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.”
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