Courts Hearing Gun Permit Appeals May Not Seize and Forfeit Guns Already Possessed

Date posted: March 21, 2023

Courts Hearing Gun Permit Appeals May Not Seize and Forfeit Guns Already Possessed

March 21, 2023 – In a case brought by the Nappen Law Firm and argued by Louis P. Nappen, Esq., the New Jersey Appellate Division issued a published Opinion finding that Courts hearing firearm permit appeals may not order the seizure and forfeiture of firearms already possessed.

The name of the case is: IMO the Appeal of the Denial of M.U.’s Application for a Handgun Purchase Permit & IMO the Revocation of M.U.’s Firearms Purchaser Identification Card and Compelling the Sale of His Firearms (hereinafter M.U.).

Over the last ten years — when people (who have previously been granted firearm permits and possessed firearms) applied for additional permits to purchase a handgun, duplicate firearms purchaser identification cards, or carry permits and those people appealed such application denials by their municipal police chiefs — it had become common practice, particularly for the Bergen County Prosecutor’s Office, to file forfeiture motions upon any firearms already lawfully acquired and possessed.

Louis Nappen, Esq., stated, “I am extremely pleased to have put an end to these unlawful forfeitures in New Jersey. The Appellate Division recognized the separations of firearm possession, purchase, and forfeiture under New Jersey laws, and that the State has no basis to motion for weapon forfeitures at permit appeal matters.”

Firearm purchase permits are governed under N.J.S.A. 2C:58-3. Firearm possession is governed under N.J.S.A. 2C:39. And firearm forfeitures are governed under other statutes that only apply under specified circumstances (such as extreme risk mental health issues, when the items are contraband, or when property is used in criminal activity).

The M.U. Court also found that, if the State moves for forfeiture under Chapter 64 (NJ’s “Forfeiture” statute), then people are entitled to jury trials, rather than merely allowing a judge to act as trier-of-fact (which is the case in firearm permit appeals).

That said, the Appellate Division upheld New Jersey’s “not in the interest of public health, safety or welfare” disqualifier to receiving firearm purchaser permits as constitutional, and that Courts may open criminal expungements to examine underlying reports to be used against permit applicants at firearm permit matters.

M.U. comes down while the constitutionality of “interest of public health, safety or welfare” and other firearm-related statutes are being challenged and proceed with litigation in the Federal Court system.

The M.U. Opinion relies heavily upon the findings of Burton v. Sills and its progeny. In 1968, Burton challenged the constitutionality of New Jersey’s “not in the interest of public health, safety or welfare” disqualifier, and the Burton Court’s decision to uphold the disqualifier was founded upon the fact that the Second Amendment was not an individual, fundamental, or incorporated right at that time. Since then, however, the U.S. Supreme Court found in 2008’s DC v. Heller that the Second Amendment is a fundamental, individual right and, in 2010’s McDonald v. Chicago, that States must recognize those rights. In 2022’s NYSRPA v. Bruen, the U.S. Supreme Court mandated a standard that, to justify regulations concerning the right to keep and bear arms –

“Government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

In Bruen and Heller, the U.S. Supreme Court also ruled that, when it comes to the individual right to keep and bear arms, courts may not apply a balancing test. Petitioner M.U. challenged New Jersey’s “interest of public health, safety and welfare” standard as unconstitutional based upon the Bruen standard and for other reasons, including vagueness and overbreadth. The M.U. Opinion does not, apparently, address M.U.’s argument that “interest of public health, safety or welfare” is a prima facie unconstitutional balancing test or distinguish that the historical references that the Court relied upon were categorical disqualifiers (such as being Catholic, Native American, African American, or people who refused to pledge loyalty to The Crown, etc.) as opposed to ad hoc disqualifiers (determined at the discretion of individual public officials).

When questioned about the decision, Evan F. Nappen, Esq., stated, “It is worth noting that the historical precedents relied upon by the Court were blatantly racist gun laws that existed throughout American history, and this tradition of institutionalized racism was furthered by the Court today by allowing expunged records to be used to deny Second Amendment rights. Expungements have recently been broadened in New Jersey to address prior racial injustice. The Court’s decision, however, undoes the goals of expungements for relief to enjoy civil rights.”

As of this writing, it remains to be seen if either party will appeal the matter further.

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