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ANJRPC/Nappen warning impending law changes

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Please Submit Your Comments Opposing Proposed Regulations by February 13! 

 

 

THE FOLLOWING ANALYSIS WAS PREPARED EXCLUSIVELY FOR ANJRPC MEMBERS BY GUN RIGHTS ATTORNEY EVAN NAPPEN:

 

 

The New Jersey State Police have put forward administrative rule proposals (PRN 2014-220) that would dramatically affect New Jersey gun laws. These proposals, if enacted, would become part of the New Jersey Administrative Code and would be enforced as law in New Jersey. The proposals contain a number of serious problems which are summarized as follows:

 

1)     An attempt by the State Police to subvert current New Jersey law that prevents towns and cities from creating their own inconsistent gun license forms.  This is a direct attack on ANJRPC's Permitting StrikeForce program, and an attempt to prevent ANJRPC from enforcing state law against towns that are in violation of the law, by trying to give municipalities more authority than they have under state law. The New Jersey Courts have affirmed, in two cases (In re Jeremy Perez, A-0498-12T2 (App. Div 2014) and In re Michael McGovernA-1282-12T4 (App. Div. 2014)), state statute that says it is not permissible for towns to invent their own forms and requirements in the permitting process. Despite the New Jersey statute prohibiting it, and the Courts' rulings, the New Jersey State Police have proposed a rule that would open the door to allow "issuing agencies" to request additional information beyond what state law currently specifies and make the application process even more lengthy and onerous than it already is.

 

2)     An attempt by the State Police to create de facto rifle and shotgun registration. Registration of rifles and shotguns in New Jersey is voluntary. The State Police want retired dealers to be forced to keep their rifle and shotgun records (certificates of eligibility) FOREVER - the equivalent of a registry. The State Police have admitted that they want this because New Jersey does not require rifles and shotguns to be registered. In addition to it being unreasonable for any person to have to keep any record forever, creating a gun registry when the law specifically does not create one is contrary to New Jersey gun laws.

 

3)     The Rules Proposal is defective because it fails to contain a legally required "Federal Standards Statement" indicating how and why the proposal is stricter than Federal law.  The State Police claim that the Federal Standards Statement is not required because none of the proposed rules "implement, comply with, or participate in any program established under federal law."  This is not true, as the rules proposed deal squarely with the State Police operating as a point of contact for NICS (National Instant Criminal Background Check System) for all firearms purchases. They do this without any state law authorizing them to do so and furthermore, the New Jersey system exceeds federal law (among other things, the federal NICS system and approval call-in line are open substantially longer and on more days than the New Jersey state NICS system and approval call-in line). New Jersey taxpayers and purchasers pay for New Jersey to run the NICS line when the federal gun line is available at no charge and for more hours in most other jurisdictions. At a very minimum, if the New Jersey NICS line is closed, dealers should automatically be allowed to use the federal NICS line so that sales can occur.  The State Police claim that none of their proposals impact federal law is flat-out false and is a serious defect in the rules proposal.

 

4)     The Rules Proposal also attempts to legitimize the state police's longtime unauthorized practice of combining New Jersey's permit to purchase a handgun and the "form of register" onto a single form.  It is a little known fact that New Jersey law actually mandates two separate forms, and they are distinct from each other as specified under the law:

  • The form of register is supposed to be in triplicate.  Permits to purchase handguns are supposed to be in quadruplicate. 
  • The form of register is supposed to go to just the dealer. The permit to purchase handguns is supposed to be issued just to the "applicant," not the licensed dealer. 
  • not on the permit. Under N.J.S. 2C 58-3a one must only "secure" a permit to purchase a handgun  (there is no signing requirement for the permit).
  • The form of register allows for the forms to go to the "Office of the Captain of the Precinct" (and in the alternative, if there is no Chief of Police, a duplicate copy is sent to the "Clerk of the County" (See N.J.S. 2C 58-2e)). In contrast, the copies of the permit to purchase a handgun may only go to the Superintendent or Chief of Police of the Municipality. They cannot go to the Captain of the Precinct, nor are they allowed to be filed with the Clerk of the County. 

Despite this clear language of longstanding state law requiring two separate and distinct forms and with different rules for each, the State Police have long ignored the law and unilaterally combined the two forms into the single form that most gun owners are familiar with today.

 

The current rules proposal by the State Police are an attempt to retroactively legitimize this unauthorized practice that has gone on for decades.  But an administrative regulation like the one proposed cannot conflict with clear state law to the contrary.

 

5)     The rules propose to readopt regulations related to a statutory prohibition on owning firearms by those who have had firearms seized pursuant to allegations of domestic violence, who have not later had those firearms returned even after being cleared of domestic violence. This little-known disqualifier has been on the books for over ten years, yet the State Police have failed to plainly state it on any gun license application or form - thereby setting a hidden trap for innocent individuals who unwittingly agree to have seized guns sold by a dealer or otherwise not returned to them, even though they have been cleared of charges.  When they later seek to possess or purchase firearms, they then become subject to criminal prosecution as a "prohibited person" in possession of firearms, merely because they elected not to take back possession of their wrongly seized guns (and for no other reason).  Though the state police do not have the authority to eliminate this disqualifier, they do have discretion to articulate it on the New Jersey application and forms so that the public will be educated about this "surprise" disqualifier-trap.

 

6)     The proposal attempts to invalidate firearm purchaser ID cards for change of address, name or sex, making the card void after 30 days if such a change occurs. Currently the validity of the card is not revoked for such changes in information, as long as the individual applies for a new card within the 30 days. New Jersey is notorious for slow processing of firearm ID card applications, and many towns simply ignore the 30-day requirement and take many, many months before issuing even replacement ID cards. The card needs to remain valid until the new card is issued. Otherwise, individuals could find themselves in criminal trouble even for mere transport of their legally owned rifles and shotguns, among other things.

 

7)     The State Police want to force the application for an extension of a permit to purchase a handgun to be made within the initial 90 day life of the permit, or else be denied. Currently, a permit to purchase a handgun can be extended to 180 days regardless of whether an individual applies for the extension during or after the initial 90 day life of the permit, so long as the total time does not exceed 180 days.

 

8)     The State Police are attempting to impose unreasonable burdens on New Jersey firearms dealers, demonstrating a profound lack of insight and understanding of dealer operations: 

  • They proposed barring dealer employees from accessing any firearms, firearms records, and from making firearms transfers. This is absurd, because dealers depend on their employees to do all these things on a regular basis in order for their business to function.
  • They proposed forcing firearms dealers to complete all record-keeping on the same business day, eliminating the current 24 hour time frame to complete recordkeeping. 
  • They proposed forcing dealers to keep all firearms at the licensed premises unless "expressly permitted by the law." The express permissions in the law are stingy and poorly thought-out, and will seriously interfere with the routine operations of many dealers. 
  • They proposed forcing gun dealers and gunsmiths to affix tags or labels to firearms with duplicative and unnecessary information, which (among other things) could pose a danger to gunsmiths working on these firearms, as they could get stuck or caught in tools or machinery or otherwise interfere with gunsmithing.

 

SUBMIT YOUR COMMENTS

TO THE STATE POLICE ASAP

 

Please submit your opposition to these rules by EMAIL, by February 13th 2015, to[email protected]

OR by mail, to:

 

Colonel Joseph R. Fuentes, Superintendent

Attn: Firearms Investigation Unit

New Jersey State Police

P.O. Box 7068

West Trenton, N.J. 08638

 

 

The following is a suggested comment that you can submit along with any additional comments you may wish to add (please note that the State Police will ignore comments on issues that do not specifically relate to their proposed new regulations):

 

Dear Colonel Fuentes, Superintendent,

 

Please accept the following comments as to the Rule Proposal Number PRN 2014-220:

 

1)     I oppose the rules proposal to allow cities and towns to request unauthorized information from firearms permit applicants and to create their own gun license forms. This is clearly prohibited by New Jersey state law, N.J.S. 2C:58-3(f), and recent caselaw, In re Jeremy Perez, A-0498-12T2 (App. Div 2014) and In re Michael McGovernA-1282-12T4 (App. Div. 2014), and would undermine private legal efforts currently under way to force municipalities to follow state law.  Such a regulation would contradict state law, and would legitimize a patchwork of inconsistent permitting practices throughout the state, which is against public policy and express legislative intent.

 

2)     I oppose forcing retired dealers to keep their rifle and shotgun records forever, thereby creating a de facto unauthorized long gun registry.  State law does not authorize the creation of a long gun registry, and it may not be created by any kind of administrative regulation.

 

3)     A "federal standards statement" should have been included in the rules promulgation, because New Jersey participates as a state point of contact in the federal NICS program, and operates that program more restrictively in New Jersey than it is operated by the federal government. New Jersey operates the system and call-in line on fewer days, and for fewer hours, than does the federal government, and charges a fee to purchasers unlike the federal government.  A federal standards statement is required, and I am requesting that you provide one.

 

4)     I oppose the attempt to retroactively legitimize the decades-old, unauthorized practice of combining the Permit to Purchase a handgun and the Form of Register into a single form -- these are supposed to be separate forms according to state law, and an administrative regulation cannot contradict state law, nor can it retroactively legitimize a practice that has been in conflict with state law for many decades.

