IN THE MATTER OF THE APPEAL FOR THE DENIAL OF A PERMIT TO PURCHASE A HANDGUN OF D.A. (MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1013-17T3
IN THE MATTER OF THE
APPEAL FOR THE DENIAL
OF A PERMIT TO PURCHASE
A HANDGUN OF D.A.
__________________________
Submitted February 25, 2019 – Decided March 11, 2019
Before Judges Haas and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County.
Evan F. Nappen, PC, attorneys for appellant Daniel
Anderson (Louis P. Nappen, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent State of New Jersey
(Lisa Sarnoff Gochman, of counsel and on the brief).
PER CURIAM
Appellant D.A. appeals from the September 22, 2017 Law Division order
upholding a municipal police chief's denial of his application for a New Jersey
Firearms Purchaser Identification Card (FPIC) and a handgun purchase permit.
We affirm.
Appellant filed his application on June 26, 2014. As part of his
application, appellant completed the Consent for Mental Health Records Search
form required by the State Police. Chief of Police R. Craig Weber assigned
Detective Anthony Dellatacoma to conduct appellant's background
investigation.
During his investigation, Detective Dellatacoma obtained appellant's
school and available psychological records. These records revealed that in 1999,
when appellant was eight years old, he threatened to kill his teacher, other
students, and the school principal. A police officer was called to the school and,
while he and appellant were in the school nurse's office, appellant lunged for the
officer's firearm, and grabbed it by the handle. The officer had to pry appellant's
hand off of the weapon. The officer also learned that appellant had bitten a
teacher on a prior occasion. The police did not take appellant into custody, and
did not file any juvenile charges against him.
In 2005, appellant engaged in a fight in a high school classroom. The
charges were referred to a juvenile referee for disposition, and appellant
successfully completed a diversionary program.
While he was in high school, a psychologist prepared a written evaluation
of appellant as part of his Individualized Education Plan, which classified
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appellant as "Other Health Impaired." The psychologist reported that appellant
was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and
Intermittent Explosive Disorder in 1998. A 1999 evaluation revealed that
appellant suffered from severe ADHD, Expressive Language Disorder, and early
Bipolar Disorder or a primary thought disorder. The report stated that appellant
was "At Risk" in three areas: (1) Attitude to Teachers; (2) Sensation Seeking;
and (3) Hyperactivity. Appellant reported "a preference for engaging in
behaviors that are generally considered by others as risky, and can be
hazardous," and revealed that he engaged "in a number of restless and disruptive
behaviors."
In January 2012, appellant was working as a vacuum cleaner salesperson.
He refused to leave a customer's home after a scheduled appointment, and the
customer had to call the police to get him to end the sales call.
While appellant's application was pending, appellant went to the police
station and spoke to an officer about an unregistered, uninsured car he was
keeping on his property that he hoped to restore. 1 During that conversation,
appellant asked the officer whether it was legal to paint a large hand with the
middle finger sticking up on the car because he hated his neighbors and wanted
1
Chief Weber had given appellant six months to make the necessary repairs.
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to express his frustration with them for having lodged a complaint with the
police about the car. Appellant later claimed that he made this inquiry as a joke.
Based upon this "series of disturbing antisocial behavior," Chief Weber
concluded that granting appellant a FPIC and a handgun purchase permit "would
not be in the interest of the public health, safety or welfare" under N.J.S.A.
2C:58-3(c)(5). Appellant filed an appeal to the Law Division, and the trial judge
conducted a de novo hearing at which Chief Weber and appellant testified.
In preparation for the hearing, appellant conferred with a psychologist,
who prepared a report in which she concluded that appellant "has no psychiatric
disorders at this time." As part of her evaluation, however, the psychologist did
not review any of appellant's prior psychological reports or records. Instead, the
report was based solely on information appellant self-reported to the
psychologist. As Chief Weber noted in his testimony, appellant failed to
disclose the incident at the customer's home to the psychologist, and glossed
over the school incidents, where he bit a teacher, threatened to kill students, and
attempted to grab a police officer's firearm. 2
2
The Chief also testified that after appellant filed his application, two of
appellant's siblings, who lived in their parents' home with him, were arrested for
possession and distribution of controlled dangerous substances that were found
in the home.
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At the conclusion of the hearing, the judge rendered a thorough written
opinion and found that in light of appellant's past behavior, giving appellant a
FPIC and a handgun permit "would not be in the interest of the public health,
safety or welfare" under N.J.S.A. 2C:58-3(c)(5). The judge explained:
Here, [appellant] has been diagnosed with several
mental health disorders. A psychological evaluation
revealed that [appellant] reported "a preference for
engaging in behaviors that are generally considered by
others as risky, and can be hazardous." [Appellant] also
revealed that he engages "in a number of restless and
disruptive behaviors." At eight-years-old, [appellant]
threatened to kill his teacher, other students, and the
school principal. [Appellant] also firmly grabbed the
handle of a police officer's firearm while in the school
nurse's office. At [fourteen] years old, [appellant]
engaged in a fight with a classmate, leading to a
complaint being filed against him. Most recently,
[appellant] was involved in an incident at a client's
home resulting in police responding to the scene.
Although [the psychologist who prepared a post-
application report for appellant] noted in her report on
June 15, 2017 that in her opinion [appellant] does not
have a psychiatric disorder, she did not have available
to her any of [appellant's] past mental health records.
