IN THE MATTER OF THE DENIAL OF AN APPLICATION FOR A NEW JERSEY FIREARMS PURCHASER IDENTIFICATION CARD BY L.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T3

IN THE MATTER OF THE

DENIAL OF AN APPLICATION

FOR A NEW JERSEY FIREARMS

PURCHASER IDENTIFICATION

CARD BY L.H.

_________________________

October 28, 2014

Submitted October 15, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. GP-2012-01.

Evan F. Nappen, attorney for appellant L.H. (Richard V. Gilbert, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

L.H. appeals from a June 5, 2013 order of the Law Division1 upholding a municipal police chief's denial of her application for a New Jersey Firearms Purchaser Identification Card (FPIC) and a handgun purchase permit (handgun permit or permit). For the reasons that follow, we affirm. Our decision is without prejudice to L.H.'s right to reapply for a FPIC and handgun permit in the future, based on her circumstances at the time of that application.

I

L.H.'s application followed the seizure of a loaded shotgun from her home, where it was lying on her bed, and the refusal by the police to return it unless she applied for a FPIC and a handgun permit.2 In a letter dated December 8, 2011, the Police Chief denied L.H.'s application as being contrary to the "best interest of public health, safety and welfare," pursuant to N.J.S.A. 2C:58-3(c)(3) and (5).

The Chief's letter recited that L.H.'s husband had called the police to the family home on April 9, 2010 and asked them to remove a loaded shotgun from the house. Later that day, the husband called the police and expressed concerns about L.H.'s mental health. According to the Chief's letter, when the police arrived in response to the call, L.H. was in an "irrational state." She assaulted one of the officers, and stated that she would "shoot" her son if he came onto her property. After being transported to a mental health crisis unit, L.H. told the staff that she "hoped" her son would be "scared by the presence of the shotgun." The letter noted that a copy of the police report was attached.3 As the letter noted, L.H. was charged with aggravated assault on a police officer as a result of the incident at the house.

L.H. filed an appeal to the Law Division. We summarize the most pertinent evidence introduced at the appeal hearing.4 As background, Lieutenant Textor, who had investigated the application, summarized his findings, which were generally consistent with the contents of the Chief's letter. The judge accepted this information as hearsay subject to corroboration.

Taken as a defense witness out of turn, L.H.'s former pastor testified to her calm demeanor and mental stability. The pastor had observed L.H.'s adult son behave toward her in a hostile and disrespectful way on several occasions, although the son did not act in a physically threatening manner. The pastor's wife offered similar testimony as to L.H.'s generally calm demeanor and mental stability. However, on the evening of April 9, 2010, the wife observed that L.H. was very upset because, at a hearing the previous day, the court had refused to enter a domestic violence final restraining order (FRO) against her son. L.H. said that she felt betrayed because her husband had given testimony favorable to the son at the restraining order hearing. L.H. also told the pastor's wife that she was afraid of her son. The wife, however, testified that she would have no safety concerns if she knew that, later that day, L.H. had left a loaded shotgun on her bed.

On the next hearing day, Officer Frank Kuhl testified about the April 9, 2010 incident. At about 9:00 p.m. that evening he arrived at L.H.'s residence in response to a call from her husband, who had expressed "concern for her mental health." As the two men climbed the stairs to the living area,5 Kuhl heard L.H. "screaming" to her husband "that her gun was stolen, and she was accusing him of stealing the gun." She seemed "very agitated." Kuhl tried to explain to her that the police had taken the gun from the house earlier that day. He told her that the police had seized the gun after her husband had called and expressed concern that she was "mentally unstable . . . and that she intended to use it on [her son]."

L.H. responded by accusing the police of "stealing her gun." According to Kuhl, "[s]he was screaming, -- walking frantically around the room that we were in." He asked her why she needed the gun, and she responded that "she needed the gun in the event that [her son] responded to her house, she was going to shoot him." Kuhl confirmed that when she said this, she was "still yelling." She continued "walking as fast as she could around the house, just appeared to be extremely excited as if she just couldn't control herself to stay in one place." At one point, she called 9-1-1, and Kuhl took the phone and explained to the operator that the police were already at the house.

