In the Matter of the Denial for a New Jersey Firearms purchaser Identification Card and Permit to Purchase a Handgun by Z.K. ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5851-12T1
APPROVED FOR PUBLICATION
IN THE MATTER OF THE DENIAL
FOR A NEW JERSEY FIREARMS May 14, 2015
PURCHASER IDENTIFICATION CARD
AND PERMIT TO PURCHASE A HANDGUN APPELLATE DIVISION
BY Z.K.
__________________________________
Submitted September 23, 2014 – Decided May 14, 2015
Before Judges Fisher, Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County.
Evan F. Nappen, attorney for appellant Z.K.
(Louis P. Nappen, on the brief).
Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent State of
New Jersey (Brian D. Gillet, Deputy First
Assistant Prosecutor, of counsel and on the
brief; Matthew P. Tallia, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Z.K. applied for a firearms purchaser identification card,
N.J.S.A. 2C:58-3b, and a permit to purchase a handgun, N.J.S.A.
2C:58-3a. The East Brunswick Police Department denied both
because of his "incomplete application." Pursuant to N.J.S.A.
2C:58-3d, Z.K. requested a hearing in the Superior Court, and
the court upheld the denials on the ground that Z.K. refused to
complete an additional form required by East Brunswick that the
court found did not "add[] anything to the [Superintendent of
the Division of State Police's] form or the requirements of
Chapter 58." Z.K. now appeals from that order. We reverse.
In the Law Division, the State contended that Z.K.'s
failure to complete the "Certification of Juvenile Record"
required by the East Brunswick Police Department rendered his
application incomplete and justified the department's denial of
the permits. The State presented the testimony of the detective
sergeant charged with investigating Z.K.'s application.
According to the officer, the first thing he did upon
receipt of an application was to review it for completeness
before proceeding. Upon ascertaining that Z.K. had not
completed the department's juvenile record form, he telephoned
Z.K. who confirmed he would not be submitting the form.1 The
officer discontinued the processing of Z.K.'s application and
recommended to the captain responsible for gun permits that
Z.K.'s application be denied. The captain thereafter wrote to
1
Z.K.'s counsel submitted the application for the permits to the
police department. In his cover letter, counsel expressed his
understanding that the department requested firearm permit
applicants to complete the juvenile record form. Relying on
N.J.S.A. 2C:58-3f, counsel advised that "[Z.K.] will not be
submitting any additional municipal form(s) or certifications
with his permit application."
2 A-5851-12T1
Z.K. advising that the permits had been denied on the basis of
the incomplete application.2
On cross-examination, the officer acknowledged the juvenile
record form requires an applicant to include his name, date of
birth, and social security number; to confirm that he has never
"pled guilty or been found guilty of any offense committed as a
juvenile that has not been expunged"; to list the date, type of
charge, town and county where any offense was committed; to sign
the form; and to have a witness sign the form.3 He agreed with
counsel's characterization of the form as "merely duplicative"
of the information required by question 18 on the
superintendent's form, which asks, "Have you ever been adjudged
a juvenile delinquent? If yes, list date(s), place(s) [and]
offense(s)." The officer also acknowledged that the department
had already run a juvenile records' check on Z.K. at the point
2
The officer testified that East Brunswick's police chief
delegated his responsibilities in the issuance and denial of gun
permits to the highest ranking captain in the department. Z.K.
contends that the captain was without authority to deny the
permits pursuant to N.J.S.A. 2C:58-3d and Weston v. State, 60
N.J. 36, 45 (1972). Our disposition of the appeal makes it
unnecessary to address this point or Z.K.'s other additional
grounds for reversal of the order on review.
3
The State stipulated that the juvenile record form was not a
State Police form.
3 A-5851-12T1
it determined to deny his application and was aware he had no
juvenile record.4
After hearing the testimony, the court concluded East
Brunswick's juvenile record form was duplicative of question 18
on the superintendent's form. Posing the question as "whether
it's appropriate . . . for a law enforcement agency to ask
somebody to answer the same thing twice," the court found no
violation of N.J.S.A. 2C:58-3(f) because the applicant was not
being asked for "[s]omething additional. . . . This is the
exact same thing, it's just simply being asked twice."
Ultimately, the court ruled it was denying the appeal on the
same basis that the East Brunswick police had denied the permit
— that Z.K.'s failure to complete the certification rendered his
application incomplete.
