IN THE MATTER APPLICATION OF CHARLES BREITWEISER FOR A FIREARMS PURCHASER IDENTIFICATION CARD

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3826-05T53826-05T5

IN THE MATTER OF THE APPLICATION

OF CHARLES BREITWEISER FOR A

FIREARMS PURCHASER IDENTIFICATION

CARD.



Argued January 31, 2007 - Decided March 22, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr.

Rosenbach, of counsel and on the brief).

David J. Popiel argued the cause for respondent Charles Breitweiser (Community Health Law Project, attorney; Mr. Popiel, of counsel and on the brief).

PER CURIAM

At issue in the State's appeal is whether the trial court, on a hearing de novo from the local police chief's denial of permission to purchase a shotgun for hunting, erred in granting the application, subject to conditions that would allow respondent Charles Breitweiser, a person with disability, to operate a hunting shotgun safely. For reasons that follow, we affirm the Law Division's order of March 22, 2006.

Respondent suffers from a disability described by the trial judge:

His disability stems from an automobile accident that occurred when he was a teenager which resulted in Breitweiser having left hemparesis and homonymous hemianopsia. He is partially paralyzed on his left side, walks with a limp, and he has limited use of his left arm and hand. Breitweiser's left side peripheral vision is also partially limited and [he] has uninhibited use of his right arm, hand and leg.

"Hemiparesis" is "slight paralysis or weakness affecting the muscles on one side or half of the body." "Homonymous hemianopsia" is "[b]lindness which affects the outer half of the field of vision (i.e., the half on the side of the temple) in one eye, and the inner half of the field of vision (i.e., the half on the side of the nose) in the other eye." Attorneys' Dictionary of Medicine and Word Finder (vol. 3) at pages H-68 and H-171.

On March 8, 2005, respondent appeared in person at the East Brunswick Police Department and filed an application for a firearms purchaser identification card. On the application he answered "No" to the question: "Do you suffer from a physical defect or sickness?" He also answered "no" to the follow-up question: ". . . does this make it unsafe for you to handle firearms?" Though the application also was labeled as being an application to purchase a handgun, it is undisputed that respondent was seeking approval to buy a shotgun for hunting and target shooting.

Respondent returned the next day to provide the required fingerprints. The officer who took the prints observed the clearly visible effects of respondent's left-side disability. In light of respondent's obvious disability, the police department asked him to supply medical proof that he could safely handle a gun in spite of his disability. Complying with that request, respondent submitted a letter dated April 19, 2005, from his internist, Dr. Alario, which read:

Please be advised that my patient's Charles Breitweiser's physical limitations do not inhibit his ability to safely handle a firearm for his hunting license.

Please be in touch with me if you have any questions in this matter.

Pending decision on his application, on May 23, 2005, respondent appeared at a meeting of the East Brunswick Town Council and demonstrated an adaptive device--a "shooting stick" --that would permit him to use a firearm safely. He also met with members of the police department, Captain Mayer, Police Director Roberson, and Captain Wilkerson, on May 31, 2005. The police department asked respondent to provide two additional doctors' reports - from a neurologist and an eye doctor - but he did not.

On July 12, 2005, Captain Mayer denied the application, checking off three of the statutory reasons for disqualification listed at the bottom of the application: 1) public health, safety and welfare; 2) medical, mental or alcoholic background; and 3) falsification of application (based on his "No" answer to the question about physical defect). N.J.S.A. 2C:58-3c. Respondent filed a timely appeal to the Law Division, as permitted by N.J.S.A. 2C:58-3d, where a two-day de novo evidentiary hearing was conducted.

At trial, respondent denied any intent to mislead in completing the application, but rather intended to fully explain to the police department, through various literature, how certain adaptive devices for disabled hunters would enable him to safely operate his firearm. He described these devices as a bipod shooting stick specifically designed for firearms users with disabilities; an offset sight attached to a shotgun that will enable him to sight with his left eye; and other equipment that would allow him to sit while firing a shotgun from a steadying mount on the chair. Respondent further testified he is willing to accept any conditions on his gun permit that would enable him to hunt and target shoot, including the limitation to hunt with one or more companions to assist him on difficult terrain, help carry his adaptive equipment, build hunting blinds, track wounded deer, and gut and remove carcasses. Respondent is also willing to accept the condition that he pass the New Jersey licensing test for hunters before he is permitted to obtain his identification card, which is a series of examinations that includes gun firing sessions and a gun safety element.

At the conclusion of the evidence, Judge Ryan granted respondent's application subject to conditions:

ORDERED that Charles Breitweiser is eligible for a firearms purchaser identification card for the limited use of hunting and target shooting upon the following conditions being satisfied: passing the New Jersey licensing test for hunters; hunting or target shooting shall be with one or more accompanying shooters and shall use adaptive equipment for disabled hunters including but not limited to a bipod shooting stick and an

offset sight attachment to his shotgun to enable sighting from his left eye . . . .

On appeal, the State launches a multi-faceted challenge, contending that the trial court lacked the power to consider evidence not presented to the police chief; erred in disallowing the police request for additional medical information; lacked statutory authority to impose conditions on respondent's identification card; wrongly excused respondent's "lie" on the application form; and misapplied the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 to -12213, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We disagree.

As a threshold matter, we review the governing law. In order to purchase a rifle or shotgun, a firearms identification card must be obtained. N.J.S.A. 2C:58-3. The procedures and standards pertaining to such applications are prescribed by law. Ibid. Thus, a firearms purchaser identification card is required to be issued to any applicant who is "of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter." N.J.S.A. 2C:58-3c. There are eight enumerated exceptions, three of which are implicated here. First is the disability exception, which precludes issuance of a card

[t]o 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 such a manner that would interfere with or handicap him in the handling of firearms . . . .

[N.J.S.A. 2C:58-3c(3).]

Second, the statute disqualifies "any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card." N.J.S.A. 2C:58-3c(3). And third is the catch-all exception: "any person where the issuance would not be in the interest of the public health, safety or welfare". N.J.S.A. 2C:58-3c(5).

The initial decision is made by the chief of police of the municipality where the applicant resides. N.J.S.A. 2C:58-3d. Challenges to a denial of an application are directed to the Law Division:

Any person aggrieved by the denial of a permit or identification card may request a hearing in the Superior Court of the county in which he resides if he is a resident of New Jersey or in the Superior Court of the county in which his application was filed if he is a nonresident. The request for a hearing shall be made in writing within 30 days of the denial of the application for a permit or identification card. The applicant shall serve a copy of his request for a hearing upon the chief of police of the municipality in which he resides, if he is a resident of New Jersey, and upon the superintendent in all cases. The hearing shall be held and a record made thereof within 30 days of the receipt of the application for such hearing by the judge of the Superior Court. No formal pleading and no filing fee shall be required as a preliminary to such hearing. Appeals from the results of such hearing shall be in accordance with law.

[N.J.S.A. 2C:58-3d.]

The police chief's duty is to "investigate" an application and to grant the permit or identification card "unless good cause for the denial thereof appears." N.J.S.A. 2C:58-3f. In other words, the law presumes that a card should be granted to anyone of good character and repute. Weston v. State, 60 N.J. 36, 43 (1972). "The legislative language seems to impose on the Chief of Police a duty in the first instance to look with favor upon the grant of the application." Ibid. In this regard, it has been said that the law is designed to enable "the fit elements of society to obtain [firearms] with minimal burden and inconveniences." Burton v. Sills, 53 N.J. 86, 105 (1968), appeal dism'd, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed.2d 748 (1969).

The initial procedure before the police chief is an "administrative" one, in which the chief acts "informally" and without the need for "a trial-type hearing." Weston, supra, 60 N.J. at 43. But because the statute imposes a "good cause" test on any denial, the applicant should be granted the opportunity "to discuss the matter with the Chief, to be informed of the reasons for the denial and to offer any pertinent explanation or information for the purpose of meeting the objections being raised." Id. at 43-44. It is at that stage that the applicant must be allowed to submit the medical evidence that any disability would not interfere with his or her handling of firearms, as permitted by the statute (now N.J.S.A. 2C:58-3c(3)). Id. at 44.

Judicial review of the administrative decision is de novo, and a hearing is required in order to compensate for the "absence of any meaningful participation by the interested party in the process by which" the chief renders the initial decision. Id. at 45. The Weston Court explained:

[T]he basic justice aimed at by the Legislature in expressly providing for judicial review, can be achieved fairly only by a de novo hearing in the County Court. De novo in this context contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court. Such a judicial review compensates constitutionally for procedural deficiencies before the administrative official.

[Ibid.]

