IN THE MATTER OF APPLICATION OF M.M FOR FIREARM'S IDENTIFICATION CARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5086-08T45086-08T4

IN THE MATTER OF APPLICATION OF M.M.

FOR FIREARM'S IDENTIFICATION CARD

______________________________________

 

Submitted March 2, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. A-16-08-2121.

M.M., appellant pro se.

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant M.M. appeals from orders of the Law Division denying his application for a firearms purchaser identification card (FPIC) and subsequent motion for reconsideration. We affirm.

These are the pertinent facts. Appellant is a former New Jersey State Police Officer. On May 10, 2000, his wife, R.M., obtained a temporary restraining order (TRO) against him pursuant to the Prevention of Domestic Violence Act of 1991 (Act), N.J.S.A. 2C:25-17 to -35. When served with the TRO, his three firearms were seized. Because appellant was a law enforcement officer, his service weapon was retained by the State Police pending the outcome of an internal investigation into his fitness to possess his duty weapon, while his personal firearms were released to the Warren County Prosecutor's Office, pursuant to the Act's provision, N.J.S.A. 2C:25-21(d)(2).

On May 15, 2000, the County Prosecutor filed a petition seeking forfeiture of all seized weapons and appellant's FPIC. The hearing was stayed pending the outcome of the State Police's internal investigation. During the course of this investigation, appellant's wife dismissed the TRO. She claimed to have done so because appellant "promised to leave me alone and just go away . . . ." On November 16, 2000, the Attorney General, after reviewing the results of the State Police's internal investigation, authorized the return of appellant's service weapon without restriction.

Sometime thereafter, another domestic violence incident involving appellant was reported to the State Police, who then disclosed the matter to the Attorney General. Following a series of interim decisions as to appellant's fitness to carry his service weapon, on April 30, 2002, the Attorney General's Office authorized appellant to carry his service weapon both on and off duty without restriction. Following this decision, the County Prosecutor moved in the Law Division for a weapons forfeiture hearing to determine whether appellant's personal weapons should be returned.

The forfeiture hearing was held on August 1, 2002. R.M., who by then was divorced from appellant, objected to the return of appellant's personal weapons. She testified that she remained "very scared" of her former husband. Although there had been no further violent incidents between them since May 9, 2000, appellant continued to be verbally abusive. R.M. described a recent incident where appellant came into her work place "yelling and screaming" with "his hand on his [service] weapon[.]" R.M. also recounted a lengthy history of domestic violence during their marriage, including an incident where appellant allegedly punched her in the eye; another where he "whacked" her "right across the leg"; and yet another where she was viciously beaten by him after he returned home from a carnival intoxicated, resulting in bruises across much of her body. As to the incident underlying the May 10, 2000 TRO, R.M. testified that on May 1, 2000, as she was leaving for work, appellant came running out of the house, grabbed her by the arm, and became verbally abusive, calling her "a c**t, a whore" and a "f***ing bitch." During the altercation, appellant also stated that he was "not going to take it anymore." R.M. had marks up and down the arm where the appellant had grabbed her.

Appellant testified on his own behalf, denying R.M.'s allegations of domestic violence. He did acknowledge, however, that on one occasion, he had given his ex-wife a black eye, but explained that it was "purely accidental[,]" as he mistakenly elbowed R.M. in the face after she jumped on his back. Regarding the incident underlying the TRO, appellant explained, as background, that his wife had been taking money from him, was threatening him with a "messy divorce," and was planning on making a false report of domestic abuse. As to the incident itself, appellant admitted that he had "reached for his [ex-wife's] elbow," but that it was not in "any forceful manner at all." According to appellant, he voluntarily turned in his personal weapons to the State Police because he was afraid of what his wife would do with them if he left them in the marital home.

At the close of evidence, the judge, crediting R.M.'s account, found that appellant posed a danger to his ex-wife, even though she had previously sought dismissal of the TRO. Citing In re Return of Weapons to J.W.D., 149 N.J. 108 (1997), the court, by order of August 19, 2002, directed that appellant's personal weapons and FPIC be forfeited.

Appellant's motion for reconsideration was denied without prejudice for failure to properly serve the State. Two years later, however, on June 2, 2004, appellant moved under Rule 4:50-1(e) to vacate the August 19, 2002 forfeiture order. Following argument, the court denied the motion by order of June 29, 2004. Appellant then moved for reconsideration, claiming changed circumstances including: 1) his divorce from R.M.; 2) his long-term relationship with a new girlfriend; 3) the absence of any recent allegations of abuse; 4) the lack of evidence of any physical threat to R.M.; 5) their "mutually tolerant" contact post-divorce concerning their children; and 6) the full use of his service weapon, without incident, since the weapons forfeiture hearing. Appellant further argued that denying him the ability to obtain and possess personal weapons would cause extreme and unanticipated hardships as well as impact his employment and constitutional rights. The State opposed the application, arguing that relief was not warranted under Rule 4:50-1, and citing N.J.S.A. 2C:39-7 and N.J.S.A. 2C:58-3, which prohibit persons whose weapons have been seized and not returned under the Act from obtaining firearms licenses and possessing personal firearms, but still permit such persons to possess duty weapons for employment with a police force, the National Guard, or military service.

