On March 13, 2017, Louis P. Nappen of the Evan F. Nappen Law Attorney At Law PC firm argued that a handgun discovered in his client’s glove box after a car accident cannot be used as evidence since the firearm was unconstitutionally obtained by police who entered the car without a warrant or Fourth Amendment exception.
In its March 16, 2017 decision, Burlington County Superior Court Judge Philip E. Haines agreed.
After the accident, while defendant Michael Jones was outside of his car being treated by EMTs, police asked Jones for his license, registration and insurance. Police, however, were required to give Jones a reasonable opportunity to retrieve these documents from his car before they entered his vehicle. The testimony at the motion hearing made it clear that police did not ask Jones to retrieve the documents himself, nor was Jones unable or unwilling to do so. Accordingly, all items found after police warrantlessly opened Jones’ car door was deemed inadmissible as evidence.
“I’m extremely happy to see that the Fourth Amendment still holds weight in New Jersey,” said Attorney Louis Nappen regarding the decision. “And my client wants his case to be known as a beacon for others who fight for their rights, and in the hope that other people will not have to suffer this same type of ordeal.”
Read the full decision.
Pursuant to N.J.S. 2C:58-3d, which governs New Jersey firearm permit appeals, “No formal pleading and no filing fee shall be required as a preliminary to such hearing.” (Emphasis added.)
Despite the above, over the last year, New Jersey’s county courts have been requiring a $50 filing fee “made payable to the Treasurer State of New Jersey” from people wishing to appeal their police chiefs’ denials of firearm permit applications.
The firm of Evan F. Nappen Attorney at Law PC immediately began challenging this practice. However, such matters often take months to finally come to a hearing.
On October 18, 2016, the Nappen Firm completed a case in Ocean County that included this challenge, regarding which the judge agreed and ordered “that the applicant shall be reimbursed the $50.00 filing fee.”
Louis P. Nappen, Esq., who handled the matter for the Firm, stated, ‘“No filing fee’ means ‘no filing fee.’ The law could not be clearer. I applaud the judge for correctly applying the law in this regard.”
The Order was served and, this past week, the Treasury of New Jersey issued the appellant his refund. (As pictured, above.)
“$50 may not seem like a lot,” Nappen continued, “but consider that there are thousands of permit appeals. That money adds up.”
In 1971, in the case Weston v. State, the New Jersey Supreme Court explained:
"The function of the Police Chief as the local administrative official charged with responsibility for the original decision to grant or withhold the firearms purchaser identification card involves largely the exercise of an informal discretion…. So viewed, it follows that the basic justice aimed at by the Legislature in expressly providing for judicial review, can be achieved fairly only by a de novo hearing in the County Court.… Such a judicial review compensates constitutionally for procedural deficiencies before the administrative official."
In 2010, the U.S. Supreme Court affirmed that the right to keep arms is a fundamental, individual constitutional right belonging to all U.S. citizens.
In this regard, Evan F. Nappen, Esq., stated, “Denial of one’s constitutional rights should not be a cash-cow for the State and something that can be arbitrarily increased to discourage people from exercising the right to keep and bear arms.”
In a brief dated November 7, 2016, submitted in the Appellate case of State v. Lambert, the Office of the Attorney General concedes that New Jersey’s Stun Gun Ban is unconstitutional, stating:
"[T]he State agrees with defendant that New Jersey’s stun-gun statute, N.J.S.A. 2C:39-3h, is unconstitutional in light of Caetano v. Massachusetts, 136 S.Ct. 1027 (2016), and defendant’s conviction under that statute should be vacated in the interests of justice." (See document.)
This position was in response to a brief filed on behalf of Appellant Lambert by Joshua Sanders, Esq., of the New Jersey Office of the Public Defender Appellate Division. (See document.)
In this case, Lambert was charged in 2009 with possession of a stun gun in violation of N.J.S. 2C:39-3h, as well as other non-weapons charges.
Although the appellant did not raise this constitutional issue in his original 2015 plea, the Attorney General confirms in its brief:
"[T]he State agrees with defendant’s reading of United States Supreme Court precedent. To briefly recap Second-Amendment jurisprudence, the United States Supreme Court held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U.S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States[.]” McDonald v. Chicago, 561 U.S. 742, 750 (2010)."
The AG further recognizes:
"The State is unaware of any legitimate basis to distinguish New Jersey’s stun-gun statute from Massachusetts’ statute. The New Jersey stun-gun statute, like the Massachusetts statute, criminalizes mere possession of a stun gun….. Since both statutes criminalize mere possession of a stun gun, for the reasons outlined in Caetano, New Jersey’s stun-gun statute, like Massachusetts’s statute, violates the Second Amendment."
Evan F. Nappen, Esq., whose practice focuses on firearm and weapons law, stated in response to this recent development, “This is going to help a lot of people, including those who are looking for a reliable, non-lethal form of defense.” Additionally, Nappen confirmed that he presently has a number of cases in which this will be of help.