Moreover, the statute's good-cause-for-denial standard demands that the police chief assume the proof burden, and that the chief must carry that burden by a "fair preponderance of the evidence." Id. at 46. Of course, the court "should give appropriate consideration to the Chief's investigative experience and to any expertise he appears to have developed in administering the statute." Ibid. "Review must be practical as well as responsible to the public." In re Application of Clark, 257 N.J. Super. 152, 154 (Law Div. 1992).

Governed by these standards, we discern no reason to disturb the Law Division's determination. Contrary to the State's contention, which advocates a much higher degree of deference to the administrative decision than contemplated by a de novo proceeding, the first level of judicial review does not employ an abuse-of-discretion standard, but rather involves "independent judgment." Weston, supra, 60 N.J. at 45. No more deference to the police chief is required than a court chooses to extend after considering his or her experience and expertise. Id. at 46. Moreover, there is no prohibition on the introduction of new evidence before the Law Division. Indeed, Weston expressly allows it. Id. at 45.

Nor was there error in not upholding the police chief's demand for additional medical certificates. On this score, the judge reasoned:

The East Brunswick Police Department's denial of Breitweiser's application without considering whether his use of adaptive devices would enable him to meet the essential eligibility criteria amounted to a refusal to modify their usual procedures so as to accommodate the applicant's disability. Such a refusal is non-conforming to the licensing scheme of this State's firearms licensing statute. Breitweiser's proposed offering of adaptive devices and other precautionary means meets this standard. The statute permits applicants to "produce a certificate of a medical doctor . . . or other satisfactory proof." N.J.S.A. 2C:58-3c(3). Requiring that Breitweiser nonetheless produce two further certificates was a violation of a statutory scheme and an act of discrimination on the basis of disability.

We agree that Dr. Alario's submission, asserting that respondent's disability did not interfere with his "handling of firearms", qualifies as the "certificate" required by N.J.S.A. 2C:58-3c(3), and that the statute requires no more. The State fails to explain otherwise and neither requested Dr. Alario to supplement his original submission to answer any residual questions the police chief may have harbored, nor challenged the medical opinion with expert proof of its own. In any event, the statute does not limit the acceptable proof to a doctor's certificate; it also permits "other satisfactory proof." N.J.S.A. 2C:58-3c(3). Here, respondent offered such proof to the police, in the form of evidence about certain adaptive devices for disabled hunters. Thus, the trial judge reasonably and properly considered such other proof in lieu of requiring medical certificates in addition to the one offered pursuant to the statute. And lastly, the licensing authority may not add to the requirements for an application by requiring more than what the statute demands. N.J.S.A. 2C:58-3f.

The State next contends that the court was without authority to impose conditions on issuance of the firearms purchaser identification card, which, according to N.J.S.A. 2C:58-3f, must be unqualified. To be sure, N.J.S.A. 2C:58-3f forbids the "licensing authority" from imposing extra "conditions or requirements" on the "form or content of the application" or on the "issuance" of the identification card. However, the proscription adheres to the "licensing authority," not the reviewing court. In fact, by virtue of N.J.S.A. 2C:58-3d, the Legislature vested the court with the power to adjudicate an applicant's challenge to a police chief's denial. It did not restrict the scope of the court's permitted dispositions. Given the unqualified power to adjudicate this kind of dispute in a de novo proceeding, it stands to reason that the court must also have the power to qualify its decision. Certainly, a court's power to issue a judgment or order necessarily encompasses the power to include conditions in that judgment or order. "[T]he inherent power of the court to fashion needed and appropriate remedies to meet particular circumstances is without question and is as expansive as the need and circumstances require." State v. Farquharson, 280 N.J. Super. 239, 247 (App. Div), certif. denied, 142 N.J. 517 (1995).

The State's contrary interpretation of N.J.S.A. 2C:58-3f is simply too literal. "[S]tatutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as 'consonant to reason and good discretion.'" In re Westinghouse Elec. Corp. - Bloomfield, 324 N.J. Super. 425, 435 (App. Div. 1999) (quoting In re Adoption of N.J.A.C. 7:11, 149 N.J. 119, 127-28 (1999)). See also Guiseppi v. Walling, 144 F.2d 606, 624 (2nd Cir. 1944) (Hand, J.) ("There is no surer way to misread any document than to read it literally."). "[W]here a literal reading of the statute leads to absurd consequences the court must restrain the words and seek the true legislative intent." Parker v. Esposito, 219 N.J. Super. 560, 566 (App. Div. 1996).