Following a hearing, the judge denied the motion to vacate the forfeiture order. The court reasoned:

what the defendant must now show is that not only have circumstances changed such that he is no longer a danger to his former spouse, but also that he will suffer extreme and unexpected hardship if he is not able to possess personal weapons.

The court does not need to address whether or not the alleged facts asserted in the defendant's Brief are a change in circumstance because the defendant did not certify to such facts. Secondly, the defendant did not show how he will suffer extreme and unexpected hardship if he is not permitted to possess personal

firearms. . . .

The defendant also argues that any restriction of his constitutional rights is itself an extreme and unexpected hardship. The defendant does not, however, have a personal, individual constitutional right to bear arms. . . . [T]he Second Amendment does not guarantee an individual's right to bear arms. . . .

[(Emphasis added).]

We affirmed the Law Division's order, and the Supreme Court denied certification.

On January 31, 2008, appellant applied to the Washington Borough Police Department for a new FPIC. His application was denied on May 15, 2008, based on the fact that his weapons had been previously seized pursuant to a complaint of domestic violence and had not yet been returned under N.J.S.A. 2C:58-3c(8). See N.J.S.A. 2C:25-21d(3). Appellant appealed that denial, and the Law Division denied the appeal on the papers, without a hearing, on August 7, 2008. Appellant then moved for reconsideration, for change of venue, and for recusal of the Assistant Prosecutor. The latter two motions were denied. A hearing was held on the reconsideration motion after the parties submitted supplemental briefing on the applicability of M.S. v. Millburn Police Dep't, 197 N.J. 236 (2008) and District of Columbia v. Heller, ____ U.S. ____, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), to the case at bar. Following the hearing on April 30, 2009, the judge denied appellant's reconsideration motion in a written opinion of May 15, 2009, wherein the court reasoned:

Here, a hearing was held [on August 1, 2002], the [appellant] was present, the State presented its evidence, and the [appellant] was able to cross-examine the witness testifying against him. . . .

. . . .

. . . The [appellant] was afforded another hearing before the court in 2004. When [the judge] issued her decision on February 10, 2005, she based her decision to deny the plaintiff's motion to vacate on two separate factors: 1) the defendant had failed to certify to the facts in support of his claim of changed circumstances; and, 2) the defendant was unable to establish that he would suffer extreme and unexpected hardship because he did not have a personal right to bear arms under the Second Amendment of the United States

Constitution. . . .

. . . .

. . . Here, the [appellant] has not been convicted of any crime. [The judge's] decision to deny the [appellant's] motion to vacate the order forfeiting his personal weapons turned, in part, upon the court's conclusion that his right to bear arms was not a personal right. At the present moment, this court is not in a position to change its decision denying the [appellant's] appeal of the Washington Borough Township's denial of his application for a FPIC. That denial was based upon the laws of the State of New Jersey and it is this court's duty to apply the laws of this State. As the law stands, in its current state of flux, this court cannot find that Heller applies to this [appellant].

This appeal follows, in which appellant argues: (1) his constitutional right to bear arms bars entry of the forfeiture order under Heller; (2) he is not disqualified from possessing a FPIC by virtue of N.J.S.A. 2C:25-21d(3) or N.J.S.A. 2C:58-3c(8) because he is not subject to a domestic violence restraining order; and (3) the application of N.J.S.A. 2C:58-3c(8), which was not in effect at the time of the 2002 forfeiture judgment, violates the ex post facto clauses of the United States and New Jersey Constitutions. U.S. Const. art. I, 10, cl. 1; N.J. Const. art. IV, 7, 3. We find none of these contentions persuasive and therefore affirm.

(I)

In Heller, supra, the issue was whether the Second Amendment protects only the right to possess and carry a firearm in connection with military service or also protects an individual's right to possess a firearm for other purposes such as self-defense and hunting. Id. at ___, 128 S. Ct. at 2789, 171 L. Ed. 2d at 648. The Court held that the Second Amendment protects "an individual right to keep and bear" firearms, id. at ___, 128 S. Ct. at 2799, 171 L. Ed. 2d at 659, and that this holding required invalidation of District of Columbia statutes that totally prohibited handgun possession in the home and required "any lawful firearm in the home [to] be disassembled or bound by a trigger lock at all times, [thus] rendering it inoperable." Id. at ___, 128 S. Ct. at 2817-22, 171 L. Ed. 2d at 679-84.

