Opinion
DOCKET NO. A-3584-13T2
06-23-2015
IN THE MATTER OF THE APPLICATION FOR A PERMIT TO CARRY A HANDGUN PURSUANT TO N.J.S.A. 2C:58-4 FILED BY JOSEPH A. RACANELLI.
Evan F. Nappen, attorney for appellant Joseph A. Racanelli (Louis P. Nappen, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Tassini. On appeal from the Superior Court of New Jersey, Law Division, Morris County. Evan F. Nappen, attorney for appellant Joseph A. Racanelli (Louis P. Nappen, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent State of New Jersey (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Joseph A. Rancanelli appeals from the denial of his application for a permit to carry a handgun. The chief of police of the applicant's municipality determined that the applicant had not satisfied statutory requirements for the permit, so the chief denied the application. More particularly, the applicant had not demonstrated that he was "thoroughly familiar with the safe handling and use of handguns" and he had not demonstrated "a justifiable need to carry a handgun." N.J.S.A. 2C:58-4(c). The applicant requested a hearing in the Superior Court, where the judge also concluded that he failed to satisfy the requirements for the permit and the judge entered an order, denying the application. N.J.S.A. 2C:58-4(e). The applicant appeals. The Morris County Prosecutor's Office opposes the appeal. We affirm.
Facts and Procedural History
The applicant, a physician, maintains offices in New Jersey and New York. He is on-call for emergency trauma and responds to hospitals at various hours. He drives expensive vehicles. He is married with children and the family resides in Harding Township, Morris County. During relevant times, the applicant has had a firearms purchaser identification card (FPIC). N.J.S.A. 2C:58-3(b).
In 1998, the applicant reported to the Harding Township police that his handgun was stolen from his unlocked vehicle while it was in his residential driveway.
The applicant reported to the Newark police that, on or about May 8, 2013, in Newark, after he and his wife met a builder, he was walking alone on a Newark street when gunmen chased him until he threw his vehicle keys and bag to them. His vehicle was taken and, although recovered the next day, personal items he had in his bag and/or his vehicle were not recovered. The items included his identification cards, driver's license, FPIC, equipment, medications, a substantial amount of cash, and his laptop, which contained personal information.
On or about May 30, 2013, the applicant submitted his application for a permit to carry a handgun to Harding Township Police Chief Mark Giansanti. N.J.S.A. 2C:58-4(c). In an e-mail to the chief, the applicant described his medical practice, referred to the robbery in Newark, wrote that he feared for the safety of his family and himself, and wrote that he was an avid pistol shooter and familiar with gun safety. The chief investigated and saw the report of the 1998 incident. The chief determined that the applicant had not demonstrated that he was "thoroughly familiar with the safe handling and use of handguns" and that he had not demonstrated "a justifiable need to carry an handgun." Ibid. Accordingly, the chief denied the application.
The applicant requested a hearing in the Superior Court, which the Hon. Salem V. Ahto, J.S.C., held on December 12, 2013, in the Law Division, Criminal Part, Morris County. N.J.S.A. 2C:58-4(e). The applicant appeared with counsel and the prosecutor appeared in opposition. The chief testified that the applicant had not shown evidence of training in the safe handling and use of handguns and that the applicant had not shown a justifiable need to carry a handgun. During the hearing, the applicant's counsel presented to the chief a certificate from the National Rifle Association (NRA) that stated that the applicant had successfully completed the "First Steps Pistol Orientation." Applicant's counsel also presented a document related to the NRA certificate and that document stated that "the student" was required to demonstrate safe gun handling, how to use the firearm to shoot groups (a marksmanship term for bullets striking a target as aimed and in close proximity to one another), how to adjust the sight to "zero" the firearm (a marksmanship term for confirmation that a firearm, by use of the sight, strikes the target as aimed), and to safely clean the firearm. The chief pointed out that the applicant had not submitted documentation to support the NRA certificate. The chief mentioned that other applicants had participated in a program at the "Bullet Hole" in Belleville with very detailed instruction. The applicant's counsel requested adjournment to allow the applicant to seek training and the judge granted the request.
After the adjournment, the applicant submitted to the chief documents, including a certificate from an entity called "RTSP." The certificate showed RTSP to have an address in Randolph, New Jersey; was purportedly signed by Frederic Friedman, "Primary Instructor," and dated December 22, 2013; and stated that the applicant had successfully completed and met the requirements of RTSP's two-day defensive handgun course.
