IN RE APPLICATION OF DENNIS PETERSON FOR FIREARMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3699-06T53699-06T5

IN RE APPLICATION OF DENNIS

PETERSON FOR FIREARMS

IDENTIFICATION CARD

_____________________________

 

Argued January 14, 2008 - Decided

Before Judges A. A. Rodr guez and Collester.

On appeal from New Jersey Supreme Court, Law

Division, Warren County, A-01-07-2112.

Tara J. Kirkendall, Assistant Prosecutor,

argued the cause for appellant, State of New

Jersey (Thomas S. Ferguson, Warren County

Prosecutor, attorney; Ms. Kirkendall, of

counsel and on the brief).

Evan F. Nappen argued the cause for respondent

Dennis Peterson.

PER CURIAM

The Warren County prosecutor appeals from the February 27, 2007 order of the Law Division granting Dennis Peterson's application for a firearms purchaser identification card (FPIC). We reverse.

Peterson made application on October 3, 2006 for a FPIC. On December 19, 2006, the Independence Township police chief denied the application on grounds that Peterson did not disclose a prior criminal history, that he falsified his application, and that the issuance of a FPIC to him was not in the best interests of public health, safety, and welfare. After Peterson appealed, the State added as a reason for denial of the permit that Peterson previously had weapons seized following a complaint of domestic violence and entry of a temporary restraining order (TRO) that were not returned to him. The prosecutor cited N.J.S.A. 2C:58-3(c)(8), enacted in 2004, which provides that:

No handgun purchase permit or firearms purchaser identification card shall be issued . . . [t]o any person whose firearm is seized pursuant to the "Prevention of Domestic Violence Act of 1991," P.L. 1991, c. 261 (2C:25-17 et seq.) and whose firearm has not been returned.

At the hearing it was disclosed that in late 2000, Peterson's former wife told him that she wanted to divorce him. Peterson made threats to beat or kill her co-worker and burn down the store where she worked even if she was inside. She then filed a domestic violence complaint. While serving the TRO, the police seized ten weapons from Peterson's home: two BB guns, two .22 caliber handguns, four shotguns, and two high-powered hunting rifles. On October 26, 2000, the TRO was vacated after Peterson appeared before the Family Court and agreed not to engage in any harassing conduct or communication with his former wife or the other man.

The Independence Township police turned over the firearms to the Warren County Prosecutor's Office on November 1, 2000, and the following day the prosecutor petitioned to have the weapons forfeited. Peterson said he could not regain possession of the firearms because he did not have a permit for the handguns or a FPIC for the others. On March 22, 2001, a consent agreement was reached between Peterson and the prosecutor's office to transfer the BB guns, one of the .22 caliber guns, the shotguns, and one of the high-powered hunting rifles to a third party. By the terms of another consent order on March 27, 2001, Peterson agreed to forfeit the other .22 caliber gun and hunting rifle to the State. Six years later on October 3, 2006, Peterson applied for the FPIC, and was rejected by the chief of police.

Following the hearing on appeal to the Law Division, the judge issued an order accompanied by a written decision granting Peterson's application for a FPIC. The judge found that Peterson credibly testified that he had not knowingly provided false answers respecting the thirty-seven-year-old offenses and determined that issuance of a FPIC to Peterson would not be contrary to public health, safety, and welfare because he had remarried, had a responsible job, and posed no public threat.

The court also rejected the State's argument that Peterson should be precluded by N.J.S.A. 2C:58-3(c)(8) from obtaining a FPIC as a "person whose firearm was seized pursuant to the 'Prevention of Domestic Violence Act of 1991' . . . and whose firearm has not been returned," because it was unfair and inappropriate to apply the statute to Peterson since it was enacted three years after he voluntarily consented to the forfeiture of his weapons.

In his written opinion the judge stated:

The Prosecutor seeks to subject the applicant to a provision of the statute that was not in effect at the time the applicant engaged in the conduct covered by the statute. The applicant argues that the enforcement of such a limitation on his ability to obtain a firearms purchaser identification card violates notions of fundamental fairness. This Court agrees. . . . Egregious deprivation would surely be the result if this applicant were precluded from obtaining a firearms purchaser identification card by virtue of the fact that he consensually surrendered his weapons at a time when it was impossible for him to have known that such action would later subject him to lifelong deprivation of his second amendment right.