However, the Court expressly indicated that its holding did not require invalidation of statutes that require a license to purchase or possess a firearm. Id. at ___, ___, 128 S. Ct. at 2816-17, 2819, 171 L. Ed. 2d at 678, 680-81. In fact, the Court noted that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. at ___, 128 S. Ct. at 2816, 171 L. Ed. 2d at 678. Thus, nothing in the Heller opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at ___, 128 S. Ct. at 2816-17, 171 L. Ed. 2d at 678. Based on this reasoning, we recently found that Heller had "no impact upon the constitutionality of N.J.S.A. 2C:58-3(c)(5)." In re Dubov, 410 N.J. Super. 190, 197 (App. Div. 2009).

In Crespo v. Crespo, the defendant argued that the Act effects a deprivation of an individual's Second Amendment right to bear arms because it allows for the seizure of a defendant's firearms upon a finding of domestic violence. 408 N.J. Super. 25, 41 (App. Div. 2009), aff'd, ___ N.J. ___ (2010). We found nothing in the Supreme Court's decision in Heller that suggests a limitation "on a state's right to bar persons who have been found to have committed acts of domestic violence from possessing firearms." Id. at 43. Even assuming the Second Amendment applies to the states, we determined that, "[a]bsent a clear and binding announcement from the Supreme Court of the United States to the contrary, . . . the Act's prohibition on the possession of firearms by a person found to have committed domestic violence is a valid, appropriate[,] and sensible limitation on an individual's Second Amendment rights." Id. at 43.

Our decision was affirmed by the Supreme Court. Crespo, supra, ___ N.J. at ___. In upholding the Act's constitutionality, the Court stated:

To the extent defendant raised whether the Second Amendment's right to bear arms, U.S. Const. amend. II, applies to the states, id. at 41-43, we note that the issue of "[w]hether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses" presently is pending before the Supreme Court of the United States. McDonald v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted, ___ U.S. ___, 130 S. Ct. 48, 174 L. Ed. 2d 632 (2009). We need not reach that point because the right to possess firearms clearly may be subject to reasonable limitations. See District of Columbia v. Heller, ___ U.S. ___, ___, 128 S. Ct. 2783, 2816-17, 171 L. Ed. 2d 637, 678 (2008) (holding that "[l]ike most rights, the right secured by the Second Amendment is not unlimited" and endorsing "longstanding prohibitions on the possession of firearms").

[Id. at 8-9.]

Accordingly, we find no constitutional violation per se in either the seizure of appellant's weapons or the denial of a FPIC.

(II)

Relying on M.S. v. Millburn Police Dep't, 197 N.J. 236 (2008), appellant next contends that he is not disqualified from possessing a FPIC by virtue of N.J.S.A. 2C:25-21d(3) or N.J.S.A. 2C:58:3c(8) because he is not subject to a domestic violence restraining order. We disagree.

N.J.S.A. 2C:58-3c provides: "No handgun purchase permit or firearms purchaser identification card shall be issued . . . (8) [t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991,' and whose firearm has not been returned." To be sure, an applicant is not permanently barred from obtaining a FPIC or possessing a firearm simply because his firearms had been seized under the Act and not returned. M.S., supra, 197 N.J. at 246. Rather, it is "[o]nly when a person's firearm is seized pursuant to the [Act] and 'has not been returned' for a reason articulated in the Domestic Violence Forfeiture Statute [(DVFS)], N.J.S.A. 2C:25-21(d)(3)," that the person is "permanently barred from obtaining a firearms card." Id. at 251. "Therefore, under N.J.S.A. 2C:58-3(c)(8), the "reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3)

. . . ." Ibid.

Under the DVFS, a prosecutor may object to the return of weapons seized under the Act "on the grounds that . . . the owner poses a threat to the public in general or a person or persons in particular." N.J.S.A. 2C:25-21d(3). Weapons are only returnable if the Court finds both that "the owner is not subject to any of the disabilities set forth in N.J.S.A. 2C:58-3c and . . . the court determines that the domestic violence situation no longer exists." Ibid. Thus, at a hearing under the DVFS,

if the [prosecutor] could show that plaintiff fell within any of the disability categories of N.J.S.A. 2C:58-3(c) or that he was "unfit" or that he "pose[d] a threat to the public," then a reason for forfeiture of plaintiff's weapons and the revocation of his card would be established. If the [prosecutor] did not meet any of those standards for the forfeiture of a firearm or revocation of a firearms card, then at the conclusion of the hearing, pursuant to N.J.S.A. 2C:25-21(d)(3),

a court would be required to

"order the return of the firearms, weapons, and any authorization

papers relating to the seized

weapons to the owner if the complaint has been dismissed at the request

of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation

no longer exists."

