IN THE MATTER OF THE APPEAL OF THE DENIAL OF A NEW JERSEY PERMIT TO CARRY A HANDGUN IN THE NAME OF DOUGLAS F. CIOLEK, ESQ. (L-0017-22, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-3510-17T2
IN THE MATTER OF THE
APPEAL OF THE DENIAL OF
DOUGLAS F. CIOLEK'S
APPLICATION FOR A FIREARMS
PURCHASER.
_______________________________
Submitted January 16, 2019 – Decided February 1, 2019
Before Judges Fuentes and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0017-22.
Douglas F. Ciolek, appellant pro se.
Frederic M. Knapp, Morris County Prosecutor, attorney
for respondent State of New Jersey (Paula C. Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Appellant Douglas F. Ciolek appeals from a March 14, 2018 Law Division
order affirming the Township of Denville Police Department's rejection of his
application for a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4(c) and
denying his summary judgment motion for an order declaring N.J.S.A. 2C:58 -
4(c) and (d) and N.J.A.C. 13:54-2.4(d) unconstitutional. On appeal, Ciolek
argues that the "justifiable need" requirement for a permit to carry a handgun
violates the Second Amendment of the United States Constitution and Article I,
paragraph 1, of the New Jersey Constitution. Finding no merit to Ciolek's
contentions, we affirm.
To obtain a New Jersey permit to carry a firearm, an applicant must
"demonstrate[] that he [or she] is not subject to any of the disabilities set forth
in [N.J.S.A.] 2C:58-3(c), that he [or she] is thoroughly familiar with the safe
handling and use of handguns, and that he [or she] has a justifiable need to carry
a handgun." N.J.S.A. 2C:58-4(c); see also N.J.S.A. 2C:58-4(d). In November
2017, the Denville Police Chief denied Ciolek's application for a permit to carry
a handgun because Ciolek did "not demonstrate a justifiable need to carry a
firearm in the State of New Jersey." Ciolek appealed the denial to the Law
Division and filed a summary judgment motion requesting an order declaring
that the statutory justifiable need requirement and regulation 1 requiring evidence
of justifiable need violate the United States and New Jersey constitutions.
1
In pertinent part, N.J.A.C. 13:54-2.4(d) requires that a private citizen's
application for a permit to carry a handgun include a "a written certification of
justifiable need to carry a handgun . . . detail[ing] the urgent necessity for self-
protection, as evidenced by specific threats or previous attacks, which
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Following argument, the Law Division rendered a detailed oral opinion
affirming the denial of Ciolek's carry permit application and denying his
summary judgment motion. The court entered an order and this appeal followed.
On appeal, Ciolek presents the following arguments for our consideration:
POINT I
THE COURT ERRED BY FINDING THAT THE
JUSTIFIABLE NEED PROVISIONS OF N.J.S.A
2C:58-4(c) & (d) and N.J.A.C. 13:54-2.4(d) DO NOT
VIOLATE THE SECOND AMENDMENT OF THE
UNITED STATES CONSTITUTION[.]
A. THE SECOND AMENDMENT IS AN
IN[DI]VIDUAL RIGHT THAT APPLIES TO NEW
JERSEY LAWS[.]
B. THE SECOND AMENDMENT RIGHT TO KEEP
AND BEAR ARMS APPLIES IN NON-SENSITIVE
PUBLIC AREAS WITHIN NEW JERSEY[.]
C. ASSUMING A PROPER STANDARD OF
REVIEW IS EVEN NECESSARY, N.J.S.A. 2C:58-
4(c) & (d) and N.J.A.C. 13:54-2.4(d) VIOLATE THE
SECOND AMENDMENT OF THE UNITED STATES
CONSTITUTION[.]
i. IF NECESSARY, THE STANDARD OF REVIEW
SHOULD BE DERIVED FROM THE EXPRESS
LANGUAGE OF THE SECOND AMENDMENT[.]
demonstrate a special danger to the applicant's life that cannot be avoided by
means other than by issuance of a permit to carry a handgun."
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ii. IF THE COURT REJECTS SUB-POINT i, THEN
ORDINARY STRICT SCRUTINY SHOULD APPLY,
NOT INTERMEDIATE SCRUTINY[.]
a. UNITED STATES SUPREME COURT
PRECEDENT AND OTHER FEDERAL CASE LAW
REQUIRE STRICT SCRUTINY[.]
b. NEW JERSEY SUPREME COURT CASE LAW
REQUIRES A STRICT SCRUTINY ANALYSIS[.]
c. THE PROSECUTOR'S RELIANCE ON THE NEW
JERSEY CASES OF WHEELER, PANTANO,
BURTON, CRESPO AND SICCARDI AND THEIR
PROGENY IS WITHOUT MERIT AS THESE CASES
ARE EITHER ERRONEOUSLY DECIDED OR
IRRELEVANT[.]
d. INTERMED[IATE] SCRUTINY "BALANCING"
HAS ALREADY BEEN REJECTED BY HELLER
AND MCDONALD[.]
iii. EVEN UNDER INTERMEDIATE SCRUTINY,
NEW JERSEY'S JUSTIFIABLE NEED PROVISIONS
DO NOT PASS CONSTITUTIONAL MUSTER.
POINT II
THE COURT ERRED BY FINDING THAT THE
JUSTIFIABLE NEED PROVISIONS OF N.J.S.A.
2C:58-4(c) & (d) and N.J.A.C. 13:54-2.4(d) DO NOT
VIOLATE ARTICLE I, PARAGRAPH 1 OF THE
NEW JERSEY CONSTITUTION[.]
A. THE RIGHT TO KEEP AND BEAR ARMS IS
INHERENT IN AND PART OF THE NATURAL
RIGHT TO SELF-DEFENSE PURSUANT TO
A-3510-17T2
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ARTICLE 1 PARAGRAPH 1 OF THE NEW JERSEY
CONSTITUTION.
B. ASSUMING A PROPER STANDARD OF
REVIEW IS EVEN NECESSARY, N.J.S.A. 2C:58-
4(c) & (d) and N.J.A.C. 13:54-2.4(d) VIOLATE
ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY
CONSTITUTION[.]
i. IF A STANDARD OF REVIEW IS EVEN
REQUIRED, STRICT SCRUTINY IS THE
NECESSARY STANDARD OF REVIEW IN THIS
MATTER.
ii. EVEN UNDER INTERMEDIATE SCRUTINY,
NEW JERSEY'S JUSTIFIABLE NEED PROVISIONS
DO NOT PASS CONSTITUTIONAL MUSTER.
Ciolek does not dispute that he failed to make any showing of justifiable
need as required by N.J.S.A. 2C:58-4(c) and (d) and N.J.A.C. 13:54-2.4(d). His
arguments are limited to a challenge to the constitutionality of the "justifiable
need" requirements of the statute and regulation.
Ciolek's arguments are without sufficient merit to warrant discussion in a
written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons
in the Law Division judge's thorough decision. We add only that the justifiable
need requirement in N.J.S.A. 2C:58-4(c) and (d) has been found constitutional
in Drake v. Filko, 724 F.3d 426 (3d Cir. 2013), cert. denied sub nom. Drake v.
Jerejian, 572 U.S. 1100 (2014), and in our decision in In re Wheeler, 433 N.J.
A-3510-17T2
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Super. 560 (App. Div. 2013). We find no basis in the record to depart from that
well-reasoned precedent.
Affirmed.
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