 

5)     I urge that you mandate that the prohibition against owning firearms by persons who have had firearms seized and not returned be conspicuously placed into every gun application and form, so that the public is adequately notified of this prohibition.  For over a decade, those wrongly accused of domestic violence who later decline to have their seized firearms returned do not realize that the failure to take back their firearms triggers a provision of law making them "prohibited persons" ineligible to possess firearms.  This has also resulted in such persons being later prosecuted when they later attempt to purchase or possess new firearms.  The state police should do its part to make sure that firearms owners are aware that when they decline to have wrongly seized firearms returned, it has the effect of prohibiting them from future firearms ownership. It would be an easy matter for the state police to include this in the list of disqualifiers on its gun applications and forms, which would help notify the public of this ill-conceived legal trap.

 

6)     I oppose invalidating firearms ID cards after 30 days where there has only been a change of name, address, or sex.  Replacement ID cards are frequently not issued within 30 days, and can often take many, many months to issue. In the absence of other disqualifying factors, the old ID card should only become invalid upon actual issuance of the replacement card.  The mere fact that a person changes their name, address, or sex does not mean that the state can or should suspend their Second Amendment rights until local authorities get around to issuing a replacement identification card, regardless of how long that takes.  The proposed regulation needs to take into account the limitations, practices, and realities of the permitting process - and not be based blindly on a supposed 30-day period that is far too often not realized in practice.

 

7)     I oppose the proposed regulation that would force all requests to extend handgun purchase permits to be made within the initial 90-day life of the permit, or else be denied.  Current law allows extension of up to 180 days, regardless of when the application for extension is made.  Many municipalities take six months or longer to issue permits.  A permit holder should not be forced to repeat that process merely because he or she did not request an extension during the initial 90-day period.  As long as the permit can never be extended beyond a life of 180 days, the date the extension was applied for should be irrelevant.  Additionally, since a federal criminal background check is performed at the time the permit is used, any concerns that a permit holder might have become a prohibited person (necessitating a new investigation) at some point within the 180 day period have already been addressed.  

 

8)     I oppose adding unreasonable burdens to New Jersey gun dealers, including barring employees from handling guns and gun records, forcing dealers to record firearm acquisitions the same business day (instead of retaining the current reasonable 24 hour time frame), and forcing dealers to keep all guns at the licensed premises unless they have "express permission" to do otherwise. And finally, requiring labels or tags on every firearm containing unnecessary information and presenting a potential danger to gunsmiths working on firearms.  Regulations affecting the core operations of firearms dealers should be crafted with insight and understanding of those operations rather than in a vacuum, so that the intended benefits of those regulations can be achieved without imposing unreasonable and disruptive burdens and requirements.

 

Sincerely,

 

________________________

 

 

 

 

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NJSP are notoriously not only known for crap like this but have no problem issuing just a stated rule made up on the fly with no more than a verbal issuance. People will comply not knowing they don't have to and make everyone miserable. Why? Because they are the NJSP and when they speak, people think it's gospel. Bunch of BS because they don't like being bitch slapped. Just shows you how our state is so fubar..

 

 

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Dont want to make this political, but doesn't Gov office and AG have any ysay in what and how NJSP makes changes ?

 

I think at some point, not sure who when or how ths NJSP was asked to help fine tune the firearms laws and "offer"suggestions as they got introduced because they would know best....and has morphed into what they can now apparently do which is basically bypass the legislative process and re-write them. Absolute corruption of the supposed legislative process but standard sop in NJ .

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NJSP are notoriously not only known for crap like this but have no problem issuing just a stated rule made up on the fly with no more than a verbal issuance. People will comply not knowing they don't have to and make everyone miserable. Why? Because they are the NJSP and when they speak, people think it's gospel. Bunch of BS because they don't like being bitch slapped. Just shows you how our state is so fubar..

 

Sent from my iPhone using Tapatalk

 

 

This isn't talk, these are proposed regulations. If they adopt them, they are law. You don't comply, you get fined or go to jail. If you think they don't have the statutory authority for these regulations, you can sue them from jail for the specific regulation you think is beyond the authority of the statute.

 

Start writing comments. And remember, their responses are pretty much binding in your defense. So the more the merrier unless you are asking them to actually make something worse.

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This isn't talk, these are proposed regulations. If they adopt them, they are law. You don't comply, you get fined or go to jail. If you think they don't have the statutory authority for these regulations, you can sue them from jail for the specific regulation you think is beyond the authority of the statute.

 

Start writing comments. And remember, their responses are pretty much binding in your defense. So the more the merrier unless you are asking them to actually make something worse.