[M.S., supra, 197 N.J. at 248 (quoting L. 1991, c. 261, 5) (footnote omitted and emphasis partially added).]

Accordingly, following a hearing, forfeiture of weapons and a FPIC may be ordered if a court finds that the domestic violence situation continues to persist. Id. at 249, 251 (citing N.J.S.A. 2C:25-21d(3)).

A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)'s bar to the issuance of a firearms card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff's firearms "not been returned" because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was "probable cause to indict," or because the "domestic violence situation" continued after the issuance of the mutual restraining orders, see N.J.S.A. 2C:25-21(d)(3), then the conditions of N.J.S.A. 2C:58-3(c)(8) would have been met.

[Id. at 251 (emphasis added).]

In M.S., the appellant's firearms were seized in 1997 after he was issued a domestic violence complaint and restraining order. Id. at 238. Thereafter, the criminal charges were dismissed, and the restraining order was dissolved. Id. at 249. The applicant then entered into a consent judgment permitting him to either sell the firearms or surrender title to the weapons. Id. at 238. The consent judgment, however, contained no stipulation by the applicant that his FPIC was subject to forfeiture, and no hearing was held to determine whether plaintiff committed an act that disqualified him from obtaining a firearm. Id. at 239. In 2005, the police refused to return plaintiff's firearms card, on the ground that his "previously seized weapons were not 'returned' and therefore he was permanently barred from possessing a firearm under N.J.S.A. 2C:58-3(c)(8) . . . ." Ibid. The Appellate Division agreed and the Supreme Court reversed, remanding the matter to the Law Division to conduct a hearing to determine whether the Prosecutor's Office would have succeeded at the N.J.S.A. 2C:25-21(d)(3) forfeiture proceeding in proving that the applicant had committed an act warranting forfeiture of his firearms. Id. at 252.

Here, in marked contrast, a reason for forfeiture and denial of the FPIC, as articulated in the DVFS, had been established at a hearing, wherein it was determined that appellant was a continuing threat to R.M., and that, as a result, the domestic violence situation persisted. There was substantial credible evidence supporting these findings, which, in turn, established sufficient grounds for the forfeiture of appellant's personal firearms and the denial of a FPIC, even though there was no final restraining order in effect. See J.W.D., supra, 149 N.J. at 116-18; State v. Frezysinger, 311 N.J. Super. 509, 516 (App. Div. 1998).

(III)

Lastly, appellant argues that because the restraining order was issued prior to the 2004 addition of N.J.S.A. 2C:58-3c, he should not be barred from obtaining a FPIC. We disagree.

The prohibition against ex post facto laws applies only to penal or criminal statutes, not to regulatory provisions. United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742, 749 (1980); State v. Muhammad, 145 N.J. 23, 56 (1996); Doe v. Poritz, 142 N.J. 1, 46 (1995). In our opinion in M.S. v. Millburn Police Dep't, we concluded that the provision in issue, N.J.S.A. 2C:58-3c(8), 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).

[ 395 N.J. Super. 638, 642-43 (App. Div. 2007), rev'd on other grounds, 197 N.J. 236 (2008).]

The Supreme Court agreed with this analysis:

Although we disagree with the Appellate Division's literal interpretation of the language of N.J.S.A. 2C:58-3(c)(8), we do agree that N.J.S.A. 2C:58-3(c)(8), as a regulatory provision, is the law governing this case. See In re Preis, 118 N.J. 564, 568 (1990) ("We have repeatedly referred to New Jersey's gun-control laws as a 'careful grid' of regulatory provisions." (citation omitted)). Accordingly, all persons seeking the issuance of a firearms permit must be in compliance with that statute as of the date of its enactment, January 14, 2004.

[M.S., supra, 197 N.J. at 252 n.14.]

Therefore, although the TRO against appellant was issued prior to the January 2004 addition of N.J.S.A. 2C:58-3c(8), appellant is still barred from obtaining an FPIC, as the ex post facto doctrine does not apply to this regulatory provision.

(IV)

 
We find no merit to appellant's remaining arguments. R. 2:11-3(e)(1)(E).

Affirmed.

No handgun purchase permit or firearms purchaser identification card shall be issued:

. . . .

(5) To 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).]

See also Maloney v. Cuomo, 554 F.3d 56, 58-59 (2d Cir. 2009).

(continued)

(continued)

17

A-5086-08T4

 

April 9, 2010