Back in December a case known as M.U. was reported on and it could have completely upended New Jersey’s permitting scheme. The case, officially called IMO the Appeal of the Denial of M.U.’s Application for a Handgun Purchase Permit & IMO the Revocation of M.U.’s Firearms Purchaser Identification Card and Compelling the Sale of His Firearms, was recently decided in the New Jersey Appellate Division. The decision was not exactly consistent with NYSRPA v. Bruen, Heller, or McDonald, however it will offer some relief to M.U., as well as others that find themselves in a similar situation.
A brief synopsis of M.U. revolves around something called the “not in the interest of public health, safety or welfare” disqualifier. What this disqualifier does is give issuing authorities broad latitude to deny an applicant their firearms identification card, pistol purchaser’s permits, and or permits to carry. The standard is a subjective one, thus it is unconstitutional. According to a release from the Nappen Law Firm, the court is allowing that standard to stand, while not allowing the confiscation of previously procured firearms. This is in the event should an individual find themselves getting denied additional permits, change of address on a firearms identification card, or the newly oft sought permits to carry.
Over the last ten years — when people (who have previously been granted firearm permits and possessed firearms) applied for additional permits to purchase a handgun, duplicate firearms purchaser identification cards, or carry permits and those people appealed such application denials by their municipal police chiefs — it had become common practice, particularly for the Bergen County Prosecutor’s Office, to file forfeiture motions upon any firearms already lawfully acquired and possessed.
Louis Nappen, Esq., stated, “I am extremely pleased to have put an end to these unlawful forfeitures in New Jersey. The Appellate Division recognized the separations of firearm possession, purchase, and forfeiture under New Jersey laws, and that the State has no basis to motion for weapon forfeitures at permit appeal matters.”
Firearm purchase permits are governed under N.J.S.A. 2C:58-3. Firearm possession is governed under N.J.S.A. 2C:39. And firearm forfeitures are governed under other statutes that only apply under specified circumstances (such as extreme risk mental health issues, when the items are contraband, or when property is used in criminal activity).
The M.U. Court also found that, if the State moves for forfeiture under Chapter 64 (NJ’s “Forfeiture” statute), then people are entitled to jury trials, rather than merely allowing a judge to act as trier-of-fact (which is the case in firearm permit appeals).
That said, the Appellate Division upheld New Jersey’s “not in the interest of public health, safety or welfare” disqualifier to receiving firearm purchaser permits as constitutional, and that Courts may open criminal expungements to examine underlying reports to be used against permit applicants at firearm permit matters.
This is a good thing on one hand. In recent months, the droves of people applying for permits to carry have been adding to the ire to all three branches of government in New Jersey. Some issuing authorities have been great about the process, and others have been continuing to kick and scream. Given the latest push, some authorities have been digging deeper and deeper in an applicant’s history – this was not the case of M.U. specifically – to try and find any and all excuses of denying a person a permit to carry.
Something the authorities have been using is this unconstitutional interest balance test and giving denials under these community caretaking clauses in the law. This clause has been abused in the past, and recently applicants that have been seeking updates on their permit status that have queried town/city councils, or mayors, etc. have ended up “red flagged” or even denied under this standard. Police departments have been punishing permit to carry applicants for questioning inordinate delays.
The removal of the authorities’ ability to just remove formerly procured firearms from an owner over a community caretaking provision is a good thing. The irony of course is that the applicant has firearms – allegedly already – and that the subjective nature of the situation becomes mooted. If the authority thinks an individual is such a danger that they should not be able to obtain additional firearms or a permit to carry, then the court addressing that the person should be able to keep their arms under due process claims, throws to the wind the entire argument. But this is New Jersey we’re talking about. Naturally the law has to go, but not in yesterday’s opinion.
Evan Nappen gave a statement concerning the opinion.
“It is worth noting that the historical precedents relied upon by the Court were blatantly racist gun laws that existed throughout American history, and this tradition of institutionalized racism was furthered by the Court today by allowing expunged records to be used to deny Second Amendment rights. Expungements have recently been broadened in New Jersey to address prior racial injustice. The Court’s decision, however, undoes the goals of expungements for relief to enjoy civil rights.” – Evan Nappen, Esquire
Nappen is right in pointing to the subjective nature of any and all these permitting laws and their histories. As explored on yesterday’s Cam and Company, it was mentioned that North Carolina’s pistol permitting law – which is close to meeting its demise – is also a relic of the Jim Crow era. New Jersey’s law is no different. The state of New Jersey wanted to keep firearms out of the hands of “those people,” which Assemblyman John McKeon alluded to last year during hearings on the NJ “carry-killer” law. The same racism that brought on the law in 1965 still exists in our governmental bodies today.
This is a big win, in an incremental way. While we’re still left with the awful precedent of community caretaking provisions, specifically noted as verboten in NYSRPA v. Bruen, the people do retain their property rights and right to due process going forward. The announcement from Nappen’s office mentioned that it’s not immediately known if either party will be appealing what they might consider disfavored portions of the opinion, however given that this was a published opinion, it would be in the best interest and welfare of all New Jersey gun owners to continue to challenge this garbage law. Will some relief and or guidance be found in a preliminary injunction in the Seigel case? That’s a possibility. We’ll have to just wait and see.
While this was not discussed with Nappen, but we can assume that he’ll be bringing up this case in a future episode of his Gun Lawyer Podcast. So tune in for more information on this case, the tragic consequences of New Jersey gun law, and all about the law-abiding criminals in the Garden State by clicking HERE.