Opinion
DOCKET NO. A-1023-15T1
02-03-2017
IN THE MATTER OF THE APPEAL OF THE DENIAL OF A NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD AND ONE PERMIT TO PURCHASE A HANDGUN IN THE NAME OF E.M.
Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, attorneys for appellant E.M. (James C. Jensen, of counsel; Danielle E. Gonnella, on the briefs). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Morris County, Order No. 13-26. Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, attorneys for appellant E.M. (James C. Jensen, of counsel; Danielle E. Gonnella, on the briefs). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief). PER CURIAM
Appellant E.M. appeals from the Law Division's September 23, 2015 order denying his application for a Firearms Purchaser Identification Card ("FPIC") and a permit to purchase a handgun. We affirm.
We derive the following procedural history and facts from the record developed at the four-day hearing conducted by Judge Salem Vincent Ahto. E.M. worked as a police officer for twenty-seven years before retiring from duty in 1996. He thereafter obtained a permit to carry a handgun and reapplied for that permit every year for the next seven years.
In 2002, E.M. was diagnosed and treated for esophageal cancer. Because E.M. was despondent over his health issues, his wife L.M. was afraid he might harm himself with the handgun he owned. Therefore, L.M. gave the gun to a neighbor. L.M. testified that E.M. agreed with her decision. However, L.M. believed that E.M. kept another handgun in a safe inside the home.
In late April 2003, E.M. became angry at his son. E.M. "gaveled the table with the palm of [his] hand[,] . . . got somewhat loud and left the kitchen." On April 29, 2003, E.M. told L.M. that he was not going to a hospital appointment because he was not seeing any "dividends." The chief of police testified that later that day, L.M. called the police for immediate assistance because E.M. had threatened to kill her and then himself. A squad of police officers responded to the scene. The police chief testified that several hours later, the police were able to "get [E.M.] out of the house."
The police took E.M. to the hospital and he was admitted for psychiatric observation. He remained in the hospital's psychiatric unit for nine days. The police charged E.M. with making terroristic threats, but the State later administratively dismissed the charge.
Upon his release from the psychiatric unit, E.M. participated in an outpatient program at the hospital and began treatment with "Dr. R.D.," a psychiatrist, in July 2003. E.M. remained under Dr. R.D.'s care until November 2008. The doctor prescribed Paxil for depression and anxiety and E.M. remained on this medication for the next eleven years.
In 2004 and 2005, E.M. filed applications to renew his permit to carry a firearm. On each application, E.M. answered "no" to a question asking whether he had ever been "confined or committed in a mental institution or hospital for treatment or observation for a mental or psychiatric condition on a temporary, interim or permanent basis." E.M. also answered "no" to a question asking whether he had "ever been attended, treated or observed by any doctor or psychiatrist on an inpatient or outpatient basis for any mental or psychiatric condition." At the hearing, E.M. claimed that he answered these questions carelessly with no intention to deceive. However, after assessing his credibility, Judge Ahto concluded that E.M. intentionally falsified his responses on the application form in order to continue to maintain his permit to carry a handgun.
In 2005, the State discovered that E.M. had falsified his permit applications and brought an action to require E.M. to surrender his firearms and firearms permits. On June 2, 2005, E.M. agreed to do so under the terms of a consent order issued on that date.
During the course of treating E.M., Dr. R.D. testified that L.M. contacted him on several occasions to discuss her continued fear that E.M. would harm her. The doctor stated that L.M.'s concerns "never reached the point of saying well, let's call for an intervention with an ambulance or an emergency or anything. But there were concerns about his behavior and mood."
In 2009, E.M. got into an argument with another driver in a parking lot. The police report indicated that E.M. punched the man several times in the face. However, the man did not wish to press charges. At the hearing, E.M. denied striking the man and alleged that he sat in his car while the man yelled at him.
In 2013, E.M. approached Dr. R.D. and asked him to certify that E.M. could get his weapons back. Dr. R.D. testified that although E.M. "was generally all right [and] had been stable[,]" E.M.'s history required the doctor to "strike a cautionary note." Dr. R.D. explained that he "did not know in going forward if there was a lot of stress or a relapse or something like that . . . there would be a possibility of another episode like the one that got [E.M.] hospitalized. Which might carry some risk." Therefore, Dr. R.D. testified that he could not "certify" that E.M. was fit to possess firearms.
E.M.'s family physician, "Dr. A.G.," testified that he had been seeing E.M. since 2005. At E.M.'s request, Dr. A.G. "weaned" him off Paxil in November 2014, which was a procedure the doctor testified he did not "usually . . . routinely recommend." When asked whether "there [was] any contraindication for [E.M.] to carry a weapon[,]" Dr. A.G. stated that the details of the 2003 incident were "very concerning."
At this point in the hearing, E.M. interrupted Dr. A.G.'s testimony to challenge the doctor's statement that E.M. threatened L.M. during the 2003 incident.
In 2013, E.M. asked Dr. A.G.'s partner, "Dr. I.M.," to give him a note saying it was "okay" for him "to carry a firearm." On a blank prescription form, Dr. I.M. wrote, "[E.M.] is of sound mind and body and is okay to carry a legal weapon. Thanks." At the time he wrote the note, however, Dr. I.M. was not aware of E.M.'s hospitalization in the psychiatric unit and did not know that E.M. had threatened to kill his wife and himself. Thus, Dr. I.M. testified that he "would not be able to write the note" now that he had this information and, instead, would have to "defer to specialty care" for such a determination.
