IN RE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF MARK CHEESEMAN (GLOUCESTER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2412-17T2
IN RE APPLICATION FOR
PERMIT TO CARRY A HANDGUN
OF MARK CHEESEMAN.
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Submitted October 22, 2018 – Decided November 8, 2018
Before Judges Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County.
Mark P. Cheeseman, appellant pro se.
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Dana R. Anton, Senior
Assistant Prosecutor, on the brief).
PER CURIAM
Applicant Mark Cheeseman appeals from the December 13, 2017 Law
Division order denying his application for a permit to carry a firearm pursuant
to N.J.S.A. 2C:58-4. We affirm.
Obtaining a permit to carry a firearm "is the most closely-regulated aspect
of gun-control laws." In re Preis, 118 N.J. 564, 568 (1990). Pursuant to N.J.S.A.
2C:58-4, an applicant must first submit an application "to the chief police officer
of the municipality in which the applicant resides, or to the superintendent," if
there is no chief of police in the municipality. N.J.S.A. 2C:58-4(c). Under
N.J.S.A. 2C:58-4(c):
No application shall be approved by the chief police
officer or the superintendent unless the applicant
demonstrates that he is not subject to any of the
disabilities set forth in [N.J.S.A. 2C:58-3(c)], that he is
thoroughly familiar with the safe handling and use of
handguns, and that he has a justifiable need to carry a
handgun.
Justifiable need is defined in the regulations adopted pursuant to N.J.S.A.
2C:58-1 to -19 as, "urgent necessity for self-protection, as evidenced by serious
threats, specific threats, or previous attacks, which demonstrate a special danger
to the applicant's life that cannot be avoided by reasonable means other than by
issuance of a permit to carry a handgun." N.J.A.C. 13:54-2.4(d)(1). This
codification of the "justifiable need" standard closely mirrors an earlier
explanation of "need" that was laid out by our Supreme Court in Siccardi v.
State, 59 N.J. 545, 557 (1971).
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Upon receiving the approval of the chief of police or superintendent, as
the case may be, the application is then presented to a judge of the Superior
Court of the county in which the applicant resides who "shall issue" the permit
after being satisfied that the applicant is qualified and has established a
"justifiable need" for carrying a handgun. N.J.S.A. 2C:58-4(d). However, if the
application is denied by the chief of police or the superintendent, pursuant to
N.J.S.A. 2C:58-4(e), the applicant "may request a hearing in the Superior Court
of the county in which he resides . . . by filing a written request for such a hearing
within [thirty] days of the denial."
Here, Cheeseman submitted his application to the Chief of Police of
Glassboro Township, where he resided. On September 27, 2017, the Chief
denied the application after concluding that Cheeseman did not demonstrate "a
justifiable need to carry a handgun" under the standard enunciated in Siccardi.
Thereafter, Cheeseman filed a timely appeal of the Chief's denial to the
Gloucester County Superior Court.
During a hearing conducted on December 13, 2017, the Chief testified that
after reviewing the application, he concluded that Cheeseman's basis for seeking
the permit was for "personal protection." However, according to the Chief,
although Cheeseman referred to "some crimes" occurring in the area where he
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lived, including "drug activity" and a "stabbing" in the entrance of a mini -mart,
Cheeseman made no mention of any specific threat made towards him that led
the Chief "to believe that [Cheeseman] was in jeopardy of any immediate
violence."
After the hearing, in an oral decision, the trial court upheld the Chief's
denial, finding Cheeseman failed to demonstrate "a justifiable need" to carry a
handgun. The court found no "articulated threat" was made towards Cheeseman
and noted that while Cheeseman did cite to "incidences . . . in [his] general
neighborhood and [his] extended neighborhood, . . . nothing [] specifically
point[ed] to [his] justifiable need to carry a firearm outside of [his] home." The
court also rejected Cheeseman's contention that denying his application based
on his "generalized" fears violated his constitutional right under the Second
Amendment. The court entered a memorializing order and this appeal followed.
On appeal, Cheeseman argues that New Jersey's system of either granting
or denying carry permits "on a case-by-case basis" is contrary to the Supreme
Court's holding in District of Columbia v. Heller, 554 U.S. 570 (2008), and its
progeny. According to Cheeseman, "[t]he historical explanation that [N.J.S.A.]
2C:58-4's 'justifiable need' is synonymous with [Heller's] lawful purpose simply
allows the [c]ourt to sever the [Siccardi] [r]ule and [N.J.A.C. 13:54-2.4(d)(1)]
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from the statute which would follow the precedent set forth by SCOTUS." In In
re Pantano, 429 N.J. Super. 478 (App. Div. 2013), we rejected similar
arguments, and concluded that "Heller would not affect the constitutionality of
N.J.S.A. 2C:58-4." Id. at 487. We discern no basis to reach a different
conclusion here.
