New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

New Jersey Appellate Court Precludes Excessive Questions On Gun Permit Applications, But Requires Cooperation With Investigation Of Application

Michael McGovern applied for a Firearms Purchaser Identification Card (“FPIC”) and Handgun Purchase Permit (“HPP”) in Jersey City.  McGovern completed all of the standard application forms required by the New Jersey State Police.  Apparently, the State Police forms, which are required and authorized by statute, were not sufficient for the Jersey City Police Department (“JCPD”).  JCPD also asked him to fill out its own “Firearms Applicant Questionnaire”, as well as three other forms created by the JCPD Firearms Licensing Unit.  McGovern refused to complete the additional JCPD forms.  He was also asked to provide additional information concerning three Florida arrests that occurred 10 or more years ago, but did not do so.  JCPD disapproved McGovern’s application, and he requested a hearing in the Law Division of the Superior Court.  (Incidentally, JCPD was required by statute to act upon the application within 30 days.  It took the department five months to notify McGovern that he was denied.)  The Law Division refused to grant McGovern’s application, and he appealed.

On appeal, McGovern argued, among other things, that JCPD was expressly precluded by the gun permit statute from demanding information that was not required by applicable law.  As to this issue, the Appellate Division noted that the JCPD forms were problematic because they required substantially more information that that called for by the applicable statute and the State Police Forms.  The JCPD “Firearms Applicant Questionnaire” sought the applicant’s auto plate number, previous addresses, previous employer, as well as the names and ages of all people residing in the applicant’s household.  The Appellate Division observed that none of these items were required by the gun permit statute or the State Police forms.

Another JCPD form entitled Firearms Permit Applicant Domestic Violence Disclosure Form” asked whether the applicant, or any member of the applicant’s household was previously or presently the subject of a domestic violence complaint or restraining order.  The statute and State Police form asks only whether the applicant is currently subject to a restraining order, and whether the applicant has had a weapon seized because of domestic violence.  Further, the JCPD “Authorization Waiver to Release Information” requests the applicant to authorize the release of all information to the police, and to release all persons from any liability that may result from furnishing that information.  The statute only requires the applicant to waive the right to confidentiality relating to institutional confinement.  There was also an “Information Firearms Permit Recipients” form that required the applicant to acknowledge a series of legal statements pertaining to gun ownership.

In sum, all of these additional requests set conditions for the issuance of a handgun permit that was not required by the gun permit statute, or by the State Police forms.  Seeking information that was not required by the statute or State Police forms expressly contradicted the statutory requirement that the licensing municipality could not impose conditions or requirements exceeding those established by applicable law.  Accordingly, JCPD could not require applicants to provide information beyond that contemplated by the statute, or by the State Police.

The other issue before the Court concerned the extent to which McGovern was required to provide information concerning the Florida arrests, or whether JCPD had the burden of proving that the arrests were a valid basis for denying his application.  As to this issue, the Court ruled clearly that the police department receiving the application has the burden of proving that the applicant is not qualified to receive a handgun permit.  Thus, JCPD had the ultimate burden of proving good cause for denying McGovern’s application, and that burden could not be shifted to McGovern.  However, McGovern could not simply ignore JCPD’s requests for additional information concerning the Florida arrests.  Rather, he was required to provide JCPD with the requested information.

The “take away” from this decision is two-fold.  Local police departments cannot seek information from gun permit applicants beyond that contemplated by the relevant statute and State Police forms.  However, gun permit applicants must cooperate with the investigation of their application.  Such cooperation includes providing additional information that reasonably relates to the applicant’s fitness to receive an FPIC and/or HPP.

The Appellate Division’s decision may not be the last word.  An appeal to the New Jersey Supreme Court is expected in this case.  Stay tuned!