Police departments can not add their own requirements, court rules

[Polak 3]

From NJ.com

 

Police can't add requirements to state gun permit applications, appeals court rules

 

NEW BRUNSWICK -- An appeals court has ruled that local police departments can't add their own requirements to applications for gun permits.

 

In a decision out of East Brunswick, the three-judge panel said state law requires that the superintendent of the State Police create the applications that must be used throughout the state to apply for handgun permits.

 

"East Brunswick may not burden an applicant with redundant requirements any more than it may impose conditions or requirements not authorized by the legislature or the superintendent of the division of the State Police," the eight-page decision released Thursday said.

 

The case arises from an application made to the East Brunswick Police Department by a resident, only identified by the initials Z.K., for a handgun permit.

 

The published decision said when Z.K. returned the application police gave him, he had not filled out a form required by police entitled, "Certification of Juvenile Record.

 

"The police department rejected his application as "incomplete" when he told officers he did not intend to fill out the additional form because it was a duplicate of a question on the original application the asked for the same information.Z.K. requested a hearing in Superior Court and, after the hearing, a trial judge upheld East Brunswick police even though the judge agreed the form duplicated information already provided on the state application.

 

The East Brunswick resident appealed the judge's decision to the Appellate Division of Superior Court.The appellate judges ordered the East Brunswick police chief to complete his investigation into Z.K.'s application and, "unless good cause for the denial," is found, "grant the permit and the identification card."

 

Frank Asken, who is director of Rutgers Law School's Constitutional Rights Clinic, said he believes the decision will have "limited impact," because "state law occupies the field."

[Kevin125 4,772]

Interesting. Anyone know what "state law occupies the field" means in this context? I think I get it that it probably means state law is pre-eminent.

 

To which I say..... Ok. So why aren't PD's required to follow the State law? So to get PDs to not ask for illegal forms, or request info from employers....we have to go to court every time?

[PK90 3,570]

Didn't a Judge already rule on this last year?

[Pizza Bob 1,488]

Didn't a Judge already rule on this last year?

 

Yes, in Jersey City.

 

I'm just not sure how a legal precedent is set. Apparently the one in JC did not, maybe this one does?

 

Maybe I'm just simple-minded to think that the law is the law and you shouldn't have to take the police (of all people) to court to have the law upheld. 

 

Adios,

 

Pizza Bob

[bhunted 887]

This was all part of Operation Strike Force, Scott Bach and Evan Nappen...

Screw what NJ.com says. Next phase is go after all PDs that will not comply voluntarily... Say thanks to them guys and all whom inputed their data for them to fly by.

http://www.anjrpc.org/

 

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[Kevin125 4,772]

I would bet that the East Brunswick PD will not change their procedure. The only thing that will cause them to change is a large fine, compensation for the victim and a firing of a Chief.

[siderman 1,137]

Sooner or later a courts decision has to become the law of the land but apperently it hasnt reached that judicial level yet, Jersey City is appealing the same ruling against them. Business as usuall.

[Polak 3]

Didn't a Judge already rule on this last year?

Probably expires after a year

[maintenanceguy 510]

I would bet that the East Brunswick PD will not change their procedure. The only thing that will cause them to change is a large fine, compensation for the victim and a firing of a Chief.

 

Public servants who violate a civil right should face criminal prosecution.  Unfortunately, it's the fox guarding the hen's civil rights.

[siderman 1,137]

This is a link to the ANJRPC announcement. At the bottem of it is a link to a release by Evan Nappon about it. Note how he says it is binding statewide because this case was "published" and thats why the Jersey City and Paterson cases were not. IDK what that means but read it for yourself.

 

https://c.ymcdn.com/sites/anjrpc.site-ym.com/resource/resmgr/Alerts/05-14-2015_No_Additional_For.pdf

[DeerSlayer 241]

Yes, in Jersey City.

 

I'm just not sure how a legal precedent is set. Apparently the one in JC did not, maybe this one does?

 

Maybe I'm just simple-minded to think that the law is the law and you shouldn't have to take the police (of all people) to court to have the law upheld.

 

Adios,

 

Pizza Bob

Also in Paterson!

[mipafox 438]

Great work by Z.K. to stand up to this and all the others involved!

 

 

Yes, in Jersey City.

 

I'm just not sure how a legal precedent is set. Apparently the one in JC did not, maybe this one does?

 

My understanding has always been that initial court rulings often do not set sweeping precedents while appealed court rulings do for their jurisdiction. This one was certainly appealed but not sure of the jurisdiction of this court of appeals - I would assume it is the entire state but not sure.

[Kevin125 4,772]

Public servants who violate a civil right should face criminal prosecution.  Unfortunately, it's the fox guarding the hen's civil rights.

 

Agreed.  and Agreed.  Pretty damned annoying.

[Kevin125 4,772]

This seems to say Nappen plans to use it when his firms goes after other munipalities.  Which says to me that it may not stop the munipalities from doing it, but it will help decides suits that ANJRPC brings against the towns.  Which seems like a good thing. But not exactly the Holy Grail.

 

"This decision represents a major breakthrough that will facilitate the mission of  ANJRPC's Permitting  StrikeForce"  said  ANJRPC  Executive  Director Scott Bach. "For the first time, a New Jersey Appellate Court has published a decision confirming that local permitting authorities may not impose additional forms  as  a  condition  of  issuing  firearms  permits  and  licenses.

[Old Glock guy 1,127]

Maybe I'm just simple-minded to think that the law is the law and you shouldn't have to take the police (of all people) to court to have the law upheld. 

 

 

My thoughts exactly.  Which is why I find it hard to get excited about this "victory" for our side.

[ChrisJM981 924]

I'm curious who is behind the the permitting schemes. Is it the Chiefs, or the mayors?

[DeerSlayer 241]

I'm curious who is behind the the permitting schemes. Is it the Chiefs, or the mayors?

Probably depends on the municipality. In Jersey City it's probably both, but definitely the mayor. Fullop pretty much said he dosent care what the law says, his city will do what they want. Hope that really pisses off a judge and he's made an example of.

[diamondd817 826]

Still does nothing to change any gun laws in this State. I'm not even sure its a step in the right direction. To me it seems like, well, were willing to accept all this crap as long as you don't go too overboard.

 

You know how everyone talks about "feel good" legislation, well this is just a "feel good" ruling.

[revenger 473]

this only lets the enemy know what actions they will need to take when they start to "overhaul" our already unconstitutional laws.    Now when the next SP Colonel takes over he will be under orders to tighten up all the laws within his power and the legislature and governor will nail the coffin shut.   NJ's only relief will be when they go too far and the scotus is forced to rule on this probably sometime in the next decade or if the next president (if a constitutional supporting candidate is elected) and the congress pass laws that uphold and defend the constitution.   Thanks to Chris Christie and his three ring circus we will not see a republican elected to any office in NJ in our lifetimes.

[siderman 1,137]

This is actually the perfect instance for CC to back up his claim about trying to fix the 2A here w/o the demorats impeding his so-called efforts. All the hard work is already done via 3 court decisions (at least) in major citys. he just needs to tell his AG/NJSP to finalize this stuff with a written memo to all the states juridictions. Sounds easy enough but I doubt he's even aware of whats going on here.

[revenger 473]

Chris Christie had his opportunity to correct many NJ gun laws when the Drake case was working its way through the courts.   He could have had the AG's office come into compliance with the US Constitution during this case and admit that NJ's laws violate the Constitution instead he ordered them to fight against it contrary to the oaths they took.   

[mipafox 438]

this only lets the enemy know what actions they will need to take when they start to "overhaul" our already unconstitutional laws.    Now when the next SP Colonel takes over he will be under orders to tighten up all the laws within his power and the legislature and governor will nail the coffin shut.   NJ's only relief will be when they go too far and the scotus is forced to rule on this probably sometime in the next decade or if the next president (if a constitutional supporting candidate is elected) and the congress pass laws that uphold and defend the constitution.   Thanks to Chris Christie and his three ring circus we will not see a republican elected to any office in NJ in our lifetimes.

It's a good thing. Some times you need to slap the government down to get them to behave, it's simply a fact of life. From a period of about 8 to 15 years ago people would occasionally (albeit rarely) be detained by PA police because they were openly carrying a firearm. We put an end to that with lawsuits and instituted revisions to their departments policies and their annual training statewide. The problem is over. We did the same thing in Philly, and their problems have been ameliorated, but they get a little more leeway under state law due to being a large city unfortunately (they can check for a license).

 

Regarding licensing, we got Philly to drop their extralegal requirements. They would not accept applications for LTCF without a whole lot of extra information that was not required by the state form. The only way you could fight this was to bring it to a Philly judge. Guess what? The Philly judges always told Philly to process the applications, so there was never a chance to bring a lost case to an appeals court for a binding precedence. Sound at least a little familiar? Well, Prince managed to go after them and largely got them squared away.

 

The legislative process is not the only fight we have.