Never said they weren't or wouldn't. And I have wrote them. But they -are- notorious to do things their way without proper legislation to suit their needs. That's all I'm saying.

 

 

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I think at some point, not sure who when or how ths NJSP was asked to help fine tune the firearms laws and "offer"suggestions as they got introduced because they would know best....and has morphed into what they can now apparently do which is basically bypass the legislative process and re-write them. Absolute corruption of the supposed legislative process but standard sop in NJ .

 

 

It's the standard regulatory process. Most laws in NJ and in the US are not written by legislators. Legislators write statutes and establish a regulatory framework, and the assigned regulators write the regulations, which have full weight of law. It's arguably unconstitutional, but it is the way most things are done in this country.

 

Were you all the guys that were saying NJSP can't change the law when this notification of public comment period first came up? Well now you can go explain that to Nappen.

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Never said they weren't or wouldn't. And I have wrote them. But they -are- notorious to do things their way without proper legislation to suit their needs. That's all I'm saying.

 

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PSP tried a few things like that over here (not related to regulations), just making up their own firearm rules. I have no doubt NJSP is worse.

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Why should they be any different than any Sheister politician? If one can get away with it, why can't they. Without any justification, if they say hollow points are more dangerous than zombie rounds because they are green, it's gospel and for the lame, they believe them. But to just try shuffle papers to circumvent rulings or anything else is bs....

 

 

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Can anyone explain the process by which these proposed changes take on the force of law? The legislature says A and Fuentes says B. Then what? Do elected representatives vote on this or are changes agreed upon behind closed doors?

 

Even if these proposals undergo full legislative review (which it appears they don't) who the fluke is Fuentes to be such a pivotal part of the process? Since when do the state police get to propose -- not merely advise on -- actual laws by which individuals can receive mandatory criminal sentences?

 

I sent my email btw, along with additional comments of my own. I also responded to the other frantic call by NJ2AS but left out the bit about 30 days. The way it was presented reminded me of the tasteless joke about Hitler coming back and deciding to kill 10 million Jews and three clowns. 

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This isn't talk, these are proposed regulations. If they adopt them, they are law. You don't comply, you get fined or go to jail. If you think they don't have the statutory authority for these regulations, you can sue them from jail for the specific regulation you think is beyond the authority of the statute.

 

Start writing comments. And remember, their responses are pretty much binding in your defense. So the more the merrier unless you are asking them to actually make something worse.

What does their responses are binding mean? Do they have to respond to every letter/email/call/etc? Someone please elaborate on this part of the process.

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I emailed the NJSP and the Governor -- with some of my own comments added.

 

I just would like to know how some unelected official from the NJSP gets to have a say in NJ's laws?

Because they're not "law's" rather "administrative codes". That's how they get away with it.

 

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We went through all of this when the regs first came up for renewal.

 

They are laws. They are simply not statutes, they are regulations. "Administrative code" is law. It's the same as EPA or DOT regulations. Congress didn't write any of that. They wrote statutes authorizing it. Matter of fact, EPA and DOT didn't write most of their regulations, other people (not Congress) did and they simply adopted them.

 

The process is a regulator (presumably NJSP in this case) is authorized to write regulations under a statute. They write them, and put the proposed regulations out for public comment. The administrative process is that they supposedly respond to all relevant comments and take them into consideration when finalizing the regulations at their own discretion. If they respond "We won't do that" or "You would be OK" then your lawyer can usually get you out of any enforcement that conflicts with a response to comments.

 

NJDEP did one better when the Site Remediation Reform Act passed. They had to get regulations out by law by a certain timeframe. The didn't finish in time to get the proposal and comments period completed, so they just said "Here are interim regulations we are going to enforce anyway. If you have a problem see you in court" (not an exact quote.

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So would it look bad if you already emailed a week or so ago and now wanted to send this?

 

I seriously doubt it. I sent an email/letters on the NJ2AS announcement, and I'll be sending a set on this.

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so these are statutes, or codes, but they're handled like they're law. thus they ARE law. how is it legal that the police can write law? they tell you when you run afoul of the law that they don't write the law, when they DID write the law.

 

so how is it legal that they are allowed to write the law again?

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so these are statutes, or codes, but they're handled like they're law. thus they ARE law. how is it legal that the police can write law? they tell you when you run afoul of the law that they don't write the law, when they DID write the law.

 

so how is it legal that they are allowed to write the law again?

I agree.  The statute is clear on its face, has been held by two appellate courts to prohibit extra forms and information so I fail to see how the NJSP can propose and adopt a regulation inconsisent with the plain language of the statute. 

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