"Red flag" challenge passed over by SCOTUS, but there’s more to the story

Photo Courtesy of the National Shooting Sports Foundation

On January 10, 2022 quietly and unceremoniously a case from New Jersey, P.Z. v. New Jersey was denied certiorari at the Supreme Court of The United States. I remember in the weeks leading up to the notice, talking about the case with my wife. I also had established communications with P.Z., the anonymous plaintiff, and was eager to talk to him at length. What I said to my wife about P.Z. was “Hey, really, there’s no story if he doesn’t get cert. So I might as well wait it out.” She was encouraging me to meet with him the day I was telling her about him for a coffee.

We all waited and watched as Monday after Monday went by from December 15th, 2021 when the case was distributed for conference, until finally on the 10th of January, P.Z. got a big old “DENIED”. 

I thought to myself, “Ya know, there might still be a story here, so let me make hard contact with P.Z. and get him on the phone for awhile.” After working through some logistical problems we did get to chat. Over the course of four conversations lasting about four hours in total, I got P.Z.’s side of the story. And I’m glad I did.

What is the P.Z. case? I wrote a little about his case back in October of 2021 when it was still sitting in waiting for conference.

What has gotten little coverage is another case out of New Jersey, P.Z. v. The State of New Jersey. P.Z. was docketed on August 6th, 2021 with the Supreme Court and comes from the same firm that the now denied cert Russell case came from. Evan Nappen as the Council of Record with Louis Nappen. The P.Z. case is teed up to be potentially the one that brings down so-called “red flag” laws. While the actual New Jersey extreme risk protective order statute was not used in this situation, an older law from the 90’s was executed in the taking of P.Z.’s firearms. From the complaint:

 

Petitioner P.Z. was the defendant before the New Jersey Superior Court Family Part, the New Jersey Superior Court – Appellate Division, and the New Jersey Supreme Court in a weapon forfeiture motion filed by respondent concerning weapons and firearm permit(s) seized from petitioner for safekeeping pursuant to a warrant section of a dismissed domestic violence temporary restraining order.

In the case at hand, New Jersey seized petitioner’s firearms “for safekeeping” pursuant to the Prevention of Domestic Violence Act. App. 1. Although the temporary restraining order that contained the warrant was dismissed, New Jersey refused to return said firearms “in the interest of public health, safety or welfare.” App. 29; App. 11-12. Because petitioner’s firearms were seized and not returned to him, New Jersey forever bars him from again possessing firearms. N.J.S.A. § 2C:58-3c(8); N.J.S.A. § 2C:39-7b(3). This is how New Jersey’s firearm permit/forfeiture scheme systematically deprives people of their right to possess firearms in their homes.

If states are going to have firearm licensing and firearm forfeiture statutes, then each provision within such statutes must pass constitutional muster. Petitioner argues that New Jersey’s gun control statutes do not pass constitutional muster since they are vague and/or overbroad balancing tests that do not provide sufficient Due Process or forms of redress, and that the situation requires this Court’s review for relief.

What were the particulars of the dismissed domestic violence temporary restraining order? P.Z. indicated to me that it all had to do with a custody battle with his former girlfriend. There were never any allegations of violence, or actual violence. The former partner expressed a generalized fear without foundation.

P.Z. explained to me things were going “okay” as far as the break up he was going through, but then it all eventually went south. Due to circumstances that dealt with the minor children, P.Z. was applying to get custody of his daughter. When it looked like P.Z. was more than likely going to be granted custody, that’s when a domestic violence restraining order was filed against him. This was executed ex parte and P.Z. only learned about it when the police showed up for his guns.

If we look at the opinion from the original case, State v. P.Z., DOCKET NO. A-5083-18T2 (App. Div. Oct. 22, 2020) we can see the details that are applicable here. There’s not a lot of inside baseball to the situation.

Defendant’s personal firearms and firearms purchaser identification card (FPIC) were seized pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. The State seized these items after his former girlfriend, J.S., obtained a temporary restraining order (TRO) against him. Although the Family Part denied a final restraining order (FRO), the State filed a motion to forfeit defendant’s weapons and FPIC under N.J.S.A. 2C:58-3(c)(5), contending that defendant’s possession of these items would be against “the interest of the public health, safety, or welfare.” We affirm the order under review—dated June 3, 2019—which granted the State’s petition for forfeiture of the weapons and FPIC.

Defendant and J.S. started dating in 2006. The couple had one child, who was born in 2010. They lived together for a brief time prior to defendant’s military deployment in 2010, when the child was approximately four months old. When he returned from Iraq in 2011, defendant did not move back in with J.S. Rather, they continued seeing each other, but their relationship ended in 2014.

J.S. had residential custody of the child. At first, defendant and J.S. amicably resolved any issues regarding the child, but over time, the relationship deteriorated. As part of her TRO application, J.S. alleged that in April 2010,  while the couple lived together, defendant pointed a loaded firearm in her face and said, “[i]f [her ex-husband] comes to my home, this is the last thing he’ll see.” Defendant denied this incident occurred. The judge noted that J.S.’s testimony at a public safety hearing, held on December 18, 2018, differed from her testimony at the FRO hearing, and he therefore “[found] it difficult to credit her version of the incident[.]”

J.S. also made harassment allegations, claiming that defendant was “tracking” her and the child’s movements and was recording their parenting exchanges without her knowledge. She asserted defendant used offensive language, calling her a “bitch.” J.S. said defendant threatened not to let her see the child again, to ruin her current-husband’s career, and to use his attorneys against her. J.S. also contended that defendant abused animals, had untreated post-traumatic stress disorder (PTSD), and that he had tried to commit suicide during deployment. Defendant denied all allegations, except those involving his PTSD.

These events prompted J.S. to file for the TRO. A Family Part judge in Burlington County first issued the TRO on May 25, 2018, which the judge amended on June 1, 2018. Because of the TRO, the Ocean County Prosecutor’s Office (OCPO) seized twenty-seven weapons and an FPIC from defendant’s  home. On June 5, 2018, the judge dismissed the TRO and declined to issue an FRO.

On September 6, 2018, the Burlington County Prosecutor’s Office (BCPO) served defendant with its notice of intention to obtain title to weapons and “revoke any and all permits, licenses and other authorizations [he] may have to possess th[o]se weapons.” On June 3, 2019, the judge granted the State’s petition for forfeiture and entered the order under review.

What’s left out of this opinion is the fact that P.Z. did get full custody of his daughter, and that one of the other daughters ended up in the full custody of her father. There’s a reason why P.Z.’s former partner lost custody of 2 of her 3 children at that time. The Judge also stated as noted in bold in the opinion there were some credibility issues. Thus, reversing the TRO and not granting a FRO should have been enough to scuttle the case and situation. Further, P.Z. getting custody should have been entered into the record, making the prosecutor’s case for the seizure of P.Z.’s firearms less strong. But that’s not what happened.

The summary here is that it’s alleged that P.Z.’s accuser was lying and the judge could see through her story.

P.Z. was considered safe enough to take care of his child, but not safe enough to have firearms, and was disarmed under New Jersey’s law under two areas. One of which P.Z. did not even meet the qualifications of, the other of which is an unconstitutional provision in the law. The prosecutor used these two portions of New Jersey statute § 2C:58-3 c.(3) and c.(5):

2C:58-3 c.(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 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;
[…]
2C:58-3 c.(5) To any person where the issuance would not be in the interest of the public health, safety or welfare;

While P.Z. admitted to having received a diagnosis for minor PTSD, it’s not one of the statutory disqualifiers for ownership of a firearm in the state. The level of PTSD which the Veterans Administration diagnosed him with was such that he was not disqualified from military service while he was still serving the country. For the Burlington County prosecutor to lean on c.(3) would be wrong, as he did not and does not meet the requirements.

This is where the real fun unconstitutional stuff comes into play: § 2C:58-3 c.(5). To say that P.Z. should have his FID card revoked as well as his arms kept seized because him having both would “not be in the interest of the public health, safety or welfare” is ridiculous. The court already established that the allegations levied against P.Z. were more than likely false, the TRO was revoked, a FRO was not issued, and P.Z.’s injuries were not of concern, how is it that this is what’s being used to strip someone of a fundamental right? That’s what was used though. No violence was ever cited, no act of violence recorded to have occurred, and P.Z. suffers from no federal disqualifiers. 

In New Jersey, we all think of the FID Card and Pistol Purchaser Permit scheme to be “shall-issue”, when in reality the provisions of c.(5) clearly leave leeway where discretion can come from a governmental body. The reason people are not acutely aware of this is because we don’t hear about cases like this all that often. Because of this the “right” to purchase a firearm in the Garden State is treated like a may-issue privilege.

For good measure and to show my due diligence, I reached out to Burlington County Assistant Prosecutor Alexis R. Agre who argued against P.Z. This is what I sent:

I’m a freelance writer and I’m working on a piece that maybe you can help me with. I’m trying to better understand a portion in the 2C code in New Jersey law on the issuance of firearm licenses. Specifically N.J. Stat. § 2C:58-3 c. (5) states that someone is disqualified from owning a firearm and an issuing authority should not issue a permit:

“To any person where the issuance would not be in the interest of the public health, safety or welfare;”

As a professional that deals with the 2C law on a day to day basis, can you direct me to where there are definitions to meet these criteria? Is there a guidebook, set of rules, and or place I can go to view what would make someone disqualified under that section of law? What does your office do concerning this interest balance and making decisions?

Thank you kindly in advance for any help that you can provide me with these matters.

Warmest Regards,

John Petrolino

I did receive an automatic response from Agre noting they’d be out of the office until the 14th, which has come and gone. Even since that date’s passage, I’ve received no response. I’m not shocked that there was no response, however that does not undercut the hubris and disrespectful nature of members of the New Jersey corrupt machine.

What was the modus of operandi of the prosecutor to have P.Z.’s arms stripped from him at all costs? How is it that P.Z.’s current girlfriend got roped into the order, with her arms being seized and her being ordered to keep them somewhere other than her property as long as P.Z. and her are domestic partners? Talk about a due process violation! She did not have a say at all in what happend with her own property, nor got a chance to face her accusers. How is it that someone is such a danger but then they can get full custody of their child but not their arms (meanwhile the baby momma lost custody of several of her children)?

There are so many details to P.Z.’s story that they would make a Lifetime or Hallmark movie seem less dramatic. So much of the particulars are surrounded by minor children – who again, ended up out of custody of their mother for a reason. Then there’s the portions of his story that I did not relate that are completely engrossed in conjecture that can’t be proved, even though all the parties know what’s being alleged is probably true. One day I hope that P.Z. will come forward with his full story for everyone. It’s both a cautionary tale as well as a story that deals with corruption and abuses of the system.

There are a lot of questions that got left on the table with this case. The New Jersey Supreme court pretty much dismissed P.Z.’s challenges to the order because arguments brought forward were not included in the original case. Then the Supreme Court shot down hearing the case. So this is the end of the line for P.Z., right? That’s not the case.

Just like stating that there’s no story here unless P.Z. got accepted by the High Court, the fact that it wasn’t does not indicate P.Z. can’t get any relief. Right now P.Z. as well as his current girlfriend who has become collateral damage in the process, have a choice to make. There is a chance that they have a very solid Civil Rights Violation case in Federal Court. In my opinion, hell yes there’s a shot.

On 2/22/22 (Second Amendment day?) I did get to have that coffee with P.Z. He had said he’s not sure what he’s going to do. Money is an unfortunate thing that’ll hold him back; these cases are not cheap. I made my opinion, which does not amount to a hill of beans when it comes to his own personal business, clear. I told him there’s a spoiler alert. I said “Just so you know, whatever I write about your case, it’s going to end with me having said I told you that you have to go forward with challenging this.” He laughed a bit and told me reliving his whole story again by telling it to me made his blood pressure rise a little. I’m hoping it went up just enough for him to file. We’ll have to see.

I’ll be tracking P.Z. and whether or not he pulls the trigger on this. I’ll certainly be reporting on any new case that gets filed. Hopefully I’ll get a message from him shortly saying he’s going to the mattresses on this. The short story is there are several civil rights violations here and the corrupt racketeering rackets that are allowed to proliferate in New Jersey need to be challenged and brought to an end. I’ll be waiting for your call, P.Z.