The chief, by letter dated February 20, 2014, notified the applicant that he still had not demonstrated that he satisfied the requirements for the permit. The applicant had submitted no test scores and he had not provided documentation that he had even fired a weapon. The applicant had not shown proof of compliance with requirements such as those shown in N.J.A.C. 13:54-2.4, which, among other requirements, states that an applicant for a permit to carry a handgun must demonstrate that he has satisfactorily completed "a firearms training course substantially equivalent to the firearms training approved by the Police Training Commission [PTC] as described by N.J.S.A. 2C:39-6(j)." N.J.A.C. 13:54-2.4(b)(1). Accordingly, the chief notified the applicant that he had again denied the application.
On March 20, 2014, Judge Ahto resumed the hearing. Applicant's counsel presented to the prosecutor a form from RTSP relative to the two-day defensive handgun course. The chief again testified and it was noted that the RTSP form was not signed and it did not identify the firearm that the applicant used in the RTSP training. The applicant had not shown that he had satisfactorily completed the required firearms training course.
The chief testified that PTC training included two-weeks of classroom instruction on the use of force, situations involving firearms, when not to use the weapon, and defensive tactics. The chief testified that the PTC training included a couple of weeks on the range, shooting a minimum of a thousand rounds with the service weapon, running, simulation of stressful situations, e.g., when a person would be out of breath, and exercises in safe handling of the weapon.
The chief noted that, if an officer in his department qualified with his duty weapon and the officer, off-duty, wished to carry a different weapon with a different caliber, size or number of rounds in the magazine, the officer must requalify with the different weapon. The chief testified that in the required firearms training course a score of 80% was acceptable to him as meeting the standard necessary to demonstrate safe handling and use of handguns. However, he pointed out, RTSP showed the applicant's score in the course to be only 98 of 125, i.e., below 80%. (98 ÷ 125 = .784).
The chief testified that the applicant had not demonstrated sufficient training, shooting or handling of a firearm, handling and shooting his own firearm, and/or defensive training.
The applicant testified that he maintains an office in Newark and he must respond to hospitals in Newark and provide emergency care. He testified that, about six years before his testimony (that is, about 2008), a man entered his Newark office, the office staff believed that the man intended to rob them, and everyone ran out of the office. Thereafter, for his Newark office he hired armed security guards most of whom have been retired law enforcement officers and, after he found some to be unreliable, he hired a responsible man to serve as the guard. He testified that, given the gangs in Newark and the loss of his items with his home address as a result of the 2013 robbery, which he described, he fears for his and his family's safety at home. He testified that there have been "suspicious" incidents related to his Newark office and these included people entering his office who did not fit the description of patients he would expect and telephone callers asking when he would be in the office. He acknowledged that, since the 2013 robbery, no one with a firearm has confronted him.
He testified that he took an NRA basic pistol course in Pennsylvania. He testified that he is a member of RTSP and, almost every weekend, he shoots at the RTSP range in Randolph. He testified about the RTSP two-day defensive handgun course. RTSP documents reported that the applicant used his handgun for live firing of approximately 300 rounds with malfunction and reloading drills and that in the course the applicant scored a total of 98 of 125. He testified that he used his Springfield Armory .45 caliber handgun to shoot the 300 rounds. He testified that (if he obtains the permit to carry a handgun), when in a hospital, he could lock his handgun in his locker or he would carry it on his person.
The judge, on the record, described the governing law and noted that a permit is not necessary for a person to keep a firearm in one's home or business. The judge recounted the evidence and concluded that the applicant had not shown sufficient training, familiarity to assure "safe handling" of handguns under stressful circumstances and that he had not shown "justifiable need." N.J.S.A. 2C:58-4. On March 21, 2014, the judge, consistent with his conclusions, entered his order, denying the application without prejudice. On April 14, 2014, the applicant filed his notice of appeal.
Conclusions of Law
The Second Amendment recognizes the preexisting "right of the people to keep and bear Arms" and, as part of the Bill of Rights, the Second Amendment is applicable to the states. U.S. Const., amend. II; see also McDonald v. City of Chicago, 561 U.S. 742, 767-80, 130 S.Ct. 3020, 3036-44, 177 L.Ed.2d 894, 914-22 (2010). However, the Supreme Court has acknowledged "handgun violence," Second Amendment rights are not unlimited, and states may constitutionally subject firearms to reasonable limitations, for example, to "prevent accidents." District of Columbia v. Heller, 554 U.S. 570, 632-36, 128 S.Ct. 2783, 2820-22, 171 L.Ed.2d 637, 681-84 (2008).
