IN THE MATTER OF THE APPLICATION OF PEJMAN ROHANI FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND PERMITS TO PURCHASE A HANDGUN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

APPLICATION OF PEJMAN

ROHANI FOR A FIREARMS

PURCHASER IDENTIFICATION

CARD AND PERMITS TO

PURCHASE A HANDGUN.1

___________________________________

January 2, 2015

Submitted December 2, 2014 Argued

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Appeal No. 2013-004.

Evan F. Nappen, Attorney at Law, P.C., attorneys for appellant Pejman Rohani (Louis P. Nappen, 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

Pejman Rohani appeals from the trial court's July 10, 2013, order denying his application for a firearms purchaser identification card (FPIC), and two permits to purchase a handgun. The court held that the State had demonstrated that issuance of the FPIC and handgun permits "would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5). The court's order followed a denial by a local police detective on behalf of the police chief. As the police chief and the trial court deviated from procedures dictated in Weston v. State, 60 N.J. 36 (1972), we reverse and remand.

In August 2012, Rohani submitted an application to the Neptune Township Police Department for a firearms purchaser identification card, and two handgun permits. At the time, Rohani was a trauma physician at Jersey Shore University Medical Center (JSUMC). On his application, Rohani disclosed that he was convicted in California of simple assault in 2000 and assault in 2004.2

The investigation of Rohani's application was delegated to Neptune Police Detective Michael Dugan. During the course of Dugan's investigation, Rohani explained that the first incident in California involved an altercation between Rohani and a friend, and security personnel at a bar. Rohani was a student at the time. The second involved a confrontation between Rohani and someone who threw an object at his car. Rohani stated that he was required to perform community service as a result of each incident.

Dugan also received input from the former chair of the surgery department at JSUMC, Jerome Vernick. Although Vernick praised Rohani's medical performance, Vernick suggested that Rohani was short-tempered. Vernick recounted two incidents, neither of which he personally witnessed. In one, Rohani was verbally abusive toward a nurse. Vernick disclosed the second incident after Rohani's application was already denied. In that second incident, a dying patient's son threatened to punch Rohani if he continued to care for his father. Rohani allegedly responded with a threat of his own. In neither case was there physical assault. The incident involving the family member was followed by a request that Rohani receive counseling regarding appropriate physician-patient communications.

By an undated letter sent in December 2012, Dugan advised Rohani that his application was denied. The letter, written on the letterhead of then-Chief of Police Robert H. Adams,3 stated

The Chief of Police has denied your application for a Firearms Identification Card and two Permits to Purchase. The denial was based upon the following criteria

Criminal Arrest: A Criminal History check disclosed two arrests for assault. While conducting a background check, your employer advised us of disciplinary action taken because of an incident at work which turned into a verbal altercation.

There is no evidence that the police chief personally ever met with Rohani to discuss his application before Dugan wrote the denial letter on his behalf.

Rohani filed an appeal, and the Law Division conducted a testimonial hearing in July 2013. The witnesses were Rohani, Dugan, and Vernick. Rohani reviewed his medical training, licensing, and employment experience. He discussed the two California incidents, portraying his actions as defensive in nature. With respect to the verbal altercations at JSUMC, he stated that he was required to attend counseling after the incident with the family member, but retained his full medical privileges. He acknowledged that he could have handled the situation better, by calling security, or stepping away, rather than responding directly. Regarding the incident with the nurse, he asserted that he raised his voice in response to an insubordinate nurse who rudely yelled at him.

Dugan testified that he typically was assigned the task of conducting background investigations in response to firearms permit applications. However, the police chief made the final decisions. He confirmed that Rohani had no history of domestic violence or mental health treatment that would disqualify him from obtaining the requested permits. He also received references from two longtime friends who attested to Rohani's suitability. Dugan also received a supportive letter from Rohani's direct supervisor, the head of the trauma division at the medical center. Dugan testified that he never spoke with Rohani's direct supervisor. However, Dugan recounted the negative feedback he received from Vernick.

Vernick testified as well. He conceded that he did not witness the two events involving the nurse and the family member. However, he testified that he had personally observed Rohani exhibit threatening body language. A veteran of the Army and the Vietnam War, Vernick expressed his concerns about the risks of firearms. He stated, "[M]y philosophy is to bend over backwards to keep them away from people."

In the court's oral opinion denying Rohani's application, the court concluded that Rohani's temperament was incompatible with firearm possession. The court relied on its finding that Rohani verbally abused a nurse, and responded in kind to a threatening family member. The judge found that Rohani had declined to seek counseling. The court held that the State met its burden of showing by preponderance of evidence good cause to deny the applications.

On appeal, Rohani presents nine points for our consideration

Point 1

The Court Below Erred In Finding That The Second Amendment Does Not Apply To New Jersey Firearm Purchaser Permit Law.

Point 2

The Court Below Erred By Requiring The Applicant To Testify Before The State Presented Its Case Even Though The Burden Rests Solely Upon The State.

Point 3

Appellant Suffers From No Per Se Statutory Disqualifier To Firearm Possession Under N.J.S.A.2C:58-3(c).

Point 4

The Court Below Erred By Basing Its N.J.S.A.2C:58-3(c)(5) Denial Upon Hearsay And Speculation, And The Facts On The Record Do Not Rise To The Level Of A Reason To Deny This Presumptively-Issued Permit And Constitutional Right.

Point 5

The Court Below Erred By Not Taking Into Its Consideration That Dr. Rohani Is Already Entrusted By Three States With The Public's Health, Safety and Welfare.

Point 6

The Court Below Erred By Ignoring The Present Condition of the Applicant.

