IN THE MATTER OF THE APPEAL OF THE DENIAL OF DOUGLAS F. CIOLEK'S APPLICATION FOR A FIREARMS PURCHASER

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                            APPROVAL OF THE APPELLATE DIVISION
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                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-3510-17T2

IN THE MATTER OF THE
APPEAL OF THE DENIAL OF
DOUGLAS F. CIOLEK'S
APPLICATION FOR A FIREARMS
PURCHASER.
_______________________________

                 Submitted January 16, 2019 – Decided February 1, 2019

                 Before Judges Fuentes and Vernoia.

                 On appeal from Superior Court of New Jersey, Law
                 Division, Morris County, Docket No. L-0017-22.

                 Douglas F. Ciolek, appellant pro se.

                 Frederic M. Knapp, Morris County Prosecutor, attorney
                 for respondent State of New Jersey (Paula C. Jordao,
                 Assistant Prosecutor, on the brief).

PER CURIAM

       Appellant Douglas F. Ciolek appeals from a March 14, 2018 Law Division

order affirming the Township of Denville Police Department's rejection of his

application for a permit to carry a handgun pursuant to  N.J.S.A. 2C:58-4(c) and

denying his summary judgment motion for an order declaring  N.J.S.A. 2C:58- -
4(c) and (d) and N.J.A.C. 13:54-2.4(d) unconstitutional. On appeal, Ciolek

argues that the "justifiable need" requirement for a permit to carry a handgun

violates the Second Amendment of the United States Constitution and Article I,

paragraph 1, of the New Jersey Constitution. Finding no merit to Ciolek's

contentions, we affirm.

      To obtain a New Jersey permit to carry a firearm, an applicant must

"demonstrate[] that he [or she] is not subject to any of the disabilities set forth

in [ N.J.S.A.] 2C:58-3(c), that he [or she] is thoroughly familiar with the safe

handling and use of handguns, and that he [or she] has a justifiable need to carry

a handgun."  N.J.S.A. 2C:58-4(c); see also  N.J.S.A. 2C:58-4(d). In November

2017, the Denville Police Chief denied Ciolek's application for a permit to carry

a handgun because Ciolek did "not demonstrate a justifiable need to carry a

firearm in the State of New Jersey." Ciolek appealed the denial to the Law

Division and filed a summary judgment motion requesting an order declaring

that the statutory justifiable need requirement and regulation 1 requiring evidence

of justifiable need violate the United States and New Jersey constitutions.


1
    In pertinent part, N.J.A.C. 13:54-2.4(d) requires that a private citizen's
application for a permit to carry a handgun include a "a written certification of
justifiable need to carry a handgun . . . detail[ing] the urgent necessity for self-
protection, as evidenced by specific threats or previous attacks, which


                                                                            A-3510-17T2
                                         2
      Following argument, the Law Division rendered a detailed oral opinion

affirming the denial of Ciolek's carry permit application and denying his

summary judgment motion. The court entered an order and this appeal followed.

      On appeal, Ciolek presents the following arguments for our consideration:

            POINT I

            THE COURT ERRED BY FINDING THAT THE
            JUSTIFIABLE NEED PROVISIONS OF N.J.S.A
            2C:58-4(c) & (d) and N.J.A.C. 13:54-2.4(d) DO NOT
            VIOLATE THE SECOND AMENDMENT OF THE
            UNITED STATES CONSTITUTION[.]

            A. THE SECOND AMENDMENT IS AN
            IN[DI]VIDUAL RIGHT THAT APPLIES TO NEW
            JERSEY LAWS[.]

            B. THE SECOND AMENDMENT RIGHT TO KEEP
            AND BEAR ARMS APPLIES IN NON-SENSITIVE
            PUBLIC AREAS WITHIN NEW JERSEY[.]