New Jersey's Legislature has long recognized that carrying handguns presents dangers and recognized the "urgent necessity" for regulation of handguns. Siccardi v. State, 59 N.J. 545, 553 (1971). The Legislature and our Supreme Court have considered statistical and anecdotal evidence and the opinions of informed law enforcement officials and representatives of well-established organizations promoting the legitimate and safe use of firearms relative to the risks posed by widespread carrying of handguns. In re Wheeler, 433 N.J. Super. 560, 574 (App. Div. 2013) (citations omitted). Accordingly, permits to carry guns have been closely regulated. In re Preis, 118 N.J. 564, 568 (1990) (distinguishing the right to possess a gun in one's home or place of business from permission to carry a gun).
Under the Criminal Code, an applicant for a permit to carry a handgun shall submit an application to the chief police officer of the municipality where he resides or the superintendent of the New Jersey State Police. N.J.S.A. 2C:58-4(c). "No application shall be approved by the chief of police 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:58-3c.]" (relating to matters such as convictions, drug dependency, habitual drunkenness, and mental disorders), that he is "thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun." N.J.S.A. 2C:58-4(c). The statutory requirement that an applicant for a permit to carry a handgun demonstrate that he is "thoroughly familiar with the safe handling and use of handguns" is consistent with the State's "legitimate regulatory goal" of "preventing danger to the community." N.J.S.A. 2C:58-4(c); In re Wheeler, supra, 433 N.J. Super. at 609-10 (quoting United States v. Salerno, 481 U.S. 739, 759, 107 S.Ct. 2095, 2108, 95 L.Ed.2d 697, 716 (1987)).
To demonstrate "thorough familiarity with the safe handling and use of handguns," for example, an applicant, must (1.) demonstrate that he has satisfactorily completed "a firearms training course substantially equivalent to the firearms training course approved by the [PTC] as described by N.J.S.A. 2C:39-6j"; (2.) submit his "most recent handgun qualification scores utilizing the handgun(s) he intends to carry as evidenced by test firings administered by a certified firearms instructor of a police academy, a certified firearms instructor of the [NRA], or any other recognized certified firearms instructor"; and (3.) demonstrate his "[p]assage of any test in this State's laws governing the use of force administered by a certified instructor of a police academy, a certified instructor of the [NRA], or any other recognized certified instructor." N.J.A.C. 13:54-2.4(b).
If the chief of police or superintendent approves the application, the applicant presents it to the Superior Court. N.J.S.A. 2C:58-4(d). If, within 60 days of filing of the application, the chief of police or superintendent does not approve or deny it, "it shall be deemed to have been approved, unless the applicant agrees to an extension in writing." N.J.S.A. 2C:58-4(c). Any person aggrieved by a police chief's or superintendent's denial of an application may request a hearing in the Superior Court. N.J.S.A. 2C:58-4(e).
The decision of the chief of police or superintendent on an application for a permit to carry a handgun is subject to de novo review by the Superior Court. In re Application of Boyadjian, 362 N.J. Super. 463, 476 (App. Div. 2003). The Superior Court shall issue the permit to the applicant "if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in [N.J.S.A.] 2C:58-3c., that he is thoroughly familiar with the safe handling and use of handguns, and that he has a justifiable need to carry a handgun." N.J.S.A. 2C:58-4(d).
Here, the applicant did not demonstrate that his course was "substantially equivalent to the firearms training approved by the [PTC]." N.J.A.C. 13:54-2.4(b)(1). He did not detail sufficiently the components of his course. He did not competently show that the person who administered his course was "certified" to administer tests, to grade scores, and to determine whether he is "thoroughly familiar with the safe handling and use of handguns." N.J.A.C. 13:54-2.4(b)(1), - 2.4(b)(2); N.J.S.A. 2C:58-4(c). See also N.J.R.E. 702. As the chief testified, the applicant also did not competently show that, in stressful situations, he would safely handle a handgun.
Given the above-described record, the applicant has not shown "that he is thoroughly familiar with the safe handling and use of handguns." N.J.S.A. 2C:58-4(c). That is, on that basis alone, the judge's conclusion and order must be affirmed.
In Siccardi v. State, 59 N.J. 545 (1971); Reilly v. State, 59 N.J. 559 (1971); and In re Application of "X", 59 N.J. 533 (1971), our Supreme Court considered the need for a permit to carry a handgun under N.J.S.A. 2A:151-44, which preceded N.J.S.A. 2C:58-4.
