A New Jersey superior court has again used the subjective “public health, safety and welfare” clause to deny Second Amendment rights to an individual, going so far as to revoke his previously issued Firearms Purchaser Identification Card (FPIC), in what appears to be a retaliatory measure.
On January 22, the Superior Court of New Jersey Appellate Division issued an unpublished opinion called In the Matter of the Appeal of the Denial of P.J.M.’s Application for a Permit to Carry a Handgun and the Revocation of P.J.M.’s Firearms Purchaser Identification Card (hereafter, “PJM”).
The 18-page decision affirms a trial court’s decision denying PJM’s application for a permit to carry a handgun and revoking his FPIC, and rejecting his facial challenge of the constitutionality of New Jersey’s 2C:58-3(c)(5) issuance statute along the way.
2C:58-3(c)(5) – To any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm;
Although the facts of this case are unique, they are similar to another case we recently covered in which New Jersey used constitutionally-protected speech as a means to deny a carry permit to a person under the subjective “public health, safety, and welfare” clause.
Also similar is the fact that the New Jersey Attorney General (then Matthew Platkin) proactively intervened in both cases. In the case of PJM, he submitted an amicus curiae brief supporting the state’s position (mentioned on page two of this decision).
In the most recent case of PJM, the state appears to have engaged in retaliatory behavior, a conclusion that can be reached by simply reading the court’s own decision.
The simple timeline:
- PJM held an FPIC card since 2005
- PJM filed for an application to carry a concealed handgun (Elmwood Park)
- PJM’s application included the four required character references (all positive)
- In April 2023, the Chief of Police denied the application based on previous DWI convictions
- PJM appealed
The court’s decision reads that “In response to petitioner’s appeal, the State moved to revoke his existing FPIC.”
PJM’s record would raise eyebrows among the population. He had DWI (driving while intoxicated) convictions in 2006, 2007, and 2014 (not contested), as well as three violations for abandoning a motor vehicle, for which he had alternative stories.
In 2007, PJM was arrested in Florida for possession of cocaine, battery, and resistance/obstruction of arrest. He subsequently pleaded guilty to a misdemeanor offense and received unsupervised probation.
In January of 2014, he was charged with simple assault in connection with an alleged domestic violence incident. Charges were dismissed after the partner failed to appear in court, and no restraining order was ever issued. PJM testified that he called the police on his domestic partner, who became aggressive and tried to destroy his property.
However, despite all of the above incidents, PJM testified (and the court decision did not otherwise dispute) that he:
- had no felony convictions
- had never been subject to a restraining order
- was not on a terrorist watchlist
- was not subject to any statutory firearms disqualifications
Regardless of a number of mistakes and perhaps poor life choices, PJM should not have been disqualified from firearms ownership according to the strict list of objective prohibitions.
Notwithstanding, the Elmwood Park Chief of Police not only denied PJM’s carry permit request employing a subjectively reasoned “totality of the circumstances” approach, but admitted to using different criteria for weighing the issuance of a carry permit versus an FPIC or handgun purchase permits, essentially making up his own interpretation of the law:
[I]t’s the ability to carry a firearm as opposed to just possess and own one, in your home, right. There [are] rules that come with just possessing ownership of a handgun. Now it’s another situation where you now carry it.
In an unusual twist, in PJM’s appeal he argued “that ‘diversity, equity and inclusion demand’ review of the constitutionality of N.J.S.A. 2C:58-3(c)(5) because the current version of the statute threatens to ‘deny minorities their rights’ and the statute’s language is vague under Rahimi.” The Appeals Court outright dismisses this claim because PJM “does not specifically delineate the constitutional provisions… which he claims have been violated.”
It then addresses his facial challenge to the constitutionality of the New Jersey statute, suggesting his points lack merit. In defense, the court cites itself, writing, “We previously held N.J.S.A. 2C:58-3(c)(5) does not offend the Court’s decision in Bruen.” In upholding itself, the court cites the M.U. case we previously covered.
In summary, the court upholds the subjective statute writing, “The court fully considered the public safety implications of granting petitioner’s application,” adding, “…petitioner would be a threat to public health, safety, and welfare under the statute…”
The court also abstained from directly addressing the seemingly retaliatory revocation of the FPIC, writing “…we conclude the trial court’s order denying petitioner’s application for a carry permit was also not error for these same reasons.”