Reason suggests that the proscription against conditions that make it harder for applicants to obtain firearms purchaser identification cards does not pertain to requirements that are part and parcel of an applicant's ability to use firearms safely. Here, respondent agrees to the conditions imposed by the trial court. Moreover, the very disability exception relied on by the State to disqualify respondent contemplates, at least by implication, that a firearms identification card may be conditioned on the applicant's taking steps to mitigate the effect of his or her disability. Thus, it allows a disabled person who suffers from a current condition that would make it unsafe to handle firearms to submit proof that he or she is not currently impaired "in such a manner that would interfere with or handicap him in the handling of firearms." N.J.S.A. 2C:58-3c(3). Nowhere does this provision prohibit an applicant from using adaptive devices or human assistance to meet the proof requirement. Here, respondent supplied ample evidence that, subject to the conditions to which he consented, he could operate his shotgun safely, a finding that the State challenged neither below nor on appeal. Under the circumstances, we find no fault with the grant of the conditional license.

Lastly, the State contends that respondent is automatically disqualified for falsifying his application. We disagree. N.J.S.A. 2C:58-3c(3) disqualifies an applicant "who knowingly falsifies any information on the application form". However, the trial judge found that respondent did not intend to mislead but instead to fully explain, through various literature to the Police Department, how certain adaptive devices for disabled hunters would enable him to safely operate his firearm. The judge thus concluded:

In analyzing the relevant statutory text, resort must be had not just to the words used within the confines of a particular section of the statute involved, but to those words read in connection with the entire enactment of which it is an integral part. See: Sheffield Farms Co., Inc. v. McDonough, 22 N.J. 548, 554 (1956). Breitweiser did not intend to deceive the East Brunswick Police Department with respect to his disability when he answered question 22 in the negative. The fundamental purpose of the firearms purchaser identification card rule lies in the language that calls for awarding such licenses to any "person of good character and good repute in the community . . ." unless they fall into one of the subsequently enumerated categories. N.J.S.A. 2C:58-3c. The "fit elements of society" are to obtain firearms with minimal burdens and inconveniences. See: Application of Marvin 53 N.J. 147, 150 (1969). Thus the purpose of the enumerated disqualifications is to weed out criminal and other unfit elements, i.e., those who are not of good character and good moral repute. Id. Therefore, to falsify with knowledge is akin to intent to deceive.

Here, Breitweiser's actions in making an attempt to speak with the various ranking police officers, appearing before his Town Council and presenting a valid medical doctor's letter explaining that his disabilities do not hamper his capacity to handle a firearm all substantiate his good

moral character that merits the award of a firearms license.

We agree.

Undoubtedly, respondent never intended to conceal his disability, which was highly visible and obvious at all times, and instantly recognizable to the police who dealt with him, either at initial intake or thereafter. Indeed, respondent submitted to the required procedure of fingerprinting one day after he filed his application. Thereafter, he took affirmative steps to bring his disability to the attention of both the police and the public when he appeared at Town Council and met with officers from the police department. At both times, he attempted to explain how he could hunt safely in spite of his disability. Thus, as did the trial judge, we find no proof of any intent to deceive or mislead as to the nature of respondent's disability and certainly the police did not rely on the misstatement to the public detriment. Accordingly, we find no statutory disqualification for a "knowing falsification."

Having found that the firearms purchaser identification card was validly issued, we need not further decide whether the conditions placed on the grant would otherwise have been mandated as reasonable accommodations to respondent's disability required by federal (ADA), 42 U.S.C. 121.32, and State (LAD) law, N.J.S.A. 10:5-4.1. Suffice it to say, the East Brunswick police department denied respondent's application without considering whether his use of adaptive devices would satisfy the statutory eligibility criteria. In light of opposing proof that respondent's disability posed no such impediment, such an omission was fatal to its burden of proving, on judicial review, "good cause" for its denial.

Affirmed.


Though Weston was decided under the similarly worded predecessor statute, its analysis applies to N.J.S.A. 2C:58-3 as well. In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).

In justifying conditions, the trial court cited N.J.S.A. 2C:58-4d, which allows a "limited-type permit . . . restrict[ing] the applicant as to the types of handguns he may carry and where and for what purposes such handguns may be carried." We agree with the State that N.J.S.A. 2C:58-4d, by its terms, applies only to handgun carry permits.

(continued)

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A-3826-05T5

March 22, 2007