In Siccardi, the applicant was a Plainfield theater manager who carried substantial sums of money from his theatre for deposit. 59 N.J. at 547. He alleged that, in the immediate area of the theatre, there had been numerous beatings and robberies and he alleged that he had received numerous telephone threats. Ibid. The Supreme Court noted testimony from chiefs of police and the finding of the Commission on the Causes and Prevention of Violence to the effect that the carrying of a handgun is rarely an effective means of self-preservation. Id. at 541. The Supreme Court wrote that the "psychologically felt needs" of men in business who carry funds are not, in themselves, sufficient to meet the statutory requirement of "justifiable need to carry a handgun" for a permit to carry a handgun. Ibid. The Supreme Court concluded that the applicant did not show sufficient need for the granting of his application, so it was properly denied.
In Reilly, the applicants were physicians whose practices required that they enter urban areas, carrying bags with narcotics. 59 N.J. at 559. Hoodlums pursued one physician and backed him up against a wall and his car was broken into. Id. at 560. Another physician's office was criminally entered. One physician acknowledged that, if accosted, he would turn over medications to avoid harm. Id. at 561. The Supreme Court concluded that, consistent with the principles set forth in Siccardi, the applicants did not show sufficient need for the granting of their applications, so that they were properly denied. Id. at 562.
In In re Application of "X", the applicant was a diamond dealer who carried loose diamonds from his New York office to his home in New Jersey. 59 N.J. at 534. Whenever he asked for police protection, he received it and he had not been assaulted or threatened. He stated that, if confronted by an armed robber, he would surrender his diamonds, but that he wanted to carry a handgun in case someone tried to harm him. Ibid. His home was not in a high crime area. Ibid. The Supreme Court again concluded that, consistent with the principles set forth in Siccardi, the applicant did not show sufficient need for the granting of his application, so it was properly denied. Id. at 534-35.
Accepting the applicant as credible, in May 2013, he was the victim of an armed robbery and his fears are understandable. However, he has not been victimized in the more than two years since that incident and he has not shown a need to carry a handgun to protect himself or his family outside of the home and workplace. Accordingly, the prosecutor submits that the applicant shows only an unsubstantiated generalized fear, insufficient to justify the permit and that the applicant did not competently demonstrate "justifiable need to carry a handgun." In re Application of Borinsky, 363 N.J. Super. 10, 24 (App. Div. 2003); N.J.S.A. 2C:58-4(d).
On appeal, for the first time, the applicant asserts that the statutory requirement of "justifiable need to carry a handgun" violates his Second Amendment right. N.J.S.A. 2C:58-4(d). The applicant asserts that, before Heller's and McDonald's recognition that the Second Amendment affirmed the preexisting right of individuals to keep and bear arms, New Jersey's Supreme Court mistakenly saw the right to keep and bear arms as relating to maintenance of a militia, failed to recognize the individual right to keep and bear arms, and failed to recognize that the Second Amendment was applicable to the states. The applicant asserts that Burton v. Sills, 53 N.J. 86 (1968), Siccardi, supra, 59 N.J. 545, and their progeny manifest and perpetuate this mistake in their decisions on requirement of need to carry handguns.
The prosecutor objects to the raising of the constitutional issue, but also points out that, like most rights the Second Amendment has been and is subject to "reasonable limitations." Crespo v. Crespo, 201 N.J. 207, 210 (2010). After Heller and McDonald, relative to the statutory requirement of demonstration of "justifiable need," we noted that "restrictions on the right imposed in the interest of safety and order in public places have always been understood to be part of the [Second] Amendment's scope," so that an intermediate level of scrutiny is appropriate for such laws. N.J.S.A. 2C:58-4(d); In re Wheeler, supra, 433 N.J. Super. at 605. The "justifiable need" requirement is for purposes of "preventing danger to the community," so is a "legitimate regulatory goal" of the legislature. Id. at 609.
Consistent with the principle of "constitutional avoidance," courts do not decide a constitutional issue unless absolutely necessary for "disposition of the litigation." Id. (quoting Masciandaro, 638 F.3d 458, 475 (4th Cir. Va.2011)); Randolph Town Ctr. L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006). See also Bell v. Twp of Stafford, 110 N.J. 384, 389-90 (1988). Here, as stated above, the applicant has not demonstrated that he is "thoroughly familiar with the safe handling and use of handguns," so on that basis alone, his application must be denied. N.J.S.A. 2C:58-4(c). It is unnecessary to go farther.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION