Articles Posted in Gun Rights

Gun owners must always remember that the issuance of a domestic violence temporary restraining order, or TRO, can result in at least a temporary seizure of their weapons and firearms purchaser identification card.  On the surface, the typical chain of events is fairly straight forward.  A member of the same household complains of an alleged act of domestic violence.  The police arrive and, if previously provided with information concerning weapons in the home, seize the weapons and any related items including ammunition and the gun owner’s FID Card pursuant to a warrant.  The court will then conduct a hearing to determine, among other things, whether the weapons and other items can be returned to the gun owner.  The issue in Hemenway was the standard that should guide a court’s decision to issue to a domestic violence search warrant for weapons.  Specifically, the relevant statute and related cases referred to a “reasonable cause” standard for the issuance of such a warrant, and the Supreme Court was called upon to determine whether this standard passed Constitutional muster under the Fourth Amendment of the United States Constitution and the analogous provision of New Jersey’s Constitution.

The applicant in the underlying domestic violence case requested a TRO barring Defendant from, among other things, from possessing firearms, knives and a taser.  In court, the Family Part judge asked her whether she had an awareness that he had any weapons.  She responded affirmatively and the judge asked what kind of weapons did she claim he had.  She responded “handguns, knives”, to which the court replied “A handgun?”  She then stated “knives, blades”, to which the court replied “handguns?”  She then stated “switchblades”.  She also alleged that Defendant kept the weapons in three cars and his apartment.    Based upon this colloquy, the court entered a TRO and a search warrant to “search for and seize … handguns, knives, and switchblades” from Defendant’s home and three vehicles.  The court did not state a “reasonable cause” or “probable cause” basis for believing that Defendant possessed the weapons, or that they would be located in his home or vehicles.

Two officers met Defendant outside his home and told him that they had a warrant to search his residence for weapons.  Defendant was not permitted to call his lawyer , and was arrested when he refused to allow the officers into his home.  Upon entry, the officers saw what appeared to be cocaine and marijuana.  A detective then obtained a telephonic search warrant for Defendant’s cars and residence.  The search yielded drugs, ammunition and cash, but no weapons.  Defendant was charged with narcotics offenses.  His suppression motion was denied because the trial judge determined that the telephonic warrant was issued based upon probable cause to search the residence, and the domestic violence search stemmed from an independent and adequate basis to the cars.  The Appellate Division affirmed and the Supreme Court granted certification.

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Legislation governing the ownership and use of firearms, and the operation of gun shops, typically originates on the federal and/or state level.  As any New Jersey gun owner knows, our State already has some of the most restrictive gun laws in the country.  Certain cities and towns in different states including New Jersey are, however, apparently attempting to take action on the municipal level by implementing local ordinances that sharply restrict the operation of gun shops in their areas.

Officials in New Jersey who are purportedly fed up with what they perceive as insufficient federal or state action on gun control are using local-level policy rarely used to regulate gun dealers by adopting local zoning regulations that effectively ban gun shops from their municipalities.  Piscataway, a suburb of New Brunswick, does not have a single licensed gun dealer, and almost certainly will not at anytime in the near future. A Town Council resolution adopted on June 14 of this year is, in essence, designed to guarantee that a gun dealer cannot open in that town. The resolution bans gun stores from opening within 1,000 feet of schools, parks, health care facilities, and other locations that are viewed as sensitive. While the new zoning law does not explicitly forbid gun stores from opening in the town, it makes dealers subject to conditions that cannot be satisfied from any location in the municipality.

This is the first such ordinance in New Jersey, and one of several that have appeared in different municipalities all across the country. There are 24 municipalities in California with such location restrictions, and another two in New York. “There’s a growing concern about gun violence and the federal government’s inability to do anything comprehensive,” said Steven Cahn, the council member who drafted the ordinance. “The point is to demonstrate that as local officials, we’re not helpless. We can use our authority. Hopefully, other communities will do something similar.”

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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. Continue reading ›

Two recent decisions from the United States Court of Appeals for the Ninth Circuit send conflicting messages on gun rights.

In the earlier case, San Diego County required applicants for a concealed carry permit to show good cause for carrying a concealed weapon.  It was the County’s position that a generalized need for personal safety did not satisfy this requirement.  In February of this year, the  Ninth Circuit Court of Appeals found that the County’s policy abridged the right to bear arms recognized by the United States Supreme Court in the 2008 case of District of Columbia vs. HellerHeller focused on an individual’s right to keep and bear arms in their home for personal protection.  In the San Diego case, the Ninth Circuit built upon this and found that the right to keep and bear arms in self-defense “could not rationally be limited to the home.”  Accordingly, the Court found that a generalized need for self defense outside the home satisfied the good cause requirement, and rejected the County’s contrary position.

Many gun rights advocates view this as a major victory, at least in part because the decision comes from a Court that has historically been largely hostile to gun rights.  However, the Ninth Circuit’s decision is not necessarily a significant blow to unreasonable gun control regulations.  States and counties could satisfy the requirements of the Court’s decision by accepting that a generalized need for self defense satisfies the good cause requirement while, at the same time, enacting any number of factors that would automatically disqualify individuals from obtaining concealed carry permits.  This approach would effectively accept the proposition that a generalized need for self defense constitutes good cause for a concealed carry permit, but still allow the authorities to disqualify applicants for other purportedly unrelated reasons that would presumably be listed in the applicable State statute(s).  Such reasons could include a criminal record for an extremely minor, non-violent offense, or the proximity of the applicant’s home or workplace to a school, park, or other facility where small children congregate.

Additionally, the fight on this issue is probably not over.  The ruling runs contrary to decisions from Courts in New York, New Jersey and Maryland, but is consistent with a decision from Illinois.  Because of this conflict among the Courts and the importance of the issue, there is a strong likelihood that this case will go to the United States Supreme Court, and a final decision on the issue could still be years away.  Thus, gun rights advocates may find the Ninth Circuit case encouraging, but must also bear in mind that it probably is not the final word on the subject. Continue reading ›

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