In layman’s terms: A New Jersey appeals court struck down a trial court’s decision to deny an applicant a Firearms Purchaser ID Card and a Permit to Purchase a Handgun on the basis that past dishonesty meant he did not satisfy New Jersey’s subjective “essential character of temperament necessary to be entrusted with a firearm” clause used in the making of such permit issuance decisions. The applicant will be issued his permits, as per the court’s ruling.
Despite the 2022 Bruen Supreme Court ruling that subjective requirements, as a basis for determining whether or not to issue firearms permits, are unconstitutional, New Jersey residents continue to suffer under a state that has largely ignored that decision. On March 18, the Appeals Division of the Superior Court of New Jersey struck a blow against the state’s unconstitutional standard in a decision that has binding precedent on New Jersey courts. Yet it did so without applying Bruen.
The case is called “In the Matter of the Appeal of the Denial of Mikhail Polatov’s Application for a Firearms Purchaser Identification Card and Permit to Purchase a Handgun,” and was decided on an appeal from the Superior Court of New Jersey, Law Division (in Bergen County) by Judges Sumners, Chase, and Augostini.
Pro-Second Amendment decisions tend to be much briefer than their hostile counterparts, and this 19-page decision is no exception.
Mikhail Polatov, a Bergen County resident, appealed a 2024 Law Division order denying his application for a Permit to Purchase a Handgun (PPH) and a Firearms Purchaser Identification Card (FPIC) under New Jersey’s subjective “essential character” clause in N.J.S.A. 2C:58-3(c)(5). The appeals court not only reversed that decision, explaining that the “credibility determination” is not a valid reason to deny Mr. Polatov’s application, but set an important precedent that future courts must adjudicate when addressing this same clause.
This represents a significant victory for many would-be New Jersey firearms and concealed carry applicants, including significant cases we have previously covered regarding retaliatory FPIC revocation and suppression of 2A rights over protected speech.
Background
The significance of Mr. Polatov’s case (which has a lengthy procedural history) is that its genesis was under pre-Bruen statutes, while the appeal process now takes place in a post-Bruen environment, but the court only uses Bruen as a mile marker, not a standard.
The narrative, in brief, is as follows. Mr. Polatov submitted both an FPIC and a PPH application to the Demarest Police Department in July of 2020. A background check revealed a 2001 arrest for driving while impaired (amended to a consumption charge with a fine and no jail time), as well as an arrest in New York, which Polatov did not disclose, nor was he required to disclose. The Demarest police department denied his application, which he then appealed to the Law Division.
In an August 2021 trial hearing in which Mr. Polatov was questioned and gave conflicting testimony about events surrounding the New York arrest, a judge again denied his application, determining “there would be risk and a concern that it would not be in the interest of the public health, safety, and welfare to grant th[e] appeal.”
Mr. Polatov again applied for an FPIC and PPH in 2023 and was denied this time by Harrington Park based upon his 2021 Demarest denial, again referencing the “public health, safety, and welfare” consideration based upon a subjective “essential character o[f] temperament” assessment. Mr. Polatov appealed once again.
The new appeal was heard by the very same trial court as the previous appeal, and they wasted no time bringing up the previous denial and the events surrounding it. At the conclusion of the trial, the court issued an oral decision denying the application yet again and later issued the same in writing. Mr. Polatov appealed yet again.
Court Analysis and Decision
The court’s analysis draws a strong distinction between the pre-Bruen and post-Bruen legal burdens in New Jersey statute (but not relevant to the Bruen case itself), specifically the 2022 amendment of N.J.S.A. 2C:58-3(c)(5) by the Legislature adding the provision for denial “because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm.”
Unfortunately, rather than simply addressing the subjective nature of the prohibition (which would easily be rendered unconstitutional under Bruen), the court takes a different route, deconstructing the clause phrase by phrase for meaning and applicability.
In summary, it finds that:
- Dishonesty is not a disqualifier of “essential character” under individual fitness
- It also does not speak to one’s ability “to be entrusted with a firearm.”
The court does not find fault with the lower court’s finding that Mr. Polatov lied during previous testimony. However, the appeals court states that the lower court “erred in its interpretation of N.J.S.A. 2C:58-3(c)(5) to deny Polatov’s application due to the conflicting testimony he gave…” adding, “The determinative factor under N.J.S.A. 2C:58-3(c)(5) ‘focus[es] on whether the applicant, armed with a firearm, poses a danger to the public.'”
The appeals court summarizes this finding:
Polatov’s contradictory testimony about whether he pled guilty in 2011 to an offense, does not support the court’s finding that he lacks the essential character of temperament necessary to be entrusted with a firearm because he would be a public danger. There is no evidence that Polatov exhibited behavior — criminal conduct, aggressive behavior, threats of violence, emotional instability, alcoholism, substance abuse, or mental health concerns — that establishes he could not be entrusted with a firearm. Likewise, there is no indication in the record that Polatov’s lack of credibility correlated to the absence of the essential character of temperament that would make him more likely than not to be a danger to public health, safety, or welfare if he had a firearm.
The court even adds that “repetitive misconduct” is not a prerequisite to disqualification.
Disappointingly, the court managed to entirely skirt the application of the Bruen doctrine in its analysis and findings, and dismissed Mr. Polatov’s constitutional challenge to the statute by stating that it is “unnecessary to determine his arguments that the statute is unconstitutional,” because the court found his denials were unfaithful to the application of the statute itself.
The decision, nonetheless, stands as a victory for New Jersey gun owners, and Mr. Polatov will be granted his permits.