            C. ASSUMING A PROPER STANDARD OF
            REVIEW IS EVEN NECESSARY,  N.J.S.A. 2C:58-
            4(c) & (d) and N.J.A.C. 13:54-2.4(d) VIOLATE THE
            SECOND AMENDMENT OF THE UNITED STATES
            CONSTITUTION[.]

            i. IF NECESSARY, THE STANDARD OF REVIEW
            SHOULD BE DERIVED FROM THE EXPRESS
            LANGUAGE OF THE SECOND AMENDMENT[.]




demonstrate a special danger to the applicant's life that cannot be avoided by
means other than by issuance of a permit to carry a handgun."
                                                                       A-3510-17T2
                                      3
ii. IF THE COURT REJECTS SUB-POINT i, THEN
ORDINARY STRICT SCRUTINY SHOULD APPLY,
NOT INTERMEDIATE SCRUTINY[.]

a.  UNITED   STATES   SUPREME  COURT
PRECEDENT AND OTHER FEDERAL CASE LAW
REQUIRE STRICT SCRUTINY[.]

b. NEW JERSEY SUPREME COURT CASE LAW
REQUIRES A STRICT SCRUTINY ANALYSIS[.]

c. THE PROSECUTOR'S RELIANCE ON THE NEW
JERSEY CASES OF WHEELER, PANTANO,
BURTON, CRESPO AND SICCARDI AND THEIR
PROGENY IS WITHOUT MERIT AS THESE CASES
ARE EITHER ERRONEOUSLY DECIDED OR
IRRELEVANT[.]

d. INTERMED[IATE] SCRUTINY "BALANCING"
HAS ALREADY BEEN REJECTED BY HELLER
AND MCDONALD[.]

iii. EVEN UNDER INTERMEDIATE SCRUTINY,
NEW JERSEY'S JUSTIFIABLE NEED PROVISIONS
DO NOT PASS CONSTITUTIONAL MUSTER.

POINT II

THE COURT ERRED BY FINDING THAT THE
JUSTIFIABLE NEED PROVISIONS OF  N.J.S.A.
2C:58-4(c) & (d) and N.J.A.C. 13:54-2.4(d) DO NOT
VIOLATE ARTICLE I, PARAGRAPH 1 OF THE
NEW JERSEY CONSTITUTION[.]

A. THE RIGHT TO KEEP AND BEAR ARMS IS
INHERENT IN AND PART OF THE NATURAL
RIGHT TO SELF-DEFENSE PURSUANT TO


                                                    A-3510-17T2
                       4
            ARTICLE  1 PARAGRAPH 1 OF THE NEW JERSEY
            CONSTITUTION.

            B. ASSUMING A PROPER STANDARD OF
            REVIEW IS EVEN NECESSARY,  N.J.S.A. 2C:58-
            4(c) & (d) and N.J.A.C. 13:54-2.4(d) VIOLATE
            ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY
            CONSTITUTION[.]

            i. IF A STANDARD OF REVIEW IS EVEN
            REQUIRED,  STRICT SCRUTINY  IS  THE
            NECESSARY STANDARD OF REVIEW IN THIS
            MATTER.

            ii. EVEN UNDER INTERMEDIATE SCRUTINY,
            NEW JERSEY'S JUSTIFIABLE NEED PROVISIONS
            DO NOT PASS CONSTITUTIONAL MUSTER.

      Ciolek does not dispute that he failed to make any showing of justifiable

need as required by  N.J.S.A. 2C:58-4(c) and (d) and N.J.A.C. 13:54-2.4(d). His

arguments are limited to a challenge to the constitutionality of the "justifiable

need" requirements of the statute and regulation.

      Ciolek's arguments are without sufficient merit to warrant discussion in a

written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons

in the Law Division judge's thorough decision. We add only that the justifiable

need requirement in  N.J.S.A. 2C:58-4(c) and (d) has been found constitutional

in Drake v. Filko,  724 F.3d 426 (3d Cir. 2013), cert. denied sub nom. Drake v.

Jerejian,  572 U.S. 1100 (2014), and in our decision in In re Wheeler, 433 N.J.


                                                                         A-3510-17T2
                                        5 Super. 560 (App. Div. 2013). We find no basis in the record to depart from that

well-reasoned precedent.

      Affirmed.




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