The Volokh Conspiracy
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I blogged in April about In the Matter of the Application by Michael McGovern, which offers some interesting (though non-precedential) views on New Jersey gun law. As I noted then, New Jersey requires a license to buy a handgun, and allows sheriffs to deny such licenses if the person was not of "good character and good repute in the community" or "where the issuance would not be in the interest of the public health, safety or welfare." There is, however, an appellate review process.
Michael McGovern was denied a license, for several reasons. First, the Jersey City Police Department requires applicants to fill out extra forms, beyond those required by state law; McGovern refused to fill them out, arguing that state law didn't authorize them.
Second, the trial court reviewing the department's denial took the view that such uncooperativeness showed a lack of "good repute within the community."
Third, the police department discovered that McGovern had a few arrests in Florida 10 years earlier, for petty theft, resisting arrest, and failures to appear in court or pay a fine for possession of an alcoholic beverage while under 21; it did not find any conviction record, but demanded that McGovern give further details on the incidents, and provide court records from the Florida courts. "There are no final dispositions listed for these offenses. You will have to get certified dispositions from the Courts involved as to the outcome of these charges. This department also has a concern over your actions during the incidents." McGovern refused to provide these items.
Fourth, the government argued that McGovern acted wrongly by "surreptitiously record[ing] a conversation" with the police detective who was dealing with the case (though the trial court did not expressly rely on this justification).
The appellate court ruled in McGovern's favor, for reasons I'll mention shortly. But for now, I wanted to blog this photograph, which Mr. McGovern was kind enough to send me:
"I'm off to the range to break in my HK45c," writes Mr. McGovern, and asks me to thank his appellate counsel Louis Nappen of The Nappen Law Firm, as well as Louie (Luigi) DeCecco of Louie G's Outdoors.
In any event, here's what the Appellate Division held back in April, and what led to the final success in November:
1. New Jersey law specifically identifies the forms that handgun license applicants must fill out, and provides that, "There shall be no conditions or requirements added to the form or content of the application, or required by the licensing authority for the issuance of a permit or identification card, other than those that are specifically set forth in this chapter." "Jersey City's municipal forms are contrary to this statutory provision because they require substantially more information than required by [the statute] and by the State Police application forms." Among other things, "One of the Jersey City forms, entitled 'Firearms Applicant Questioner' [sic], inquires as to the applicant's 'Auto Plate Number,' 'Previous Addresses,' 'Previous Employer,' and 'the names and ages of all people who reside in your household.'"
2. "[T]he Law Division may have attributed disqualifying characteristics to McGovern because he sought to vindicate his constitutional and statutory rights against unauthorized requirements and conditions placed upon his application. The court found his 'lack of cooperation' proved that he presented a 'threat to the public health, safety and welfare of the community' and reflected poorly on 'his character.' We find no evidence of such a threat and bad character in McGovern's expression of legal positions and arguments based on his understanding of constitutional and legal rights."
3. "An arrest that did not result in conviction is not one of the [statutorily] listed disqualifications. However, among the statutory disqualifications is 'where the issuance would not be in the interest of the public health, safety or welfare.' … '[T]he 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.' … Even in the absence of evidence that McGovern was convicted of any offenses as a result of his arrests in Florida, the New Jersey statute permits denial of his application if the underlying facts that led to those arrests demonstrate one of the eight listed categories of disqualification or his bad character or repute." McGovern does not bear the burden of proving that he was qualified for a license; "the police chief has the burden of proving an applicant is not qualified to receive a handgun permit." But
While the ultimate burden of proof is on the police chief, the statutory framework and our prior case law do not allow the applicant to sit silently in the face of legitimate and authorized inquiry from the licensing authority pertaining to the contents of his application and the information the police have developed during their investigation. The police must conduct an investigation, including through an examination of criminal arrest and conviction records. As we have stated, the facts pertinent to arrest records are relevant, even where no conviction results. [The detective] appropriately sought information from McGovern about the circumstances of the alleged offenses that led to McGovern's three Florida arrests….
McGovern [thus] did not have a right to decline requests from the Firearms Licensing Unit for information within the scope of the statute.
4. As to the recording, "McGovern did not violate the law by recording a conversation in which he was a participant." (New Jersey, like most but not all states, allows a party to a conversation to record it, even without warning the other parties.) "The police and prosecutor can hardly attribute bad character to one who engages in surreptitious recording of his own conversations since it is a frequent investigative technique the police themselves use under our State laws."
The bottom line: "We conclude that a remand is necessary for reconsideration of McGovern's application with the proper burden of proof placed on Jersey City to prove he is not qualified—in other words, that good cause exists for denial of his application—and without regard to McGovern's lack of cooperation as to his application except with respect to the Florida arrests." Presumably at that point McGovern would have the opportunity to actually fill in the information about the arrests. The court also followed past New Jersey case law rejecting the argument that "good character and good repute," and "the interest of the public health, safety or welfare" were unconstitutionally vague.