Legal Brief to the Governor of New Jersey Proposing Changes to the State's Gun Permit Law to Prevent Gun Violence and the Sale of Firearms to People with Prior Expunged Convictions
While New Jersey has enacted a comprehensive regulatory framework controlling the purchase, possession and carriage of firearms, it is not without its flaws. The following brief will begin by providing an overview of the regulatory framework as it currently exists and will then address two shortcomings within that framework that are jeopardizing citizen’s safety. Specifically, it will explain how and why the law as it currently stands fails to adequately ensure individuals with prior expunged criminal records are prevented from acquiring firearms and how the current mode of decentralized record keeping enables falsification of applications and limits the ability of investigative agencies to adequately perform background checks. In response to these issues, the following brief contains low-cost and easily implementable solutions that if made law, would close the gaps that currently exist and better protect the citizens of New Jersey from gun violence.
While I acknowledge that the issues addressed in this brief are distinct from the broader gun control debate that needs to take place, the suggested changes are the proverbial “low hanging fruit” that should be easily implementable and not politically infeasible.
If you agree, I invite you to write the governor, your senator, assemblymen and women and New Jersey's attorney general. Hopefully, if enough attention is drawn to this issue, New Jersey's elected leaders will act and ensure that New Jersey’s citizens are better protected from gun violence by keeping firearms out of the hands of those who are unfit.
Read the legal brief PDF file here.
[1] John Gramlich, What the data says about gun deaths in the U.S., Pew Research Center (Aug. 16, 2019).
[2] American Medical Association, AMA Calls Gun Violence "A Public Health
Crisis," Press Releases (June 14, 2016).
I. The State of New Jersey’s Regulatory Framework for the Purchase of Firearms
In New Jersey, the law governing the purchase of firearms is codified as N.J.S.A. 2C:58-3. The law provides that a prospective firearms buyer must first obtain a Firearms Purchaser Identification Card or a Permit to Purchase a Handgun. Firearm Purchaser Identification Cards are required for the purchase of rifles or shotguns.[1] As the name indicates, a permit to purchase a handgun is required for any handgun purchase (both types of permits and identification cards will be referred to here collectively as a “permit” or “permits”).[2] The law provides that an individual applying for a permit must be at least 18 years of age (21 for a handgun permit) and “of good character and good repute in the community in which he or she lives.”[3] Applications are reviewed by local police departments or the New Jersey State Police and must be approved by the department’s chief of police prior to the issuance of any permit.[4]
The law provides certain specific reasons, or “disabilities,” that serve as cause to deny a permit application. However, there is a presumption in favor of granting a permit unless the applicant fits into one of the specified disqualifying categories. N.J.S.A. 2C:58-3(c) outlines these disqualifications and states the following, in pertinent part:
(c) Who may obtain. No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence […], whether or not armed with or possessing a weapon at the time of the offense;
(2) To any drug dependent person[,]… to any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;
(3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card;
[…]
(5) To any person where the issuance would not be in the interest of the public health, safety, or welfare[.]
Any person who is denied a permit may appeal by requesting a hearing in Superior Court within 30 days of the denial of the application for a permit.[5] Thereafter, a judge is to conduct a de novo testimonial hearing in order to reach an independent conclusion on the applicant’s permit request.[6] The agency that previously denied the application has the burden of proving the existence of good cause for the denial by a preponderance of the evidence—or in other words, that it is more likely than not that the disqualifier applies.[7]
Concerning the subjective criteria outlined in disqualifier (5) of N.J.S.A. 2C:58-3(c)—that a permit may be denied “[t]o any person where the issuance would not be in the interest of the public health, safety, or welfare”—courts have instructed that this provision should be interpreted “so that the broader interest of the public takes precedence over petitioner’s interest in obtaining a handgun.”[8] Court’s decisions have further instructed that the focus should be placed on each individual and their potential for harming another, not whether any specific threats were made by the applicant to use a firearm unlawfully—though such conduct could be considered.[9]
While at first glance the language of the first disqualifier prohibiting any person who has been convicted of any crime or a disorderly persons offense involving an act of domestic violence from obtaining a permit may seem clear, it leaves unanswered one very serious question: may police investigators consider previously expunged criminal records?
II. Consideration of Expunged Criminal Records by Police and the Court in Evaluating an Applicant’s Disability Pursuant to N.J.S.A. 2C:58-3(c)(5) and (3).
