Opinion
DOCKET NO. A-4000-13T1
12-14-2015
IN RE RENEWAL APPLICATION FOR PERMIT TO CARRY A HANDGUN OF R.S.
Triarsi, Betancourt, Wukovits, & Dugan LLC, attorneys for appellant R.S. (Steven F. Wukovits, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County. Triarsi, Betancourt, Wukovits, & Dugan LLC, attorneys for appellant R.S. (Steven F. Wukovits, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Petitioner R.S. appeals the denial of his application to renew a permit to carry a handgun. We affirm.
I.
In 2007, petitioner obtained a New Jersey Firearms Purchaser Identification Card. In 2009, he sought a permit to carry a handgun. In his Letter of Need, petitioner stated:
I am the owner of [name], a hair salon located at [address], which is considered one of the high risk areas of Linden. This is a cash business and there are various days when I have a substantial amount of cash with me when leaving the premises between the hours of 9pm-1am, depending on when the stylists are done. This money is transported from the salon to either my home [address] or to the bank.
I am aware of several robberies that have taken place in this area of Linden. The crime rate has tremendously increased within the last 5 years since I've been here and therefore this is the reason for my request.
In January 2010, petitioner was issued a permit to carry a handgun. In January 2012, petitioner renewed his permit to carry a handgun. Petitioner was only permitted to carry the handgun while performing duties for the salon. His permit was set to expire on January 18, 2014. On January 14, 2014, petitioner sought to renew his permit. In his 2014 Letter of Need, petitioner asserted that "[his] business (hair salon) is located in an area of Linden that has had some issues with crime and because it's a cash business [he] would like to make sure that [his] permit is up to date."
Petitioner's application was forwarded to and approved by the chief of police of the city where he resided, pursuant to N.J.S.A. 2C:58-4(c). After being approved by the chief of police, petitioner's application was sent to the Law Division, pursuant to N.J.S.A. 2C:58-4(d). On March 18, 2014, Judge Scott J. Moynihan issued his Statement of Reasons denying petitioner's renewal application because he "failed to show a justifiable need" to carry a handgun. The court considered petitioner's 2009 and 2014 Letters of Need but found that petitioner's renewal application "failed to show that he is subject to a specific danger or threat." The court also found that "the use of a handgun to, in effect, protect property is not a justifiable reason to carry a handgun." On April 30, 2014, the court issued an order denying petitioner's application to renew his permit to carry a handgun.
Petitioner appeals, arguing the following:
THE PETITIONER HAS ESTABLISHED A JUSTIFIABLE NEED TO CARRY A HAND GUN THEREFORE THE PETITIONER'S APPLICATION FOR A GUN PERMIT SHOULD HAVE BEEN GRANTED.
II.
Obtaining a "permit to carry a gun is the most closely-regulated aspect of [New Jersey's] gun-control laws." In re Preis, 118 N.J. 564, 568 (1990). N.J.S.A. 2C:58-4 governs requests for such permits and provides, in pertinent part:
c. Each application shall in the first instance be submitted to the chief police officer of the municipality in which the applicant resides . . . .
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 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 . . . .
d. . . . If the application has been approved by the chief police officer . . . the applicant shall forthwith present it to the Superior Court of the county in which the applicant resides, or to the Superior Court in any county where he intends to carry a handgun . . . . The 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 section 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.
"We are not bound [] by the rule-of-law bases undergirding the trial judges' evaluations whether applicants had met the third standard of N.J.S.A. 2C:58-4c, 'justifiable need to carry a handgun.'" In re Application of Borinsky, 363 N.J. Super. 10, 23-24 (App. Div. 2003) (citing Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). Thus, we review the trial court's decision de novo. We must hew to this standard of review.
III.
"Justifiable need to carry a handgun" is determined on a "case-by-case basis." Preis, supra, 118 N.J. at 576. To demonstrate a "justifiable need to carry a handgun," an applicant must show "an urgent necessity for self-protection, as evidenced by specific threats or previous attacks which 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." N.J.A.C. 13:54-2.4(d). "Generalized fears for personal safety are inadequate and a need to protect property alone does not suffice" to show a justifiable need. Preis, supra, 118 N.J. at 571.
Petitioner argues that he needs a permit to carry a handgun because he sometimes carries large sums of cash late at night, in a dangerous area, to and from his business. The trial court, relying on Siccardi v. State, 59 N.J. 545 (1971), properly rejected petitioner's argument.