[Princetonian58 53]

Because this case was published, it becomes binding on all trial courts in the State and, by extension, upon all police departments/chiefs.  The Jersey City case was not publiished and as a result, a trial court hearing a denial of a FPID card or P2P could, if he/she desired, opt not to follow it.  The panel of appellate judges hearing and deciding a case decides whether to direct whether to have their opinion published.  So, then, this particular panel of judges wanted to make their decision stick and extend beyond the particular facts of this case. 

 

I also liked the last part of the decision where the court ordered the chief to issue the FPID card in 30 days of the opinion just as the statute requires, assuming no disqualifier turns up in the investigation.

[jtd771 18]

I thought I remember hearing on GFH that the goal was to get a decision like this and then to use it to go after any chiefs who continued to violate the law.  The idea was to go after them in a way that it would bring charges against them and thus they would loose their jobs.  I guarantee if you had one chief get a spanking like that all 500 others would immediately come into compliance.  Not one of them is going to risk their cushy job or pension.

[siderman 1,137]

Because this case was published, it becomes binding on all trial courts in the State and, by extension, upon all police departments/chiefs.  The Jersey City case was not publiished and as a result, a trial court hearing a denial of a FPID card or P2P could, if he/she desired, opt not to follow it.  The panel of appellate judges hearing and deciding a case decides whether to direct whether to have their opinion published.  So, then, this particular panel of judges wanted to make their decision stick and extend beyond the particular facts of this case. 

 

I also liked the last part of the decision where the court ordered the chief to issue the FPID card in 30 days of the opinion just as the statute requires, assuming no disqualifier turns up in the investigation.

Thankyou for that info. but this whole publishing thing still odd. Where does it get published to that makes it a binding decision (law?) and why would other simular court decisions not be published? Seems like arbitrary law enforcement w/o the publishing.

[mipafox 438]

 

Because this case was published, it becomes binding on all trial courts in the State and, by extension, upon all police departments/chiefs.  The Jersey City case was not publiished and as a result, a trial court hearing a denial of a FPID card or P2P could, if he/she desired, opt not to follow it.  The panel of appellate judges hearing and deciding a case decides whether to direct whether to have their opinion published.  So, then, this particular panel of judges wanted to make their decision stick and extend beyond the particular facts of this case.

 

I would be happy to be corrected, but I think you are focusing on the wrong part of the statement. It's not because this court decided to publish it and the other court did not. It's because this court was a court of appeals and appeals rulings are generally binding within a jurisdictional while lower court rulings are not.

[siderman 1,137]

 

I would be happy to be corrected, but I think you are focusing on the wrong part of the statement. It's not because this court decided to publish it and the other court did not. It's because this court was a court of appeals and appeals rulings are generally binding within a jurisdictional while lower court rulings are not.

 

not sure about correcting you but the below excerpt from Nappons release implies that the "publishing" is the binding qualifier but other than this IDK....

 

 

 

 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.

[Pizza Bob 1,488]

I thought I remember hearing on GFH that the goal was to get a decision like this and then to use it to go after any chiefs who continued to violate the law.  The idea was to go after them in a way that it would bring charges against them and thus they would loose their jobs.  I guarantee if you had one chief get a spanking like that all 500 others would immediately come into compliance.  Not one of them is going to risk their cushy job or pension.

 

Since it has become a published decision, I would think that CLEO's that choose to ignore it would be guilty of Official Misconduct.

[mipafox 438]

not sure about correcting you but the below excerpt from Nappons release implies that the "publishing" is the binding qualifier but other than this IDK....

 

 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.

OK, seems like you are correct, thanks. It's either that or BOTH. Ordinary lower courts cannot establish precedent as far as I know. Don't know where the other case was ruled, and I didn't know that appeals courts had a decision to make of whether or not it is binding, so thank you!

 

I'll have to keep an eye out for that. Never heard of it.

[bhunted 887]

Since it has become a published decision, I would think that CLEO's that choose to ignore it would be guilty of Official Misconduct.

I hope that makes a difference because the AG can give a ratz arse. When I filed an Official Misconduct report to CC, (this was per Frank Fiamingo's instructions), CC forwarded it to the AG... The AG had a heart attack and was planing to pull a full internal investigation on my dept.

 

The Asst AG actually called me freaked. He wanted to know where this was all coming from. He said the term Official Misconduct was a criminal investigation. When I explained to him it was and this had nothing to do with my dept., I could actually here him wipe the sweat from his brow. A 40 min. bs session on the phone after we both calmed down, it went no where. He said you cannot file an Official Misconduct charge because it was a civil matter or some crap. I had to call my detective in case it went the wrong way to explain it wasn't filed against them, but the Passaic County Mental Health dept which at the time was holding reports back for months. This is the crap we are dealt with.

 

 

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