We review a trial court's legal conclusions regarding
firearms licenses de novo. In re Sportsman's Rendezvous Retail
4
Although the record on this point is not clear, it would appear
that Z.K. had certain juvenile records expunged in 1999,
including one relating to unlawful possession of a weapon. The
department apparently received the records from the Clark Police
Department which denied Z.K.'s applications for a firearms
purchaser identification card and a permit to purchase a handgun
in 1994 and 1998. N.J.S.A. 2C:58-3c(7) precludes a person "who
as a juvenile was adjudicated delinquent for an offense which,
if committed by an adult, would constitute a crime and the
offense involved the unlawful use or possession of a weapon"
from obtaining a firearms purchaser identification card or
permit to purchase a handgun.
4 A-5851-12T1
Firearms Dealer's License, 374 N.J. Super. 565, 575 (App. Div.
2005). Having reviewed the record, we agree with Z.K. that the
trial court erred in finding East Brunswick's insistence on the
added municipal form within the letter and spirit of N.J.S.A.
2C:58-3. Although perhaps not in conflict5 with the
superintendent's form, the department's additional form is
contrary to the plain meaning of subsections e and f of N.J.S.A.
2C:58-3.
N.J.S.A. 2C:58-3e provides that "[a]pplications for permits
to purchase a handgun and for firearms purchaser identification
cards shall be in the form prescribed by the [S]uperintendent
[of the Division of State Police]," and sets forth the
information to be included in the application. The statute
mandates that "[a]pplication blanks shall be obtainable from the
superintendent, from any other officer authorized to grant such
5
The wording of the department's form makes unclear the
information actually sought from the applicant and thus whether
it is redundant of the superintendent's form. The form asks the
applicant to confirm that he has never "pled guilty or been
found guilty of any offense committed as a juvenile that has not
been expunged." Juveniles prosecuted in the Family Part cannot
plead to or be found guilty of an "offense"; they are
adjudicated delinquent based on conduct that would constitute a
crime, a disorderly persons offense or petty disorderly persons
offense or a violation of any other penal statute, ordinance or
regulation if committed by an adult. See N.J.S.A. 2A:4A-23.
The wording could suggest that rather than requesting
information about juvenile adjudications, East Brunswick's form
seeks information about convictions of a juvenile who was waived
up for prosecution as an adult. See N.J.S.A. 2A:4A-26.
5 A-5851-12T1
permit or identification card, and from licensed retail
dealers." N.J.S.A. 2C:58-3e. N.J.S.A. 2C:58-3f requires that
"[t]here 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."
The Legislature's command that applications be in the "form
prescribed" by the superintendent and obtainable from the State
Police, local law enforcement and licensed retail dealers and
that "no conditions or requirements [be] added to the form or
content" of that application precludes an interpretation that
would allow the hundreds of municipal police departments in this
State to develop applications supplementing the form promulgated
by the Superintendent of the Division of State Police. See
DiProspero v. Penn, 183 N.J. 477, 492-94 (2005). That East
Brunswick is charged with investigating "the application to
determine whether or not the applicant has become subject to any
of the disabilities" set forth in N.J.S.A. 2C:58-3c does not
give it license to do so by means expressly prohibited by
6 A-5851-12T1
subsections e and f, namely supplementing the superintendent's
application form.6 See N.J.S.A. 2C:58-3e and f.
Nor can we accept the trial court's interpretation that
only municipal forms seeking information beyond that required by
the superintendent's form or authorized by subsection e are
interdicted. To do so would allow municipal police departments
to deny permits to purchase a handgun and firearms purchaser
identification cards to individuals who have completed the
prescribed application form and are under no statutory
disability, a result clearly not intended by the Legislature.
See N.J.S.A. 2C:58-3c. East Brunswick may not burden an
applicant with redundant requirements any more than it may
impose conditions or requirements not authorized by the
Legislature or the Superintendent of the Division of State
Police.
Because the court's ruling to reject Z.K.'s challenge was
based solely on his failure to complete the invalid application
form, we reverse and remand for entry of an order directing the
Chief of Police of East Brunswick to complete his investigation
and, unless good cause for the denial thereof appears, grant the
6
If the police chief in East Brunswick or any other municipality
is of the view that the superintendent's form is inadequate, the
remedy is not to promulgate an additional form but to address
the need for changes either directly with the superintendent or
with the Attorney General through the county prosecutor.
7 A-5851-12T1
permit and the identification card in accordance with N.J.S.A.
2C:58-3f within thirty days from the date of receipt of the
court's order. The court may require Z.K. to provide any
additional information made necessary by the passage of time to
make his application complete and accurate.
Reversed and remanded for further proceedings in conformity
with this opinion. We do not retain jurisdiction.
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