In Siccardi, the owner of a theater sought a permit to carry a handgun because: he was "required to carry substantial sums of money from the theater to a nearby 'bank depository in the late evening hours;'" the theater was located "'within the perimeter of the area of recent civil disorder;'" there were "'numerous incidents involving beatings and robberies in the immediate area of the theater;'" and he received "'numerous telephone threats' and his 'life ha[d] been threatened' by persons confronting him 'in the theater and on the street.'" Id. at 547-48. The owner's application was denied by the chief of police, the trial court, and this court. Id. at 548-50, 558. Our Supreme Court affirmed, finding that the owner "had suitable alternatives" for the "protection of his property," that the specific threats against the owner's life "were not serious in nature and did not call for any police action," and that he "has never been subjected to a street assault or attack." Id. at 558. The Court held that to establish justifiable need, one must show:
an urgent necessity for carrying guns for self-protection. One whose life is in real danger, as evidenced by serious threats or earlier attacks, may perhaps qualify within the latter category but one whose concern is with the safety of his property, protectable by other means, clearly may not so qualify.
[Id. at 557.]
Here, petitioner's "situation does not differ materially from those confronting many businessmen and others who carry substantial funds on their persons, often in high crime areas." In re Application of "X", 59 N.J. 533, 534 (1971). He has not shown that it was impossible to obtain a police or private security escort when he is carrying cash. See In re Pantano, 429 N.J. Super. 478, 484 (App. Div.), certif. granted, 214 N.J. 235 (2013), appeal dismissed as improvidently granted, ___ N.J. ___ (2014). He has not presented any evidence indicating "any special dangers to him." Application of "X", supra, 59 N.J. at 535. Moreover, he has not presented evidence that he has been "assaulted or threatened." Ibid.
Petitioner's appendix contains newspaper articles, press releases, and purported municipal crime statistics from a private website. However, there is no indication in the record that these documents were presented to the trial court, and thus we decline to consider them as they are not in the record. State v. Harvey, 151 N.J. 117, 201-02 (1997 ); see R. 2:5-4; Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2016).
In addition, our Supreme Court has repeatedly stated that granting a business person a permit to carry a handgun could "afford hardly any measure of self-protection" and would "involve him in the known and serious dangers of misuse and accidental use." Siccardi, supra, 59 N.J. at 558; Application of "X", supra, 59 N.J. at 532; Reilly v. State, 59 N.J. 559, 562 (1971). Finally, granting petitioner's request would call for the issuance of permits "to the innumerable men in business who are obliged to carry funds and whose psychologically felt needs are no less than his. Surely such widespread handgun possession in the streets, somewhat reminiscent of frontier days, would not be at all in the public interest." Siccardi, supra, 59 N.J. at 558. "We find no significant basis to distinguish this case from the holdings of Application of "X", Siccardi and Reilly." Doe v. Dover, 216 N.J. Super. 539, 543 (App. Div. 1987).
IV.
Petitioner also argues that the trial court should have afforded more deference to the police chief's decision to approve his application. However, "the chief did not testify [in the trial court] nor was the court apparently presented with the chief's reasons for approving the application. Thus, there was no evidence of a reasoned exercise of experience and expertise for the court to consider." Pantano, supra, 429 N.J. Super. at 485. In any event, the Legislature "allows only a Superior Court judge to issue a permit." Preis, supra, 118 N.J. at 569.
We recognize that earlier Superior Court judges approved petitioner's application for a permit. Again, petitioner did not include the other judges' reasoning. Moreover, "[t]he case-by-case evaluation regime mandated by Preis will necessarily result in decisions which may be viewed as 'inconsistent.'" Borinsky, supra, 363 N.J. Super. at 27. We must evaluate the decision before us, and apply the "strict policy which wisely confines the issuance of carrying permits to persons . . . who can establish an urgent necessity for carrying guns for self-protection." Siccardi, supra, 59 N.J. at 557.
Here, Judge Moynihan's statement of reasons amply demonstrated the deficiencies in petitioner's renewal application to carry a handgun, namely, that he was not the subject of individualized threats and that he based his application on the need to protect personal property.
In any event, none of these documents evidence "specific threats or previous attacks" against the petitioner. N.J.A.C. 13:54-2.4(d). Absent such evidence, carrying money or valuables in a high-crime area is inadequate to show a justifiable need. See 515 Assocs. v. City of Newark, 132 N.J. 180, 194-95 (1993). It would be contrary to the Legislature's intent if courts issued permits to carry handguns based on a municipality's elevated crime statistics.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION