Piszczatoski v. Filko

• Decision Date: 12 January 2012
• Docket Number: Civ. No. 10–06110 (WHW).
• Citation: 840 F.Supp.2d 813
• Court: U.S. District Court — District of New Jersey
• Parties: Daniel J. PISZCZATOSKI; John M. Drake; Gregory C. Gallaher; Lenny S. Salerno; Finley Fenton; Second Amendment Foundation, Inc.; and Association of New Jersey Rifle & Pistol Clubs, Inc., Plaintiffs, v. The Hon. Rudolph A. FILKO, in his Official Capacity as Judge of the Superior Court of Passaic County; The Hon. Edward A. Jerejian, in his Official Capacity as Judge of the Superior Court of Bergen County; The Hon. Thomas A. Manahan, in his Official Capacity as Judge of the Superior Court of Morris County; Col. Rick Fuentes, in his Official Capacity as Superintendent of the New Jersey State Police; Chief Robert Jones, in his Official Capacity as Chief of the Hammonton, New Jersey Police Department; Chief Richard Cook, in his Official Capacity as Chief of the Montville, New Jersey Police Department; and Paula T. Dow, in her Official Capacity as Attorney General of New Jersey, Defendants.

840 F.Supp.2d 813

Daniel J. PISZCZATOSKI; John M. Drake; Gregory C. Gallaher; Lenny S. Salerno; Finley Fenton; Second Amendment Foundation, Inc.; and Association of New Jersey Rifle & Pistol Clubs, Inc., Plaintiffs,

v.The Hon. Rudolph A. FILKO, in his Official Capacity as Judge of the Superior Court of Passaic County; The Hon. Edward A. Jerejian, in his Official Capacity as Judge of the Superior Court of Bergen County; The Hon. Thomas A. Manahan, in his Official Capacity as Judge of the Superior Court of Morris County; Col. Rick Fuentes, in his Official Capacity as Superintendent of the New Jersey State Police; Chief Robert Jones, in his Official Capacity as Chief of the Hammonton, New Jersey Police Department; Chief Richard Cook, in his Official Capacity as Chief of the Montville, New Jersey Police Department; and Paula T. Dow, in her Official Capacity as Attorney General of New Jersey, Defendants.

Civ. No. 10–06110 (WHW).

United States District Court, D. New Jersey.

Jan. 12, 2012.

David Douglas Jensen, David Jensen PLLC, New York, NY, for Plaintiffs.

Gregory A. Spellmeyer, Office of the NJ Attorney General, Trenton, NJ, Paul L. Abramo, Newton, NJ, for Defendants.

OPINION

WALLS, Senior District Judge.

This case presents a facial challenge to the constitutionality of the New Jersey law governing permits to carry handguns. The challenged provisions in N.J. Stat. § 2C:58–4 and the attendant regulations (the “Handgun Permit Law”) require permit applicants to demonstrate a “justifiable need to carry a handgun,” first to a police official and then to a Superior Court judge. N.J. Stat. Ann. § 2C:58–4(c)–(d) (2011).

The plaintiffs, five individuals denied handgun permits and two issue advocacy organizations, assert that the Handgun Permit Law is facially unconstitutional because it encroaches upon an alleged fundamental right to carry operable handguns for self-defense under the Second Amendment of the United States Constitution. Compl. ¶ 91. The plaintiffs allege that the Handgun Permit Law vests “uncontrolled discretion” in state officials to deny permits, which they challenge as a prior restraint. Id. ¶¶ 101–04. The plaintiffs further allege that requiring an applicant to demonstrate a “justifiable need” for self-protection is an impermissible burden on the asserted Second Amendment right. Id. ¶¶ 107–09.

The plaintiffs move for summary judgment seeking declaratory and injunctive relief. The defendants oppose this motion and cross-move to dismiss the case for failure to state a claim. Oral argument was heard on both motions.

At the outset, it is noted to any reader of this Opinion that this Court shall be careful—most careful—to ascertain the reach of the Second Amendment right that the plaintiffs advance. That privilege is unique among all other constitutional rights to the individual because it permits the user of a firearm to cause serious personal injury—including the ultimate injury, death—to other individuals, rightly or wrongly. In the protection of oneself and one's family in the home, it is a right use. In the deliberate or inadvertent use under other circumstances, it may well be a wrong use. A person wrongly killed cannot be compensated by resurrection.

The Court finds that the Handgun Permit Law is not facially unconstitutional. The Handgun Permit Law does not on its face burden protected conduct because the Second Amendment does not include a general right to carry handguns outside the home. Alternatively, if the scope of the Second Amendment were interpreted to include a right to carry handguns outside the home for self-defense, the Court finds that the challenged provisions do not on their face unconstitutionally burden the protected conduct. The prior restraint doctrine does not apply in the Second Amendment context and would be inapposite because the statutory scheme does not vest uncontrolled discretion in state officials to deny permits. The justifiable need requirement survives intermediate scrutiny because it is sufficiently tailored to governmental interests in regulating the possession of firearms outside the home. The Court denies the plaintiffs' motion for summary judgment and grants the defendants' motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Using a “careful grid of regulatory provisions,” New Jersey closely regulates the possession and use of firearms within the state. In re Preis, 118 N.J. 564, 573 A.2d 148, 150 (1990). The possession of firearms is a criminal offense unless a specific statutory exemption applies. N.J. Stat. Ann. § 2C:39–5 (2011). These exemptions generally allow eligible individuals to carry firearms for specific purposes, such as hunting or target practice. Id.§ 2C:39–6(f)(1)–(2). The exemptions “draw careful lines between permission to possess a gun in one's home or place of business and permission to carry a gun.” In re Preis, 573 A.2d at 150 (citations omitted). A person may generally keep or carry firearms “about his place of business, residence, premises or other land owned or possessed by him.” N.J. Stat. Ann. § 2C:39–6(e) (2011). This exemption also allows for the secure transportation of unloaded firearms between a person's dwelling and place of business. Id. Outside one's home, property, or place of business, the exemptions allowing possession and use of firearms are otherwise more restricted.

The plaintiffs challenge only the limited exemption that permits a person to carry a handgun for self-defense outside his or her home, property, or place of business. Unless a specific statutory exemption otherwise applies, a person may legally carry a handgun for self-defense only if that person first applies for and obtains the necessary permit. Id.§ 2C:39–5(b). To qualify for a permit under the Handgun Permit Law, an applicant must demonstrate that he or she (1) is a person of good character who is not otherwise disqualified as a result of any statutory disabilities, (2) is thoroughly familiar with the safe handling and use of handguns, and (3) “has a justifiable need to carry a handgun.” Id.§ 2C:58–4(d).

New Jersey courts use a “core substantive standard” to determine whether there is “justifiable need” for a private citizen to be issued a permit to carry a handgun. In re Preis, 573 A.2d at 151–52. This standard requires “an urgent necessity for self-protection” based on “specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means.” Id. at 152 (citing Siccardi v. State, 59 N.J. 545, 284 A.2d 533, 540 (1971)). Neither “generalized fears for personal safety” nor the “need to protect property alone” satisfy the standard. Id. New Jersey's permit to carry regulation reflects this standard, requiring applicants to submit written certification of justifiable need which details

the 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. Where possible the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of such incidents to the appropriate law enforcement agencies....

N.J. Admin. Code § 13:54–2.4(d)(1) (2011).

The application process for handgun permits involves several tiers of review. Permit applications are first presented for investigation and preliminary approval to a designated police official, either the chief of police of the municipality in which the applicant resides or, under certain circumstances, the state police superintendent. N.J. Stat. Ann. § 2C:58–4(c) (2011). If the police official denies the initial application, then the applicant may request a hearing before a judge on the New Jersey Superior Court. Id. § 2C:58–4(e). If the police official approves the initial application, then the applicant presents his or her application to a Superior Court judge for final approval and issuance. Id. § 2C:58–4(d). If the judge is satisfied that the applicant meets the requirements, the court must approve the application and issue the permit. Id. Any determination that the applicant does not meet the permit requirements is subject to full appellate review. Id. § 2C:58–4(e). See In re Preis, 573 A.2d at 150;In re Application of Borinsky, 363 N.J.Super. 10, 830 A.2d 507, 508 (N.J.Super.Ct.App.Div.2003).

On November 22, 2010, the plaintiffs filed the complaint in the current action as a facial constitutional challenge to the Handgun Permit Law. Individual plaintiffs Daniel J. Piszczatoski, John M. Drake, Gregory C. Gallaher, Lenny S. Salerno, and Finley Fenton are each a New Jersey resident who asserts that his application for a handgun permit was denied under the challenged law solely on the grounds that he lacked a justifiable need to carry a handgun. Compl. ¶¶ 30–82. Jeffrey M. Muller was originally the lead plaintiff in this case, but he was granted a permit while this case was pending. Mots. Hr'g Tr. 3, Oct. 27, 2011. Muller's claims are now moot and were dismissed by stipulation of the parties on November 1, 2011. Stipulation of Dismissal & Substitution ¶ 1. Organizational plaintiffs Second Amendment Foundation, Inc. (“SAF”) and Association of New Jersey Rifle & Pistol Clubs, Inc. (“ANJRPC”) are non-profit advocacy groups that bring this suit on behalf of their membership, which includes individuals who have been denied permits or who have not applied for permits because they failed to meet the justifiable need requirement. ¹ Compl. ¶¶ 83–89; Pls.' Reply Br. 6–7.

Defendants are state and local officials sued in their official capacities based on their responsibility for approving applications for permits to carry handguns or otherwise executing and administering New Jersey handgun laws and regulations. New Jersey Superior Court Judges Edward A. Jerejian, Rudolph A. Filko, and Thomas A. Manahan are sued based on their designated...