Point 7

In Conjunction With The Point 6, The Court Below Erred By Providing No Form Of Redress.

Point 8

The Permit Was Wrongfully Denied Ab Initio.

Point 9

Appellant Should Not Be Denied His Fundamental, Individual, Constitutional Right To Keep Arms For A Reason That Is Not "Longstanding" And Does Not Rise Above Rational Basis Scrutiny.

A. N.J.S.A. 2C:58-3(c)(5) is unconstitutionally vague.

We focus on Rohani's argument that he was denied procedural rights, in particular, by the State's failure to call the police chief as a witness at the hearing. We agree that this was a significant error. Moreover, the chief apparently failed to afford Rohani an opportunity to confer before rendering a decision.

The police chief plays a critical role in the consideration of permit applications, as recognized by our Supreme Court in Weston, supra, 60 N.J. at 43-45. The initial decision is made by the police chief. N.J.S.A. 2C:58-3(d). Although a court considers a permit application de novo when an applicant appeals a denial, the court is required to "give appropriate consideration to the Chief's investigative experience and to any expertise he [or she] appears to have developed in administering the statute." Weston, supra, 60 N.J. at 46. See also In re Application of Boyadjian, 362 N.J. Super. 463, 476 (App. Div.) (stating the court "must[] nevertheless act with appropriate regard for the local interest factor to the extent legitimately reflected in the police chief's denial"), certif. denied, 178 N.J. 250 (2003).

Recognizing that the police chief's decision is largely ex parte, and lacks administrative formality, the Court requires that an applicant have the opportunity to present his or her case directly to the decision-maker.

[S]ince the statute directs issuance of the purchaser identification card unless good cause to the contrary appears, in our judgment an opportunity should be given to the applicant 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.

[Weston, supra, 60 N.J. at 43-44.]

If the permit is denied, the applicant is entitled to "at least general disclosure of the basis for the denial." Id. at 44. The purpose of the pre-decision conference "is not only to inform the applicant of the reasons for the police chief's denial, but also to afford the applicant an opportunity to convince the chief, by submission of additional information and informal discussion, to change his [or her] decision, thus obviating the need for judicial review." In re Dubov, 410 N.J. Super. 190, 200-01 n.2 (App. Div. 2009).

At the hearing before the Law Division, the police chief should ordinarily testify to explain his or her decision and what influenced it. The Court dictated that the hearing should begin with an applicant's testimony covering: his or her application; followed by the fact of the rejection; and the chief's reasons, if any, that were provided to the applicant. Weston, supra, 60 N.J. at 46.

Thereafter, the Chief should proceed with the evidence on which his [or her] denial was predicated. Ordinarily, this would include presentation of his [or her] own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional persons who furnished information which influenced the action taken by the Chief, and any admissible documentary evidence which played a part in the adverse decision. Upon completion of the Chief's proof, the applicant may offer relevant rebuttal testimony.

[Ibid.]

See also Dubov, supra, 410 N.J. Super. at 201 (reiterating the requirement that the police chief testify).

The Court left some room for a chief not to testify, by stating that it was "ordinarily" required. However, the clear implication is that the chief's non-appearance should be the exception, which would need to be supported by good cause shown.

The police chief's testimony serves multiple purposes. Absent the chief's testimony, it would be difficult for the court to appropriately consider the chief's expertise, and subject the chief's decision to appropriate scrutiny. See Weston, supra, 60 N.J. at 46. The applicant would also be deprived of the opportunity to challenge the grounds for the chief's decision. See id. at 44.

We find no authority for the State's argument that the chief can delegate the duty to testify to a subordinate. The State misplaces reliance on the statement in Weston that the chief can delegate the investigation of the application to others. Weston, supra, 60 N.J. at 43 (stating "the chief of police proceeds informally, acting either personally or through members of his [or her] department in gathering the information upon which his [or her] decision is then based"). However, the Court did not endorse delegation of the decision-making authority, which is assigned by statute to the chief. N.J.S.A. 2C:58-3(d). Consistent with that decision-making responsibility, testimony in support of the decision should be offered by the chief.

We recognize that in Dubov, we declined to remand to the chief who also failed to engage in a pre-decision conference. Dubov, supra, 410 N.J. Super. at 200-01 n.2. However, the appellant was informed of the reasons for denial through his counsel's discussions with the chief, and we concluded that a remand would be futile, as we doubted there was any "likelihood of informal resolution." We do not reach the same conclusion here. A new chief of police now serves in the township. Moreover, significant time will have passed between the original decision and the remand, which may warrant Rohani or the chief an opportunity to supplement the record.

In sum, we reverse and remand the decision denying the FPIC and handgun permit applications. On remand, the parties may supplement the record. The police chief may update his investigation. Rohani shall be afforded an opportunity to confer with the chief. If the chief confirms the prior denial, and Rohani seeks judicial review, the chief shall be required to testify, absent good cause shown justifying his non-appearance. Although the parties may supplement the record with new evidence, the court may also rely on the evidence and testimony presented at the initial hearing.

Given our disposition, we do not address the remaining issues raised on appeal.

Reversed and remanded.

1 The caption of this case at the trial level read "State of New Jersey, respondent vs. Pejman Rohani, petitioner." We have sua sponte amended the caption to reflect the nature of the proceeding.

2 He later asserted that the 2000 incident involved a conviction for simple battery; and the 2004 incident occurred in 2003 and resulted in a nolo contendere plea. The police were unable to obtain a public record of the final disposition of the charges from California.

3 We take judicial notice of the fact that James Hunt is the current chief of the Neptune Township Police Department. See Police Department, Neptune Twp. - NJ, http://www. neptunetownship.org/departments/police-department (last visited Dec. 19, 2004).