Generally, once an expungement is granted as to a prior criminal conviction, the conviction is treated as if it no longer exists and can only be used for specifically delineated purposes.[10] There is no specific exception allowing the use of expunged records for the purpose of determining whether an applicant should be issued a firearm permit. New Jersey’s criminal code, Title 2C, does however, include other instances where expunged records may be considered. These exceptions include:
(1) use by the Department of Corrections (N.J.S.A. 2C:52-23);
(2) use by the Parole Board (N.J.S.A. 2C:52-22);
(3) use by the court system for setting bail, pre-sentence reports or sentencing (N.J.S.A. 2C:52-21);
(4) use for supervisory treatment programs or diversionary programs (N.J.S.A. 2C:52-20);
(5) use by the VCCB (N.J.S.A. 2C:52-18);
(6) by order of a Superior Court Judge permitting release (N.J.S.A. 2C:52-19); and
(7) use by agencies on a pending petition for expungement (N.J.S.A. 2C:52-17).
Conspicuously absent from this list is an exception for the use of expunged records in determining the suitability of an applicant to obtain a firearm permit. This principle is in stark contrast to the ability of courts and police investigators to consider even criminal charges that did not result in a conviction or were dismissed when evaluating a firearm permit application.[11]
Appeals arising from the denial of a firearm permit following the consideration of expunged records by police have been heard by courts and in at least one case resulted in an unpublished appellate court decision.[12] In that case, captioned In the matter of In re N.R., a police chief denied an applicant’s permit application on the basis of the applicant’s prior criminal record, which was expunged sometime after their permit application was submitted.[13] The appellate court ruled that in that case, it was proper for the police chief to consider the expunged arrest records, because the expungement was not obtained until after the petitioner had submitted the permit application and because the applicant did not object to testimony regarding the expunged matters during the hearing.[14] The court further recognized the State maintains a strong interest in preventing an unfit applicant from possessing a firearm.[15]
Further language in In the matter of In re N.R., indicated that expunged records may be used for designated purposes, as outlined in N.J.S.A. 2C:52-17 through 23 (various sections). “Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10.” This, however, is unhelpful in determining whether police may consider expunged records, because they are often not in possession of those records and have no way knowing whether any exist.
Therefore, if the only thing permitting the consideration of the expunged records in In the matter of In re N.R., was the fact that the expungement was obtained after the permit application was filed and the applicant failed to timely object. This leaves a gaping hole in the framework of New Jersey’s firearm permit regiment. None of the purposes designated under the relevant provisions of N.J.S.A. 2C:52, addressing the expungement of criminal records, considers the use of expunged criminal records in the context of a firearm permit, nor are these sealed records necessarily in the possession of, accessible to, or even known to exist by the police departments that are tasked with conducting these investigations.
i. Analogy to the Consideration of Expunged Mental Health Records
In another case, an appellate court ruled that an applicant’s private medical history could not be kept confidential in determining whether they were subject to any of the statutory disqualifiers prohibiting the issuance of firearm permit.[16] For example, proprietary medical information is relevant to determining in assessing the applicability of disqualifier (3) of N.J.S.A. 2C:58-3, which prohibits issuing a permit to “any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic…[.]”[17]
In yet another non-precedential, yet important case, a trial court addressed the issue of whether a court, after becoming aware that a firearm applicant had a prior psychiatric diagnosis or commitment record that was expunged, could inquire into whether the applicant had overcome a psychiatric disability.[18] There, the Court held that even though petitioner’s prior commitment to a psychiatric hospital had been expunged, he was required to waive the privilege granted by his expungement and admit his prior commitment on the application if he wished to proceed with his application for a firearm permit, pursuant to N.J.S.A. 2C:58-3(e) which expressly provided for the consideration and waiver of the expungement privilege. This reasoning supports the conclusion that if courts may consider expunged mental health records, then the consideration of an applicant’s expunged criminal records should also be permitted, because both are critical in preventing those who are unfit to possess firearms from obtaining permits.[19]
III. Inconsistent Provisions Within N.J.S.A. 2C:58-3
N.J.S.A. 2C:58-3(f) provides that in regard to firearm permit applications “[t]here 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 specifically set forth in this chapter.” However, the language of N.J.S.A. 2C:58-3(e), which addresses the contents of an application for a firearm permit, provides that the applicant disclose “whether he has ever been convicted of a crime or a disorderly persons offense.” As previously stated, the statute does not limit this language to provide for the omission of expunged records. Further, N.J.S.A. 2C:58-3(e) provides, in a catch-all provision, that the chief of police or superintendent may require “other information [deemed] necessary for the proper enforcement of this chapter.” These provisions are clearly in tension.