Therefore, the trial judge held that despite the language of N.J.S.A. 2C:58-3(c)(8), there is no prohibition for a person obtaining a FPIC when his weapons were seized prior to the enactment of the statute. We disagree.

Recently, in M.S. v. Millburn Police Department, 395 N.J. Super. 638 (App. Div.), certif. granted, 193 N.J. 223 (2007), we dealt with the same issue. In that case the plaintiff's former wife obtained a final restraining order, and the police seized five weapons and the plaintiff's FPIC. The prosecutor filed a petition for forfeiture of the weapons, and M.S. signed a consent judgment which permitted him to sell the five weapons to a registered firearms dealer. The FPIC remained in the possession of the police department. Subsequently, M.S. filed an action in lieu of prerogative writs for the return of his FPIC. The civil judge granted the motion.

On appeal we reversed, stating:

The issue raised by M.S. is that Section 58-3c(8), which was not in effect at the time of the forfeiture judgment, should not be applied to his application. We conclude that it should be applied because it was the governing law at the time that M.S. moved for the return of the FPI. It is inconsequential that up until January 4, 2004, the prohibition set by section 3c(8) did not exist. The Legislature, by enacting that section, provided the standard to be applied for future application for a FPI, or by inference, return of a seized FPI. In deciding M.S.'s application, which was filed in 2005, the judge had to apply the existing standard. By its terms, N.J.S.A. 2C:58-3c(8) applies to prior seizures of firearms. Yet, there is nothing in the statute that "grandfathers in" seizures that preceded the enactment of this section. Moreover, such an exemption would not advance the policy embodied in section 3c(8).

[Id. at 642-43.]

Peterson argues that the application of N.J.S.A. 2C:58-3(c)(8) to past conduct exposes him to potential punishment in violation of the ex post facto clause of the United States Constitution, Art. 1, Section 9, and the New Jersey Constitution, Art. IV, Section 8, par. 3. The constitutional protection proscribes in part the enactment of laws imposing punishment for acts not punishable at the time they were committed or adding additional punishment after the commission of the punishable acts. State v. T.P.M., 189 N.J. Super. 360, 366-67 (App. Div. 1983). Peterson argues that the statute is penal in nature since its authority is derived from the Prevention of the Domestic Violence Act of 1991, N.J.S.A. 2C:25-17, and that the forfeiture of the firearms was pursuant to the criminal code statute of N.J.S.A. 2C:25-21 as well as the Firearm Licensing Act itself under N.J.S.A. 2C:58-3c(8). He argues that if 2C:58-3c(8) is applied retroactively, he suffers substantial deprivation of his right to bear arms under the Second Amendment of the United States Constitution and that he is exposed to potential criminal penalties if he acquires or possesses a firearm even though that conduct would not have been punishable prior to the enactment of the statute.

We reject the argument. N.J.S.A. 2C:58-3 is a regulatory statute controlling the possession and transfer of weapons, not a penal statute. In Doe v. Poritz, 142 N.J. 1, 46 (1995), our Supreme Court stated that when considering a statute to determine if it is regulatory or punitive, the intent of the Legislature must be understood. If the intent is punitive, the law cannot apply to prior conduct that was not subject to punishment. Ibid. If the intent was regulatory, the evaluation turns on the impact of provision. Ibid. Moreover, if the punitive impact is an inevitable consequence of the regulatory provision, the law will still be considered regulatory, for it is only when the punitive aspect is unnecessary to accomplish the regulatory purpose that the law is deemed to be punitive and will not stand to punish prior conduct. Ibid.

Peterson did not have his weapons returned following the domestic violence incident because he agreed to forfeit his interest in the weapons. N.J.S.A. 2C:58-3(c)(8) imposed upon him the inability to obtain further firearms not as an additional punishment under the domestic violence law, but to accomplish the regulatory purpose of preventing those persons whose weapons were seized during a domestic violence incident and not returned from obtaining a FPIC or permit to purchase firearms in the future. The punishment for violation of N.J.S.A. 2C:58-3(c)(8) is based on a subsequent offense rather than the prior conduct. Therefore, the statute is regulatory rather than punitive. See United States v. Salerno, 481 U.S. 739, 747, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987); De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1155, 4 L. Ed. 2d 1109, 1120 (1960); State v. Rowe, 116 N.J.L. 48, 56 (Sup. Ct. 1935), aff'd, 122 N.J.L. 466 (E & A 1939).

Peterson's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Reversed.

(continued)

(continued)

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A-3699-06T5

February 11, 2008