[Appellant] has shown a propensity to engage in
questionable behavior. As recently as June 15, 2017,
[appellant] asked a police officer if he could paint a
large middle finger on a vehicle because he hates his
neighbors. Although [appellant] has not been involved
in any violent incidents since a fight in high school, the
presence of a firearm enhances the potential that
[appellant's] behavior could result in a lethal incident.
Based on [appellant's] mental health diagnoses and his
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past behavior, the [c]ourt finds that issuing a permit to
[appellant] would put the public health, safety, and
welfare at risk.
This appeal followed.
On appeal, appellant raises the following contentions:
POINT 1
THE COURT BELOW ERRED BECAUSE
ISSUANCE OF FIREARM PURCHASE PERMITS
ARE BASED ON PRESENT CONDITION, AND
APPELLANT HAS NO PRESENT DISQUALIFYING
CONDITION.
POINT 2
IT REMAIN[S] UNREBUTTED THAT APPELLANT
HAS NO PRESENT MENTAL HEALTH ISSUE, AND
THE COURT BELOW ERRED BY SUBSTITUTING
ITS OWN OPINION FOR THAT OF THE MENTAL
HEALTH PROFESSIONAL.
POINT 3
APPELLANT WAS DENIED DUE PROCESS IN
OFFENSE TO N.J.S.A. 2C:58-3(f) AND IN RE
FIREARMS PURCHASER ID BY Z.K. (Not raised
below).
POINT 4
THE COURT BELOW ERRED BY DENYING
APPELLANT HIS SECOND AMENDMENT RIGHTS
BECAUSE HE INQUIRED ABOUT HIS FIRST
AMENDMENT RIGHTS OR EXERCISED HIS FIRST
AMENDMENT RIGHTS.
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POINT 5
THE COURT BELOW ERRED IN FINDING THAT
THIS APPLICATION DOES NOT CONCERN THE
SECOND AMENDMENT, AND APPELLANT
SHOULD NOT BE DENIED HIS FUNDAMENTAL,
INDIVIDUAL, CONSTITUTIONAL RIGHT TO
KEEP ARMS FOR A REASON THAT DOES NOT
RISE ABOVE RATIONAL BASIS, IS VAGUE
AND/OR OVERBROAD, CONSTITUTES AN
UNCONSTITUTIONAL BALANCING-TEST, AND
DOES NOT PROVIDE A DUE PROCESS FORM OF
REDRESS.
a. The Court below erred by not basing its finding
upon a longstanding prohibition on the
possession of firearms, and by applying mere
rational basis review to deny appellant his
individual, fundamental right.
b. "In the interest of public health, safety or
welfare" is unconstitutionally vague or
overbroad.
c. "In the interest of public health, safety or
welfare" provides unconstitutional Due Process
notice and provides no Due Process form of
redress. (Not raised below).
d. "In the interest of public health, safety or
welfare" does not pass heightened scrutiny
generally and as applied below as it constitutes a
mere unconstitutional interest-balancing test.
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We conclude that appellant's contentions are without sufficient merit to
warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).3
Therefore, we affirm substantially for the reasons set forth in the trial judge's
comprehensive written decision. We add the following comments.
We are bound to accept the trial court's fact findings if they are supported
by substantial credible evidence. In re Return of Weapons to J.W.D., 149 N.J.
108, 116-17 (1997). However, we exercise de novo review over the trial court's
legal determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun
and a FPIC to any person of "good character and good repute" who is not subject
to any of the enumerated exceptions. The statute provides that "[n]o handgun
purchase permit or [FPIC] shall be issued: . . . [t]o any person where the issuance
would not be in the interest of the public health, safety or welfare." N.J.S.A.
2C:58-3(c)(5).
"[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.
3
In Point Six of his brief, appellant also requests that we use initials to refer to
appellant in this opinion. We do so as a matter of course in matters of this
nature.
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Super. 502, 511 (App. Div. 1982). 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) (quoting Burton v. Sills, 53 N.J. 86, 91 (1968)).
Applying these standards, we are satisfied that the judge's findings were
based upon appellant's undisputed past questionable behavior as revealed b y the
standard background check, and the testimony presented at the de novo hearing .
Therefore, we decline to second-guess the judge's conclusion that granting
appellant's application "would not be in the interest of the public health, safety
or welfare." N.J.S.A. 2C:58-3(c)(5).
We also reject appellant's argument that the judge erred by substituting
his own opinion for that of the psychologist who prepared the March 2017
report. Contrary to appellant's contention, the judge was not required to blindly
accept the psychologist's opinion, especially in light of her failure to review any
of appellant's records, and appellant's own decision to downplay his past
incidents of questionable behavior in his statements to the psychologist. See
Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002) (noting that "[a]
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trial court is free to accept or reject the testimony of either side's expert," in full
or in part).
Finally, we conclude that appellant's constitutional arguments are
meritless, noting our discussion in In re Winston, 438 N.J. Super. 1, 10 (App.
Div. 2014). See also In re Forfeiture of Pers. Weapons & Firearms Identification
Card Belonging to F.M., 225 N.J. 487, 506-08 (2016) (explaining the limitations
on the right to possess firearms).
Affirmed.
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