels of the Law Firm’s Perez decision, where the Appellate Division similarly found that Patterson wrongfully required applicants to supply an added form and Passport photo(s).

“These decisions,” said Nappen, “put police departments and judges on notice that breaches of due process and wrongful denials based upon superfluous demands will not stand.”

About:
Evan Nappen (www.EvanNappen.com) is a criminal defense attorney who has focused on New Jersey firearms and weapons law for over 23 years. He is the author of the New Jersey Gun Law Guide. Visit his website at www.EvanNappen.com

New Jersey McGovern Opinion

  • 13 User comments to “Jersey City’s Extra Gun Forms Ruled Offensive to New Jersey Law”

    1. AnArmedAttorney on April 28, 2014 at 5:09 PM said:

      I win. Just like I told Brusgard I would back in 2011. Big thank you to Louis Nappen for making this happen. Heard they’re planning to appeal. Good. Let the State Supreme smack them down too!

    2. KUDOS TO MR. MCGOVERN FOR HIS WIN against Jersey City.

      Michael McGovern prevails over Jersey City’s *ILLEGAL* additional forms. Why is it that the NJ courts REFUSE to call it what it is. When a city official breaks the law, it is as MUCH of a CRIME (EVEN MORE SO) than it is if an individual does so. Yet the court has the UNMITIGATED GALL to state:

      “We do not conclude in this decision that Jersey City’s inquiries were unreasonable or made in bad faith,” reads the 21-page ruling, released today. “However, the Legislature or the Superintendent of the State Police must authorize any requirement or condition for issuance of a handgun permit that goes beyond the terms of the statute and the State Police.”

      So, let me see if I have this right. NEW JERSEY FIREARMS STATUTES *CLEARLY* state that the authorities of Jersey City may *NOT* DENY AN INDIVIDUAL’S HUMAN RIGHTS on the basis of *ILLEGAL*, unauthorized forms and requirements, but that’s OK, because we LIBERAL JUSTICES WHO HAVE *NO* REGARD FOR THE LAW happen to *PERSONALLY* agree with denying INDIVIDUAL HUMAN RIGHTS. Is that about right????

      Well, if “…the Legislature or the Superintendent of the State Police must authorize any requirement or condition for issuance of a handgun permit that goes beyond the terms of the statute and the State Police.”, then *WHY* isn’t the Jersey City Chief of Police guilty of official misconduct? Why isn’t the Hudson County Prosecutors office looking into bringing him up on charges? Perhaps it is because the COURTS of NJ cannot be TRUSTED to adjudicate these cases fairly!

      DISGUSTING!!! Where is the New Jersey Attorney General

    3. Glad to see a win against unreasonable and illegal regulation. But wait – a win? Maybe. But how about the cost of litigation against repeated illegal regulations even a moron could see? Who pays for that? The criminals known as the Jersey City regulators or the first judge that let them get away with repeated illegal acts? Just a guess but my guess is that there have been no penalties and there will not be any penalties against the REPEATED ILLEGAL ACTS of those in Jersey City. Surprise, surprise.

      So tell me Mr. Nappen, just how does this correct decision “put police departments and judges on notice that breaches of due process and wrongful denials based upon superfluous demands will not stand.” BTW, just how much time and money was spent overturning repeated illegal acts / “decisions” by criminals in Jersey City? A win?

    4. Capn Jack on April 29, 2014 at 11:55 AM said:

      A win? And after how many months?
      Show us your CCL. Sounds like all you got was an expensive reshuffle of legal B.S.

    5. askeptic on April 29, 2014 at 12:47 PM said:

      Yes, a WIN will be when they issue the license, and pay all of your legal fees that they have caused.

    6. Criminal charges of “Official oppression under the color of authority” should be made. Hold these petty, tyrannical threats against a civil and JUST society accountable and put their rectums in jail!!!

    7. Congrats Michael McGovern on the rightful win. It’s enough that NJ residents need to jump through all the state required hoops, it is offensive that each township wants to unlawfully require additional forms…

      It just makes me want to sue Kearny PD for taking a photo of me when I received my handgun permit…

    8. MontieR on April 29, 2014 at 2:19 PM said:

      None of these rules, regulations or laws can stand against, “SHALL NOT BE INFRINGED”. The supreme injustices be damned.

    9. Thom Paine on April 29, 2014 at 2:47 PM said:

      New Jersey? Hell as far as Im concerned thats occupied territory,and not even part of the United States. Well at least not until we take it back and hang the politicians . Kudos on the win but you couldnt pay me enough to even visit.

    10. James Andrews on April 29, 2014 at 9:54 PM said:

      It’s sad how bad things have gotten down there. I grew up there, but moved away many years ago. AT least I live in a state who’s gun laws are quite reasonable, and we can have carry permits up here, as long as we are law abiding citizens and take the appropriate steps. I feel bad for the good citizens in this corrupt state. The criminals/gangs are armed to the teeth, but it’s almost impossible for law abiding citizens to get a carry permit down there. Sad…..

    11. Government officials should liable under both criminal and civil actions, when they knowingly and willfully add requirements, not specifically addressed within the actual text of those laws upon which the requirements are based.

    12. JACK CARROLL on April 30, 2014 at 6:19 AM said:

      YOU HANG IN THERE! I FIRMLY BELIEVE WE ARE SLOWLY TURNING THE GUN ISSUE AROUND. POLITICIANS, LIKE BABY DIAPERS, NEED TO BE CHANGED ON A REGULAR BASIS, AND USUALLY FOR THE SAME REASON!

      JUST MY HUMBLE OPINION,
      GOD BLESS

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