On February 16, Assemblymen R. Bruce Land and Bob Andrzejczak (both of District 1 in Atlantic, Cape May, and Cumberland Counties) introduced a bill into the Assembly, No. 2955, which they’ve entitled the “Citizens’ Protection Act.” The bill provides amendments that would make it realistic for a law-abiding individual to obtain a carry permit in New Jersey. Because the legislation is new and the issues important, at the end of the post, you’ll find links to a map of New Jersey’s Assembly districts and a list of members of the Assembly and their contact information.
New Jersey is notorious for having some of the strictest firearms laws in the country. Perhaps the most public aspect of this has been the “justifiable need” provision in the application process to obtain a permit to carry a handgun. As the law currently stands, the individual seeking to obtain a permit must demonstrate justifiable need, which has been defined by the state courts to mean 1) “specific threats or previous attacks” that 2) “demonstrat[e] a special danger to the applicant’s life that cannot be avoided by other means.” In re Pantano, 60 A.3d 507, 510 (NJ Super. 2013) (Emphasis added). Thus, to get a carry permit in New Jersey today, you must have already been threatened or attacked and a carry permit must be the only way you can protect yourself.
While the law holds no liability against municipalities for failure to protect an individual, most police officers will tell you that they view it as their duty to protect individuals against crime; while there are some notable examples to the contrary, this is true in most cases. However, as rightly noted by many firearms experts, life-threatening situations such as muggings occur very quickly and often there is no chance to even call police, much less time to wait for their arrival, no matter how quick it may be. Likewise, mass shootings often occur quickly and, by design, as a surprise to the victims. Thus, the bulk of the damage is done before police have an ability to arrive and assess and control the situation.
Despite the serious constitutional questions as to New Jersey’s firearms permitting statutes, the federal courts have been content to let them stand. In a very recent case, the Third Circuit Court of Appeals held that it could not say with certainty that there was any right to carry a firearm outside the home inherent in the Second Amendment. See Drake v. Filko, 724 F.3d 426 (3d Cir. 2013). In Drake, the plaintiff had been approved for a carry permit by the local police chief, but when he applied to the Superior Court, the State Police objected to the permit. The Superior Court agreed with the State Police and denied the permit. That decision was appealed to the Third Circuit, which then held that the U.S. Supreme Court precedents – D.C. v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010) – applied strictly to the home (which is a very, very strict and selective reading of those cases). The plaintiffs then appealed the Third Circuit’s decision to the U.S. Supreme Court, which ultimately declined the hear it. With the death of Justice Antonin Scalia, is remains unlikely that any substantial changes to firearms laws will occur in the near future.
All of which makes this bill so important for individuals who desire to carry firearms. Assemblymen Land and Andrzejczak begin the bill with a series of whereas clauses, in which they accurately state that the courts have found that the police have no affirmative duty (either federally or under state law) to protect an individual citizen. See Wuethrich v. Delia, 382 A.2d 929 (N.J. Super. 1978) (“Municipalities are expressly immunized from tort liability for the failure to provide police protection or the failure to provide sufficient police protection”). (It should be noted that under Federal procedure, a plaintiff sues the municipality in police force liability cases, rather than the police force, itself.) In addition, the Assemblymen spell out the New Jersey constitutional provisions under which citizens have a liberty interest in self-defense.
This bill removes “justifiable need” from the statutory language by deleting the provision from N.J.S.A. 2C:58-4(c) entirely. By removing the justifiable need requirement, the burden would no longer be on the individual seeking the permit, but on the State if it intended to deny the application. Because Pantano interpreted the justifiable need statutory language, that holding would, in essence, be statutorily overruled.
In tandem with justifiable need, the proposed legislation removes the requirement that an applicant take an approved application before the Superior Court. Currently, under N.J.S.A. 2C:58-4(d), the Superior Court may then reject the application (even though it has been approved by the local police chief) if the applicant’s character is found to be in question. Indeed, many of the precedential cases on New Jersey’s firearms permitting scheme involve denials by the Superior Court after initial approvals at the local level. The Citizens’ Protection Act would completely remove this step in the application process.
Firearms owners will also be excited to learn that the bill would explicitly prohibit the State from recording handgun serial numbers and descriptions when granting the permit, nor would it allow the Superintendent of the New Jersey State Police to include additional provisions as part of the application process.
The new application process proposed by the bill would be as follows:
- The individual must provide 2 frontal photographs taken within 30 days of the application;
- Take a training and safety course, evidenced by a certificate of completion attached to the application;
- Verification by the applicant that the information provided is accurate (which replaces the requirement of witnesses to the signature).
- $20 application fee.
The permit would also be valid for 5 years, rather than 2, and place the burden on the State to demonstrate that the individual is not eligible, rather than requiring the individual to prove to the State that he or she does not run afoul of any of the eligibility requirements. Anyone who is a U.S. citizen 21 years or older, has not been convicted of a felony (including certain juvenile delinquencies); has not been convicted of a domestic violence misdemeanor; has not been convicted of a drug crime in the 5 years prior to applying; does not have a physical or mental health defect that prevents them from safely possessing the firearm*; is not subject to a restraining order for domestic abuse; is not on the Terror Watchlist; and has not been an alcoholic or addict within the same time period, would be eligible, assuming they pass an 8 hour training course.
Other provisions of note include the amendment of N.J.S.A. 2C:39-2(b), which provides that an individual found to be in possession of a firearm in a vehicle in New Jersey “shall be presumed that he does not possess such a license . . . until he establishes the contrary.” This means that the law currently grants a legal presumption of the presence of an element of guilt to the State of New Jersey in certain criminal cases. This bill would delete this language entirely.
Then the bill tackles the carry permit scheme. It begins by deleting N.J.S.A 2C:58-3(c)(5), which prohibits the issuance of a carry permit to someone in cases where it is considered to be against the public’s health or safety. Given the other reasons why one may be denied a permit, this particular provision is not only superfluous, but dangerously vague, in that it serves as a fallback provision upon which to deny someone otherwise eligible. The bill also removes any special provisions for armored car personnel, applying a uniform standard to all applicants.
If you are interested in the constitutional right of citizens to defend themselves against threats, wherever those threats might occur; disappointed (to put it mildly) in the current state of New Jersey’s firearms statutes; or want to get a carry permit in New Jersey for any other legal reason, this bill would greatly increase your ability to do so.
Thompson Law Offices encourages the participation of the individual in both the legal and political system. If you wish to get involved, you will find links to a map of the Assembly districts and contact information for your representatives below.
* If you have been involuntarily committed for mental health evaluation in New Jersey or Pennsylvania, you are invited contact our office for a free consultation. You may have the ability to expunge the commitment. An attorney will be able to advise you as to the effect an expungement may have on your ability to possess or carry a firearm.