The issue in Heller was whether the Second
Amendment protects only the right to possess and carry
a firearm in connection with military service or also
protects an individual's right to possess a firearm for
other purposes such as self-defense and hunting. The
Court held that the Second Amendment protects an
individual right to keep and bear firearms, and that this
holding required invalidation of District of Columbia
statutes that totally prohibited handgun possession in
the home and required any lawful firearm in the home
to be disassembled or bound by a trigger lock, thus
rendering it inoperable.
[In re Dubov, 410 N.J. Super. 190, 196-97 (App. Div.
2009) (citations omitted).]
The United States Supreme Court later held that the Second Amendment right
is "fully applicable" to the states through the Fourteenth Amendment.
McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
Beginning "with the premise that 'statutes are presumed constitutional,'"
in Pantano, we hesitated "to find a constitutional infirmity absent clear
expression of the law from the United States Supreme Court, particularly where
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it would disturb settled law." 429 N.J. Super. at 487 (quoting Whirlpool Props.,
Inc. v. Dir., Div. of Taxation, 208 N.J. 141, 175 (2011)). We noted that federal
district courts, including New Jersey's, and other courts have "concluded that
our state law governing permits to carry handguns does not 'burden any
protected conduct' under the Second Amendment," id. at 488 (quoting
Piszczatoski v. Filko, 840 F. Supp. 2d 813, 829 (D.N.J. 2012), aff'd, Drake v.
Filko, 724 F.3d 426 (3d Cir. 2013)), and "a statute prohibiting carrying a
handgun outside the home without a permit was not at odds with Heller or
McDonald." Ibid. (citing Williams v. State, 10 A.3d 1167, 1169, 1177 (Md.
2011)). Rather, "Heller addressed only the right to bear arms in the home," and
"[t]he language of Justice Scalia's majority opinion deliberately limited the
scope of the right recognized to the home." Ibid. (quoting Piszczatoski, 840 F.
Supp. 2d at 821).
We acknowledged that "[o]ther courts have observed that the application
of the Second Amendment to possession of firearms outside the home is at least
uncertain." Id. at 489. We also recognized that in Kachalsky v. County of
Westchester, 701 F.3d 81, 93-101 (2d Cir. 2012), the Second Circuit upheld the
constitutionality of a New York law requiring a person seeking an unrestricted
permit to carry a concealed handgun in public to show "proper cause," despite
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the burden placed on the permit applicant. Pantano, 429 N.J. Super. at 489-90.
We noted the similarity between "New York's 'proper cause' requirement" and
"New Jersey's statutory requirement of 'justifiable need.'" Id. at 489.1
Since we decided Pantano, the Third Circuit upheld the constitutionality
of the justifiable need requirement in Drake, 724 F.3d at 429, concluding that it
was a "'longstanding' regulation" that "does not burden conduct within the scope
of the Second Amendment's" protections. Acknowledging that its inquiry could
simply stop there, the Third Circuit expounded that "New Jersey's schema takes
into account the individual's right to protect himself," through "careful case -by-
case scrutiny of each application," and though "[o]ther states have determined
that it is unnecessary to conduct the careful, case-by-case scrutiny . . . before
issuing a permit to publicly carry a handgun," New Jersey's "individualized,
tailored approach" would pass constitutional muster. Id. at 439.
Thus, here, as in Pantano, we conclude that "given the presumption of our
law's constitutionality, the lack of clarity that the Supreme Court in Heller
1
We also acknowledged that the Seventh Circuit Court of Appeals extended the
Second Amendment right to carry a handgun outside the home in Moore v.
Madigan, 702 F.3d 933, 942 (7th Cir. 2012). There, "[i]n setting aside an Illinois
law that banned concealed carrying of weapons, the court contrasted the Illinois
law with New York's law held constitutional in Kachalsky." Pantano, 429 N.J.
Super. at 490 n.2.
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intended to extend the Second Amendment right to a state regulation of the right
to carry outside the home, and the Second [and Third] Circuit's explicit
affirmation," N.J.S.A. 2C:58-4's case-by-case schema, requiring a showing of
justifiable need, withstands constitutional scrutiny post-Heller and its progeny.
Pantano, 429 N.J. Super. at 490. See also In re Wheeler, 433 N.J. Super. 560,
613 (App. Div. 2013) (holding that the "justifiable need" requirement does not
violate the Second Amendment).
Affirmed.
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