The statute also provides that by making an application for a firearms permit, an applicant “shall waive any statutory or other right of confidentiality relating to institutional confinement.”[20] Again, this only pertains to mental health records. The waiver of expungement as to criminal records is not addressed, though the need is equally acute. Courts and municipalities therefore are left in a precarious position as the law governing the consideration of expunged records is unclear and is in tension with the legislature’s apparent intention to prevent the ownership of firearms by “any person where the issuance would not be in the interest of the public health, safety or welfare.”[21]
IV. Decentralized Filing of Gun Permits and Orders Denying Appeals
Another disconcerting omission from New Jersey’s gun permitting regulation concerns the decentralized way applications are processed and tracked. Under the current system, applicants are to file their applications in the local police department for the municipality in which they reside.[22] The municipality’s chief of police or superintendent is required to investigate all applications and is required to have a fingerprint check done on the applicant for searching against any records within the municipality, county, State Bureau of Identification and the FBI.[23] The municipality has thirty days to grant or deny the application.[24] An applicant who is denied a permit may then appeal the denial in the Superior Court in the county where they reside or in which the permit was filed.[25] Importantly, N.J.S.A. 2C:58-3(d) provides that “[n]o formal pleading…shall be required[.]”[26]
Because no formal pleadings are required, appeals from the denials of firearm permits are not assigned docket numbers and are not electronically filed. Whether the court’s or the municipality’s findings concerning an applicant’s permit denial are searchable by other municipalities, counties or even states, is unknown, but unlikely. There is no statutory requirement—known to this writer—that these orders are uploaded into any system for tracking or future reference.
This becomes particularly problematic in situations where an applicant was denied based on prior uncharged, dismissed, or expunged records, which were considered by a municipality that had access to those records but where other municipalities would not. This situation is likely to arise where an applicant may be known to the local police department or where Computer Aided Dispatch (CAD) reports for 9-1-1 calls to an applicant’s home address could be reviewed, which may yield the discovery of information that otherwise would not be known to police departments outside of the town where the applicant resides, because these incidents did not result in charges, or because the charges were dismissed or expunged. Question 27 on the uniform permit application used in New Jersey specifically asks whether the applicant has ever had a firearms permit revoked or refused.[27] However, without any centralized database or filing requirements, ensuring applicant’s answer this question truthfully would require the investigating municipality to inquire within every other municipality in the state. For obvious reasons, this is a practical impossibility. This problem is largely a function of the decentralized framework of gun permitting to each municipality and the language of N.J.S.A. 2C:58-3(d) that does not require formal filings for the hearing of appeals. This undoubtedly presents a shortcoming in the current framework that is designed to keep firearms out of the hands of those who are unfit and directly affects investigators ability to determine the applicability of the disqualifier embodied in N.J.S.A. 2C:58-3(c)(4)—denying a permit to anybody who falsifies an application.
V. Potential Solutions
Despite the issues presented in the preceding sections, solutions could be close at hand. Simple amendments to N.J.S.A. 2C:58-3 (firearm permits) and N.J.S.A. 2C:52-17 through 23 (expungements) could clarify and codify a standard practice providing for the disclosure and consideration of expunged prior criminal records in the process of vetting a firearm permit applicant by investigators.
As for issues concerning the way applications are filed and tracked, New Jersey already requires electronic filing in almost all civil, criminal, family and appellate matters. Within this electronic filing framework, cases are easily searchable across vicinages. If an electronic filing and formal pleading requirement were adopted, each permit or appeal could be assigned a docket number (or a State Bureau of Investigation number) which would enable investigating police departments to search and track an applicant’s prior applications, permits and/or appeals, regardless of the filing jurisdiction.
While one could entertain concerns over the security of uploading proprietary, confidential, information that is included on a permit application, the electronic filing interface already permits the filing of documents with access restrictions. For example, documents in criminal e-courts marked “confidential” are only visible to the case attorneys and the court.[28] Meanwhile, filings submitted as “protected” are only visible to the filer and the court.[29] Moreover, any concerns regarding the security of sensitive personal information can be ameliorated by looking to New Jersey Court Rule 1:38 that requires the redaction of all personal identifying information. This requirement would not sacrifice the utility of electronic filing however, because the information that would be subject to redaction is not germane to the determination of a person’s fitness to possess a firearm.[30] Accordingly, an applicant’s prior convictions or expunged mental health/criminal conviction records can be adequately protected by electronically filing with confidential or protected status.