After observing L.H., and speaking further to her husband, Kuhl concluded that she was a danger to herself and others, and should be taken to the local crisis center for a mental health evaluation. Kuhl called his sergeant to ask for assistance in transporting her. He also advised L.H. that the police would be taking her to the crisis center to be evaluated. At that point, Kuhl was standing in the hall doorway, and L.H. attempted to push past him to leave the residence. He "grabbed her right wrist with [his] left hand to stop her from leaving." In response, L.H. "turned around and punched" the officer in the chest. She also grabbed his Maglite flashlight and tried to hit him with it. As a result, Kuhl handcuffed her and arrested her for assaulting an officer, and took her to the crisis center. According to Kuhl, during the entire trip to the center, L.H. continued screaming at him.

On cross-examination, Kuhl testified that L.H. told him that she was afraid of her son and wanted the gun "in case he came after her." He agreed that when he arrived at the house, L.H. was dressed for bed in a nightgown. He allowed her to get dressed before leaving the house. On re-direct, he explained that the flashlight L.H. grabbed from him was heavy and designed to be used as a weapon if needed. She swung the flashlight at him within seconds after punching him, and Kuhl believed she intended to hit him with the flashlight. Based on his observations, he did not believe she was mentally stable at the time. On re-cross, Kuhl admitted that he was unaware of any more recent similar incidents involving L.H.

After the court denied a motion to dismiss, L.H.'s counsel called a witness who testified that L.H.'s son was obnoxious and aggressive. The witness also testified that he had gone hunting with L.H. many times in the past, and she was a responsible gun owner.

L.H. testified that she was seventy-one years old, and farmed for a living. She had lived in Alaska for ten years and had always kept a gun handy to scare away bears. She testified to a recent history of conflict with her son, who could be violent and ill-tempered. In April 2010, she obtained a domestic violence temporary restraining order (TRO) against him. However, at an April 8, 2010 hearing, the judge refused to issue a FRO. L.H. was angry at her husband for testifying in favor of the son at the FRO hearing. According to L.H., that night her husband slept at another house, and she kept the shotgun with her in her bed because she was afraid. The next night, her husband called to say that he would be coming home. She dressed for bed, noticed the shotgun was missing, and thought it was stolen.

L.H. testified that she was shocked when a police officer arrived with her husband, and she could not understand why the officer wanted to take her to the hospital. She thought maybe her husband had "hired someone" to take her away. She explained that she panicked and the officer seemed angry. She testified, "I wasn't being a lady and he wasn't being a gentleman." However, she denied hitting Kuhl or trying to hit him. She stated "we were both out of control." According to L.H., at the time of the permit hearing, she had not seen her son since 2010.6

In an oral opinion placed on the record on June 5, 2010, the trial judge found that Office Kuhl's version of events was more credible than L.H.'s version. Considering L.H.'s conduct during the incident in which she assaulted Kuhl, and the events leading up to that incident, the judge found that giving L.H. a FPIC and a handgun permit would be contrary to the public welfare. N.J.S.A. 2C:58-3(c)(5).

II

On this appeal, L.H. raises the following points for our consideration

POINT I

THE COURT BELOW ERRED BY FINDING THAT [L.H.] IS A DANGER TO THE PUBLIC HEALTH, SAFETY, [OR] WELFARE.

POINT II

THE COURT BELOW ERRED BY PROVIDING NO FORM OF REDRESS.

POINT III

[L.H.] SHOULD NOT BE DENIED HER INDIVIDUAL, FUNDAMENTAL, CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARMS.

Having reviewed the record, we find no merit in any of those contentions.

On this appeal, our review of the trial court's decision is limited. As summarized by the Supreme Court

Ordinarily, an appellate court should accept a trial court's findings of fact that are supported by substantial credible evidence. Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice. Consequently, "an appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." If, however, an appellate court is reviewing a trial court's legal conclusions, the same level of deference is not required.

[In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17 (1997) (citations omitted).]

The Gun Control Law recognizes that the right to possess firearms is presumed, except for certain good cause

No person 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, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

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

In relevant part, the statute provides that no permit or FPIC shall be issued to a convicted criminal, N.J.S.A. 2C:58-3(c)(1), or "[t]o any person where the issuance would not be in the interest of the public health, safety or welfare[.]" N.J.S.A. 2C:58-3(c)(5). Section (c)(5) "is 'intended to relate to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'" In re Osworth, 365 N.J. Super. 72, 79 (App. Div. 2003) (citation omitted).