The New Jersey Supreme Court, for the first time in 45 years, will be considering Second Amendment rights. The Nappen Law Firm has filed its brief with the Supreme Court. A website version may be read here.
The brief strikes at the heart of New Jersey's gun control scheme. NJS 2C:39-5b Unlawful Possession of Weapons-Handgunsreads as follows:
"Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the second degree." (Emphasis added)
Nappen argues that currently, in New Jersey, individuals who possess a handgun, even in their home, without a permit to possess (so called – “permit to carry”) do so under a “presumption of illegality.” They must prove they fall under one of the “strictly construed” exemptions listed in N.J.S. 2C:39-6 to establish their innocence. (N.J.S. 2C:39-6e exempts possession in one’s residence.)
Without a permit to possess, the only way to legally possess a handgun in one’s home in New Jersey, is by exemption. Individuals, who rely on exemptions, are perpetually at risk of arrest, prosecution and having to prove facts at trial necessary to establish one’s innocence.
To be granted a New Jersey permit to possess a handgun, one must demonstrate “justifiable need.” This is an extraordinarily difficult requirement. The only way a private citizen may meet the requirement is if the applicant can “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which 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.” N.J.A.C. § 13:54-2.4.
The United States Constitution does not contain a Bill of Needs. It contains a Bill of Rights. No "need," justifiable or otherwise, should ever be required for an individual to exercise the rights guaranteed by that document.
The average private citizen who wishes to possess a handgun in his or her home, whether for protection, target practice, hunting, collecting or any other legitimate purpose, can not meet such an absurdly burdensome need requirement. It is a defacto ban.
The justifiable need a requirement has to be struck as unconstitutional, and average citizens must to be granted permits to possess. Otherwise, New Jersey's handgun possession law, N.J.S. 2C:39-5b, is itself unconstitutional because it converts a right into an exemption. Rights may have exemptions, but rights themselves must not merely be exemptions.
In a published decision binding upon all New Jersey municipalities, the New Jersey Appellate Division has confirmed that New Jersey municipalities may NOT require added forms for firearm permit applications beyond the state forms.
May 14, 2015’s appellate decision, In the Matter of the Denial for a New Jersey Firearms Purchaser Identification Card and Permit to Purchase a Handgun by Z.K., reversed a Middlesex County Superior Court Judge that affirmed an East Brunswick permit denial because the applicant refused to complete an added municipal form.
While the added municipal form at issue in Z.K. was, for the most part, duplicative of questions asked about juvenile delinquencies on the state form, the higher court found that East Brunswick’s additional form was nonetheless contrary to the plain meaning of two sections of the licensing statute.
One licensing statute section (N.J.S. 2C:58-3e) specifies that ONLY the New Jersey Superintendent of State Police may prescribe the permit form. Another section states:
“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.” (N.J.S. 2C:58-3f.)
Despite these provisions, over the years municipalities across New Jersey have routinely violated the above laws by adding wrongful paperwork and requirements to the licensing process. The present published Z.K. decision is the first case on this topic that is binding upon all New Jersey municipalities and licensing authorities.
Last year, two unpublished Appellate Division decisions overturned other municipalities that added forms or conditions to the State application process. In IMO Perez Paterson’s requirement that all applicants supply a passport photo was struck down as unlawful. In IMO McGovern, Jersey City’s requirement of several pages of added forms and certifications were struck down as unlawful. Both Perez and McGovern, however, were not “published” and, therefore – while informative to other police departments regarding how they should behave – the decisions were only officially binding upon those two cities.
Both Perez and the present Z.K. matters were funded in part by the NRA Civil Rights Defense Fund.
All three appeals –Perez, Z.K. and McGovern, – were handled by the law firm of Evan F. Nappen, Attorney at Law PC, and argued upon briefs written by Louis P. Nappen, Esq.
In response to the Z.K. decision, Louis Nappen said, “All New Jersey residents should be treated equally under the law and with equal Due Process. I’m glad that the Appellate Division recognized my arguments and did something positive to stop the rogue behaviors of licensing authorities.”
This is also an important development because the Superintendent of State Police has recently proposed Administrative Code that would violate State Law in a similar manner.
Evan Nappen further stated, “A message has finally been sent loud and clear for cities and towns to obey New Jersey gun law. The Association of New Jersey Rifle & Pistol Clubs has previously put all towns on notice regarding this issue by way of their operation ‘Permitting StrikeForce TM.’Now, municipalities that continue to break the law will face consequences.”
BREAKING NEWS: Keith Pantaleon Granted Suppression of All Evidence Obtained Due ToJersey City Officers’ Unlawful Entry of His Home
HUDSON COUNTY, NEW JERSEY — At approximately 10pm on Thursday night, January 24, 2013, 33-year-old Keith Pantaleon of Jersey City, New Jersey, was in the bedroom of his apartment after a full day’s work – when he heard thumping noises coming from his living room.
Believing that his residence may be being broken into, he grabbed his soft-bound Day Planner case (which also held a lawfully purchased handgun), and cracked open his bedroom door to investigate.
In the center of his living room, he saw a man dressed entirely in dark clothing who had his back towards him. He cracked open his door slightly further and saw near the entrance to his apartment a police officer, his landlord, and an EMT worker. When the man dressed in dark clothing in the middle of his living room turned around, he saw it was another police officer.
One of the officers immediately ordered Pantaleon to come out of his bedroom. Pantaleon tossed his unopened Day Planner case onto his bed. As he went to close his bedroom door behind him, one of the officers pushed him into his living room. The officer then ordered Pantaleon to face a corner of his living room and handcuffed him.
As one of the officers watched Pantaleon (who remained in custody in Pantaleon’s living room), the other officer warrantlessly searched Pantaleon’s bedroom.
Officers took Pantaleon to police headquarters, where he was charged with unlawful possession of: two handguns, a rifle, an “assault rifle,” a large capacity magazine, and certain ammunition.
On the night in question, Pantaleon’s upstairs neighbor complained to police about insufficient heat in his apartment. The boiler for the apartment building is adjacent to the kitchen area of Pantaleon’s residence. Despite the late hour and lack of consent by Pantaleon, police had the landlord open Pantaleon’s residence on their behalf.
In November 2013, a full suppression hearing was held before the Honorable John A. Young, Jr. of the Hudson County Superior Court, at which Louis P. Nappen, Esq., of Evan F. Nappen, Attorney at Law PC, represented Pantaleon. At the hearing, testimony was taken from two officers, an EMT, Pantaleon’s landlord and the upstairs neighbor.
On January 15, 2014, Judge Young filed a written decision (which may be downloaded by clicking here), finding:
“Here, the police conduct and entering Defendant’s apartment, without a warrant, and without satisfying an exception to the warrant requirement, violated Defendant’s federal and state constitutional rights. As a result, all evidence seized as a result of the Officers’ warrantless entry and search of Defendant’s apartment must be suppressed.”
The Court found that the officers’ testimony “simply did not have a ring of truthfulness to it.”
The Court struck down every exemption to the warrant requirement that the State contended --
The Court struck down “emergency aid,” finding “No testimony that [the upstairs neighbor] required immediate assistance” and “no immediate risk to [the upstairs neighbor’s] safety that would justify a warrantless entry or search of Defendant’s apartment.”
The Court struck down “exigency,” finding “Under these circumstances, I cannot find an objectively reasonable emergency that would vindicate or support the Officers’ warrantless entry. No exigency existed on the night in question that would justify the entry into Defendant’s apartment, at 10:30pm on a weekday night, to examine the heating unit.”
The Court found that Pantaleon never consented to a search of his apartment, and that the landlord did not have authority to allow officers entry into Pantaleon’s apartment.
Lastly, the Court struck down the State’s contention that “plain view” applied, as the Officers were not in a permissible vantage point to view Pantaleon in the first instance, and that, even if they had been, nothing was “’immediately apparent’ to the Officer that was contraband or evidence of a crime.
Furthermore, an Officer inexcusably moved an item in Pantaleon’s bedroom in order to better view what was inside.
Louis P. Nappen, attorney for Pantaleon, stated, “I am glad that the Court sent a strong message that people’s privacy, especially in their homes, must be protected in New Jersey. And, in particular, Mr. Pantaleon deserved better treatment. Although he spent a month in jail for no reason, I am extremely proud that we were first able to reduce his $75,000 bail to have him freed, and now even happier that he will likely soon no longer face these wrongful charges.”
In New Jersey, permits to purchase firearms are not required for possession of firearms within one’s home. Possession of firearms within one’s residence is exempted under N.J.S. 2C:39-6e, as well as protected under the U.S. Supreme Court’s rulings on the Second Amendment in D.C. v. Heller and Chicago v. McDonald, and the ruling in the December 2013 New Jersey Appellate Division IMO Wheeler.
Pursuant to statute, the ammunition in question is also legal to possess since New Jersey’s ammunition prohibition only applies to handgun ammunition and the ammunition at issue is specifically designed for use in a rifle. The rifle at issue was allegedly an AR-15, one of the most commonly possessed type of rifle in America.
Pantaleon lawfully purchased his firearms as a prior resident of Pennsylvania. He also possesses permits to carry firearms from Nevada and Florida. Pantaleon has no prior criminal convictions and no mental health history. He is not accused of misusing or threatening to use any firearms. No unlawful purpose for said possessions has been alleged.
This case has been highly profiled on programs such as Glenn Beck’s The Blaze. Moreover, a friend of Pantaleon’s brought awareness of his matter on the Internet, which raised funds to hire the Nappen law firm to represent Pantaleon. (See http://www.gofundme.com/Stand4Keith .) Shortly thereafter, the NRA Civil Rights Defense Fund has also helped fund Pantaleon’s defense.
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