The legislature could also require the submission of all permit applications to the New Jersey State Police instead of local police departments, as is currently the case. This would enable a single agency to maintain the records of all applications, permits and appeals. Centralizing the filing and review process will ensure greater consistency in the review of permits and improve the overall efficiency of the permitting/appellate process due to the economy of scale.[31] The State Police could still inquire within an applicant’s local police department to learn about uncharged incidents or charges that were dropped and/or dismissed that may be retrievable from the local police’ CAD system. If this information were provided to a centralized investigative agency, it could be incorporated into the applicants record and be considered in that or any subsequent permit application.
VI. Conclusion
The holes in New Jersey’s gun permitting regiment are clear and potentially dangerous. Permitting the consideration of expunged convictions and creating a state-wide protocol that addresses the inconsistent and non-transparent way gun permit applications are evaluated is of paramount importance in ensuring the safety of the citizens of this State. It is in furtherance of the legislatures stated goal—to protect the interest of the public health, safety and welfare—that the legislature and governor can and should act to close these gaps. The solutions proposed herein are easily implementable, requiring only the amendment of N.J.S.A. 2C:52-17 through 23 or 2C:58-3(e) to explicitly required the waiver of any expungement privilege concerning a prior criminal conviction—and not merely expunged mental health records, as the laws currently allows.
The legislature could also ensure that permit applications and appeals are searchable across agencies by requiring the use of the electronic filing system already in place for other civil, criminal, family or appellate matters and by assigning docket or investigation numbers to each application. Further, by centralizing the permitting process and requiring that the New Jersey State Police conduct the background checks for all firearm permit applicants instead of the local police departments, the legislature could improve the consistency with which permits are reviewed and improve the systems efficiency by harnessing the economy of scale.
[1] N.J.S.A. 2C:58-3(b).
[2] N.J.S.A. 2C:58-3(a).
[3] N.J.S.A. 2C:58-3(c).
[4] Id.
[5] N.J.S.A. 2C:58-3.
[6] Hearings are held de novo. In re Osworth, 365 N.J. Super. 72, 77 (App. Div. 2003), citing Weston v. State, 60 N.J. 36, 45 (1972).
[7] Osworth at 77; Weston, at 46.
[8] In re Application of Clark, 257 N.J. Super. 152, 154 (Law Div. 1992).
[9] Hoffman v. Union Cty. Prosecutor, 240 N.J. Super. 206, 214 (Law Div. 1990).
[10] State v. King, 340 N.J. Super. 390 (App. Div 2001).
[11] See In re Osworth, supra 365 N.J. Super. at 79.
[12] In the matter of In re N.R., 2010 N.J. Super. Unpub. LEXIS 1022 (App. Div. 2010).
[13] Id. at *1-6.
[14] Id. at *15.
[15] Id. at *12
[16] State v. Cordoma, 372 N.J. Super. 524, 537 (App. Div. 2004) (stating that “in the face of evidence that provides a rational basis to question an applicant’s fitness to possess a firearm, we have held that a defendant’s right to maintain the confidentiality of medical information ‘is subordinate to the public’s interest in preventing individuals deemed statutorily unfit from possessing firearms.’”).
[17] N.J.S.A. 2C:58-3(c)(3).
[18] In re J.D., 407 N.J. Super. 317 (Law. Div. 2009).
[19] Cordoma, 372 N.J. Super. at 537.
[20] N.J.S.A. 2C:58-3(e).
[21] N.J.S.A. 2C:58-3(c)(5).
[22] N.J.S.A. 2C:58-3(e).
[23] Id.
[24] N.J.S.A. 2C:58-3(f).
[25] N.J.S.A. 2C:58-3(d).
[26] Id.
[27] Form S.T.S. 033, “Application for Firearms Purchaser Identification Card and/or Handgun Purchase Permit.”
[28] New Jersey Administrative Office of the Courts, eCourts: Frequently Asked Questions (November 30, 2018).
[29] Id.
[30] New Jersey Court Rule 1:38 defines “personal identifier” as a “Social Security number, driver's license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number.”
[31] “[I]n economics, the relationship between the size of a plant or industry and the lowest possible cost of a product. When a factory increases output, a reduction in the average cost of a product is usually obtained. This reduction is known as economy of scale. Increased labour supply, better specialization, improved technology, and discovery of new resources or better implementation of existing ones all can increase output and lead to economy of scale.” Economy of Scale, Encyclopedia Britannica (2019).