On an appeal from the denial of a handgun permit or FPIC, the trial court hears the matter de novo, and the police chief has the burden of proof by a preponderance of the evidence. Id. at 77. Hearsay is admissible, but there must be sufficient legally competent evidence to support the court's findings. Weston v. State, 60 N.J. 36, 50-51 (1972). Even if an applicant was previously charged with a crime but not convicted, in a later permit hearing the chief may still present to the court the evidence underlying the charges. "The dismissal of criminal charges does not prevent a court from considering the underlying facts in deciding whether a person is entitled to purchase a firearm or recover one previously taken by the police." Osworth, supra, 365 N.J. Super. at 78 (citing In re Return of Weapons to J.W.D., supra, 149 N.J. at 110).

The court may also consider a non-criminal conviction, such as a disorderly persons conviction for an offense involving physical violence. For example, in Osworth, we observed that a disorderly persons conviction for assault may be grounds to deny a handgun permit under N.J.S.A. 2C:58-3(c)(5). Id. at 79 (citing In re Sbitani, 216 N.J. Super. 75, 78 (App. Div. 1987)).

In this case, the credible testimony of Officer Kuhl established that L.H. committed an assault on a police officer by punching him, and then grabbing his Maglite flashlight and trying to hit him with it. The fact that she was later permitted to plead guilty to downgraded municipal charges did not preclude the trial judge hearing the gun permit appeal from considering the underlying facts concerning this incident. Further, at the time she assaulted Kuhl, L.H. was behaving in an agitated and irrational manner. By her own admission, she was "out of control."

In addition, the trial judge found her explanation of this incident unconvincing. After reading the transcript, we are inclined to agree. Moreover, the judge had the opportunity, which we did not, to observe L.H.'s demeanor and hear her testify. We are aware that live testimony can convey nuances that a cold record cannot. See State v. Locurto, 157 N.J. 463, 474 (1999). We decline to second-guess the trial judge's conclusion that, at the time of the hearing, granting L.H.'s application "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5).7

Addressing L.H.'s next point, the State's brief concedes that L.H. "has not been permanently deprived of any right" because "neither the statutory scheme nor the trial court's ruling prevents her from applying for a FPIC or handgun purchase permit in the future." We agree. We further note that by the time this opinion is issued, almost four and one-half years will have passed since the April 2010 incident. As previously stated, nothing in our opinion would preclude L.H. from reapplying for a handgun permit and a FPIC. In light of that conclusion, her Point II warrants no further discussion. R. 2:11-3(e)(1)(E).

Finally, we find no merit in L.H.'s constitutional argument. As we held in In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009), the Second Amendment does not preclude the enforcement of "statutes that require a license to purchase or possess a firearm." See District of Columbia v. Heller, 554 U.S. 570, 626-27, 128 S. Ct. 2783, 2816-17, 171 L. Ed. 2d 637, 678 (2008). L.H.'s reliance on McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), is misplaced. McDonald holds that the Second Amendment applies to the states, through the operation of the Fourteenth Amendment Due Process Clause. Id. at 750, 130 S. Ct. at 3026, 177 L. Ed. 2d at 903. Thus McDonald extended to the states Heller's holding that the Second Amendment protects the rights of individuals, and not just of militias, to keep and bear arms. Neither Heller nor McDonald precludes states from enforcing gun permit laws, so long as those laws are not so restrictive that they effectively ban private citizens from owning guns. See McDonald, supra, 561 U.S. at 786, 130 S. Ct. at 3047, 177 L. Ed. 2d at 926. Nothing in either case suggests that an applicant's having previously assaulted a police officer would be a constitutionally unacceptable basis for denying a gun permit.8

Affirmed.

1 The order was incorrectly captioned as though this were a criminal prosecution. We have corrected the caption in this opinion.

2 The police also seized one or more additional weapons, although it is not clear whether they belonged to L.H. or her husband.

3 The report is not in either party's appendix.

4 The hearing began on July 5, 2012. It was not completed until June 5, 2013, because L.H. was traveling out of State for extended periods of time and the court accommodated her travel schedule.

5 The couple's living area was located on the second floor of a converted barn.

6 We note that L.H.'s testimony was somewhat rambling and she frequently had to be re-directed to answer the questions asked of her.

7 We reject L.H.'s argument that the judge considered inappropriate factors in reaching his decision. Her additional arguments in support of Point I are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

8 In reaching that conclusion, we do not imply any view as to the merits of a future permit application, should L.H. choose to submit one.