In preparation for the hearing, E.M. went to see "Dr. P.C.," a psychiatrist, in June 2013. Based primarily on the information reported to him by E.M, Dr. P.C. testified that E.M. did not have a disability that would interfere with his handling of firearms. He further opined that E.M. "would have control over his temper and [would] not resort to inappropriate behavior based on [the doctor's] examination."
After the chief of police denied E.M.'s application, E.M. appealed the chief's decision to the Law Division. Following the hearing, Judge Ahto rendered a thorough oral opinion denying E.M.'s application for a FPIC and a permit to purchase a handgun. The judge found that E.M. intentionally provided false information on his 2004 and 2005 permit applications in order to hide his nine-day hospitalization in the psychiatric unit following the 2003 incident where he threatened to kill his wife and himself. The judge also found that the seriousness of that incident, which required the dispatch of a special police squad to E.M.'s home, further supported the police chief's decision to deny the application.
Based upon the medical testimony presented, Judge Ahto determined that E.M. continued to have a psychiatric condition that made him unfit to possess firearms. In this regard, the judge placed greater weight on the testimony of Dr. R.D., Dr. A.G., and Dr. I.M., the doctors who treated E.M., than on the opinions expressed by Dr. P.C., who had merely evaluated E.M. primarily on the basis of information that E.M. provided to him.
Finally, the judge noted that E.M. interrupted the proceedings at several points, most notably during the testimony of his family physician, Dr. A.G. These flashes of temper, the judge found, "cause[d] concern . . . about what [E.M.] might do if there was a greater stress and he had a weapon." This appeal followed.
The judge also referred to E.M.'s involvement in the argument with the other driver in 2009 as another cause for concern, but did not place "much weight" on the incident. --------
On appeal, E.M. raises the following contentions:
POINT I
ALTHOUGH THE [CHIEF OF] POLICE DENIED APPELLANT'S APPLICATION BASED ON N.J.S.A. 2C:58-3(c)(5), THE TRIAL COURT CHOSE TO IMPROPERLY FOCUS ON APPLICANT'S MENTAL HEALTH AND FURTHER IGNORED THE ONLY CREDIBLE EXPERT EVIDENCE IN THE RECORD BEARING ON APPLICANT'S MENTAL HEALTH, THUS DENYING APPLICANT'S APPLICATION UNDER A DE FACTO USE OF N.J.S.A. 2C:58-3(c)(3).
POINT II
THE STATE FAILED TO MEET ITS BURDEN TO JUSTIFY A DENIAL OF APPELLANT'S 2013 APPLICATION UNDER N.J.S.A. 2C:58-3(c)(5).
POINT III
THE TRIAL COURT IMPROPERLY RELIED UPON AN INCIDENT SURROUNDING THE APPELLANT'S 2004 APPLICATION FOR WHICH APPELLANT HAD ALREADY RECEIVED A DEPRIVATION OF HIS SECOND AMENDMENT RIGHTS, THUS PUNISHING APPELLANT TWICE FOR THE SAME CONDUCT.
POINT IV
APPELLANT'S APPLICATION SHOULD BE GRANTED BY THIS COURT UNDER ITS ORIGINAL JURISDICTION.
We have considered E.M.'s contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm substantially for the reasons set forth by Judge Ahto in his comprehensive oral opinion and add the following comments.
Under N.J.S.A. 2C:58-3, New Jersey residents who apply for firearms permits are eligible to receive an FPIC unless they fail because of one of the statutory "disabilities" under N.J.S.A. 2C:58-3(c). That section states that no handgun purchase permit or FPIC will be issued, in pertinent part:
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who
has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;
. . . .
(5) To 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) (emphasis added).]
In considering decisions by trial courts applying these and the other statutory factors, well-settled principles of appellate review apply. Specifically, "[w]e review a trial court's legal conclusions regarding firearms licenses de novo." In re N.J. Firearms Purchaser Identification Card by Z.K., 440 N.J. Super. 394, 397 (App. Div. 2015) (citing In re Sportsman's Rendezvous Retail Firearms Dealer's License, 374 N.J. Super. 565, 575 (App. Div. 2005)). However, appellate review of a trial court's factual findings on such matters is "limited." In re Z.L., 440 N.J. Super. 351, 355 (App. Div.), certif. denied, 223 N.J. 280 (2015).
"Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence." In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). We also defer to the trial judge's credibility findings. State v. Kuropchak, 221 N.J. 368, 382 (2015) (noting that "appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record").
In denying E.M.'s application, Judge Ahto properly considered the serious nature of the 2003 incident, which resulted in E.M.'s nine-day confinement in a hospital psychiatric unit after E.M. threatened to kill his wife and himself. Thereafter, E.M. intentionally provided false information on his 2004 and 2005 renewal applications, which resulted in the loss of his firearms permits and the forfeiture of his weapons. E.M. continued to have anger management issues, as exemplified by the 2009 public argument he had with another driver in a parking lot and his obstreperous behavior in the courtroom during the four-day hearing.
Contrary to E.M.'s contention, Judge Ahto was not required to accept Dr. P.C.'s opinion that E.M. suffered no disability that would prevent him from safely possessing a firearm. Dr. P.C. never treated E.M. and, therefore, did not have the same level of familiarity with E.M.'s condition as Dr. R.D., Dr. A.G. and Dr. I.M. We defer to the judge's rejection of Dr. P.C.'s testimony, "noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded to his testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc., supra, 115 N.J. at 607).
Under these circumstances, we discern no basis for disturbing Judge Ahto's reasoned determination to deny E.M.'s application for a FPIC and a permit to purchase a handgun.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION