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New AG Directive Addresses Permitting Delays &
Illegal Conditions – Facilitates ANJRPC’s
Permitting StrikeForce to End Permitting Abuse
Second AG Directive Addresses “Reasonably Necessary Deviations” in Firearms Transportation – Acknowledges the Most Common Deviations & Provides General Guidance
AG Also Promulgates Official Regulations for Incremental Improvement in “Justifiable Need” for Right to Carry
The New Jersey Attorney General has followed through on the recommendations of Governor Chris Christie’s 2015 firearms study commission formed pursuant to Executive Order 180, taking the following actions:
1. Issued an Attorney General Directive regarding the outrageous delays and illegal conditions imposed by bureaucrats in the issuance of firearms permits, directing every permitting authority in New Jersey to follow state law mandates, and requiring them to regularly track and report their compliance to the State, and to respond to update inquiries by individual applicants. The Directive also calls for further study of how the permitting process can be streamlined in the future. The Directive will greatly facilitate the mission of ANJRPC’s Permitting StrikeForce to end permitting abuse throughout the state.
2. Issued an Attorney General Directive reducing uncertainty in the meaning of “reasonably necessary deviations” in the transportation of firearms by law-abiding citizens, providing general guidance on the subject as well as specific examples of the most common deviations deemed “reasonably necessary,” such as pickup and discharge of passengers, purchasing food, beverages, fuel, medicine, and other necessary supplies, using a restroom, and contending with an emergency situation.
3. Recently promulgated state police regulations to effect the incremental improvement in the “justifiable need” standard needed to qualify for a carry permit that was recommended by the Governor’s commission.
“We welcome these historic executive actions to make progress on basic issues that have plagued New Jersey’s one million law-abiding gun owners for decades,” said ANJRPC Executive Director Scott Bach. “Honest citizens who choose to exercise their Second Amendment rights should not have to wait months or years for permits, and should not have to live in fear of imprisonment for stopping while travelling to the range.”
“As for New Jersey’s blatantly unconstitutional interference with self-defense through an impossible-to-satisfy carry permit standard,” Bach continued, “gun owners will eventually overturn that abomination, but in the meanwhile we welcome the modest incremental improvement represented by the new rules being promulgated.”
Based on the separation of powers doctrine, executive actions are limited by the New Jersey Constitution, and cannot change laws passed by the legislature or ruled on by the courts. But they can clarify unclear areas of the law not addressed by the courts or the legislature, and take actions limited to the executive branch of government that do not exceed constitutional authority or infringe on the other branches of government. Executive actions that exceed their authority and infringe on the other branches of government are unconstitutional and cannot survive a challenge.
Read Governor Christie’s press release about these historic executive actions here.
While a detailed review of these executive actions is currently under way, following is our preliminary analysis:
ENDING PERMITTING ABUSES
Garden State gun owners have suffered longstanding, widespread abuses in the issuance of firearms permits, including outrageous delays beyond the legally mandated 30-day deadline, and the imposition of unlawful conditions on the issuance of permits, like requiring employer consent, spousal notification, and dozens of other unauthorized requirements.
ANJRPC’s Permitting StrikeForce was formed in 2014 to systematically address these issues town-by-town among New Jersey’s 565 municipalities and police barracks that issue permits. Significant progress has been made, and we are currently engaged in discussions with approximately 200 towns, but the new Attorney General Directive on permitting will greatly facilitate the process.
The Attorney General directive requires permitting authorities to follow the mandates of state law, to regularly track and report their compliance to the State, and to respond to update inquiries by individual applicants. The Directive also calls for further study of how the permitting process can be streamlined in the future.
“We expect the new Attorney General Directive on permitting to turbocharge ANJRPC’s Permitting StrikeForce initiative,” said attorney Daniel Schmutter, Esq., leader of the project. “There is no excuse for any failure to comply with the clear requirements of state law, and the new AG Directive enables us to become much more aggressive with non-compliant towns.”
CLARIFYING “REASONABLE DEVIATIONS”
IN FIREARMS TRANSPORTATION
State statute generally requires that transportation of certain firearms be “direct” between authorized points in order for possession to be legal, except for “reasonably necessary deviations” – a term not defined by state law.
For decades, honest gun owners have faced the threat of prosecution for unlawful handgun possession (a crime carrying up to ten years in prison) if a stop between authorized points was not deemed a “reasonably necessary deviation” in transportation. Many law-abiding citizens have been turned into criminals by this absurd law, and there is a patchwork of conflicting interpretations from town to town regarding what is considered “reasonable.”
The new Attorney General directive provides statewide guidance on the issue, and identifies specific examples of the most common deviations that should be deemed “reasonably necessary,” including pickup and discharge of passengers, purchasing food, beverages, fuel, medicine, and other needed supplies, using a restroom, and contending with an emergency situation. The general guidelines specify that the more limited in duration and distance that transportation deviations are, the more likely they are to be found reasonable.
Again, the executive branch does not have the power to ignore or rewrite state law on transportation of firearms (it can only interpret existing law, in a manner consistent with statutory language and court decisions). While New Jersey still has a very long way to go in recognizing the right to transport firearms under the Second Amendment, the new directive adds more clarity and certainty to an area that has placed gun owners in legal jeopardy for decades, and represents an incremental improvement.
AN INCREMENTAL IMPROVEMENT IN “JUSTIFIABLE NEED”
FOR HANDGUN CARRY PERMITS
The right to defend yourself with a firearm outside the home, otherwise known as right to carry, has long been disparaged by the Garden State, and it is nearly impossible for gun owners to qualify for a carry permit due to the state’s absurdly restrictive and impossible-to-meet “justifiable need” standard, which currently requires proof of actual threats or prior attacks, among other things. ANJRPC challenged that standard in a significant lawsuit several years ago, but unfortunately the U.S. Supreme Court declined to hear the case. With the recent passing of conservative pro-gun Justice Antonin Scalia, the outcome of other pending carry law challenges heading toward the U.S. Supreme from other states is uncertain.
As noted above, executive powers are limited by the New Jersey Constitution, and the executive branch cannot simply rewrite laws passed by the legislature or ruled on by the courts, based on the separation of powers doctrine. The executive branch is constrained by state law and court opinions interpreting justifiable need and does not have the authority to simply ignore the other branches of government and rewrite the standard, much to gun owners’ disappointment. However, incremental improvement of the standard is possible and enforceable if it does not conflict with the existing statute interpretation.
The recent State Police rules promulgation implementing the recommendation of the Governor’s commission on justifiable need is the first step in a technical, lengthy process. Following the promulgation, there is a period for public comment, an opportunity for amendment of the proposed rules, and eventual finalization of the rule.
According to gun rights guru and ANJRPC legal affairs chair Evan Nappen, Esq., "The Governor’s recommendation would incrementally improve justifiable need by allowing the demonstration of urgent necessity to be met by 'serious threats', as opposed to just 'specific threats and previous attacks.' It further adds a standard of reasonableness to the requirement that the threat cannot be avoided by means other than carrying a handgun. It opens the door to many qualified individuals getting a carry permit who otherwise would be denied." For an in-depth discussion of justifiable need and how the Governor’s recommendation would make an incremental improvement, listen to this extensive interview with ANJRPC attorney Daniel Schmutter, Esq.
ANJRPC President and national pistol champion Kathy Chatterton commented, “New Jersey’s current unacceptable ‘justifiable need’ standard has an especially harsh impact on women. Women frequently become the targets of stalkers and vengeful ex-husbands or boyfriends. New Jersey must join the 43 other states that recognize concealed carry as important to a woman’s right to protect herself when facing this kind of danger. Self-protection outside the home is everyone’s right – including women!”
While ANJRPC is committed to fully restoring the right to carry and ending the Garden State’s medieval mistreatment of gun owners, even a modest incremental improvement in a standard destined to be overturned is welcome in the meanwhile.
Thursday May 14, 2015: In a published decision affecting all New Jersey municipalities, the New Jersey Appellate Division today confirmed that New Jersey permitting authorities may NOT require completion of additional forms for firearms permit applications beyond the forms mandated by state law.
"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. The Evan F. Nappen Law Firm is to be commended on bringing this case and obtaining this extremely significant decision."
The number one complaint ANJRPC receives from law-abiding gun owners relates to local permitting forms and requirements invented by municipalities, beyond what is clearly specified under state law, often resulting in improper delays and denials. The mission of ANJRPC's Permitting StrikeForce™ is to address these problems in each and every one of New Jerseys 565 municipalities. Today's decision will make it much easier to either obtain voluntary compliance from these towns, or to employ litigation against those that refuse.
The case was brought by the law firm of Evan F. Nappen, and was briefed and argued by Louis Nappen. See the Nappen Firm's press release for additional details.
Towns That Won't See the Light
Are Going to Feel the Heat!
ANJRPC has launched Phase 2 - the Crackdown Phase - of its Permitting StrikeForce™ program, a comprehensive statewide initiative to address firearms permitting abuses throughout the Garden State. The program is aimed at ending, once and for all, the extensive delays, unauthorized conditions, and other widespread abuses plaguing the issuance of firearms ID cards and handgun purchase permits to law-abiding citizens throughout New Jersey.
In StrikeForce™ Phase 1, launched last year, we did a sweep of the entire state to create a comprehensive database chronicling and detailing the specific permitting abuses occurring throughout New Jersey's 565 municipalities and other permitting authorities. Hundreds of gun owners participated in Phase 1, providing us with evidence of their towns' abuses.
Our attorneys conducted their own independent statewide survey, and all of the data has been crunched, organized, and analyzed. For the first time in history, we now have the full picture of where and what the problems are, and it isn't pretty. From absurdly long delays, to blatantly unlawful application conditions, to outrageous privacy violations, we have identified the worst offenders.
"Phase 2 of the StrikeForce program is the start of the crackdown phase," said ANJRPC Executive Director Scott Bach. "We are serving legal notices on nearly 150 municipalities, informing them of the law, their obligations, and their specific violations in no uncertain terms. We expect that many towns will comply voluntarily once the clear and indisputable law has been explained to them, but the towns that won't see the light are going to feel the heat," said Bach.
During Phase 2, ANJRPC's counsel will be working to achieve voluntary compliance in as many towns as possible, as rapidly as possible. For those permitting authorities that simply refuse to comply, ANJRPC will embark on Phase 3 - the "hammer" phase, in which ANJRPC will deploy a number of the most powerful tools at its disposal, including litigation, to force compliance with the law.
"Permitting authorities need to understand that we have entered a new era after the groundbreaking U.S. Supreme Court decisions in the Heller and McDonald cases," said Bach. "It is unlawful to interfere with Second Amendment rights by abusing the permitting process, and ANJRPC will spare no effort or expense to stop further abuse."
Many towns impose outrageous, unauthorized conditions on issuance of purchase permits, such as employer notification, spousal consent, disclosure of all household member names, and passing a written exam. Many municipalities also ignore state law requiring application decisions within 30 days; some applicants wait over a year before getting a decision. Some towns also ration handgun purchase permits at the rate of one per month, under the mistaken belief that New Jersey's "one gun a month" law applies to issuance of permits themselves.
ANJRPC first began addressing permitting issues on a case-by-case basis in 2009. Recent legal developments made it viable to launch ANJRPC'S Permitting StrikeForce™ last year as the first-ever comprehensive compliance sweep over the entire state. The program is synergistic and complementary with the efforts of other organizations on permitting issues.
ANJRPC's Permitting StrikeForce™ needs YOU! Although we have now moved into Phase 2, we still need to know about permitting abuses you may be suffering, as well as improvements in the permitting process that result from StrikeForce efforts. Please tell us about unauthorized conditions, delays, permit rationing, or any other violations, or improvements, in your town. Your identity will be protected, but your input will help us get the job done! Please email firstname.lastname@example.org or leave a message at (973) 697-9270. Please include as much detail as possible.
THE NJ ATTORNEY GENERAL
FINDS SMART GUN LAW
The New Jersey Attorney General has issued a legally-mandated report to the Governor and the Legislature finding that the Armatix iP1 handgun does not qualify as a “smart gun” under New Jersey’s 2002 smart gun law.
The report includes the following statement:
After careful consideration of the iP1's design, we have determined that it does not satisfy the statutory definition because, as a matter of design, the pistol may be fired by a person who is not an authorized or recognized user. That is, as long as the pistol is situated within 10 inches of the enabling wristwatch, it may be fired by anyone – the authorized user or any other person who is able to pull the trigger. While the system does incorporate a PIN code or a timer to disable the handgun, when the weapon is enabled, there is nothing in the technology which automatically limits its operational use so that it may only be fired by an authorized or recognized user (so long as the pistol is within a 10-inch proximity to the wristwatch component).
Situations may readily be envisioned in which an unauthorized individual gains access to the pistol in close enough proximity to the wristwatch component (by either maintaining possession of the pistol within 10 inches of the authorized user’s wrist on which he or she is wearing the watch, or by forcibly taking possession of the wristwatch), and therefore would be able to fire the weapon, despite the limiting technology. Accordingly, we are unable to conclude that the iP1 design meets all the elements of New Jersey’s statutory definition of a personalized handgun under N.J.S.2C:39-1(dd), and therefore its availability for retail sales purposes will not trigger the operation of N.J.S.2C:58-2.4 (requiring the promulgation of a list of personalized handguns) and N.J.S.2C:58-2.5 (prohibiting the sale of non-personalized handguns).
The report was likely issued in connection with pending litigation in which the Brady Center has tried to force the Attorney General to issue a report that would trigger New Jersey’s smart gun law by finding that the Armatix gun satisfied the law.
“New Jersey’s smart-gun law is a dumb as it gets,” said ANJRPC Executive Director Scott Bach. “It forces you to use an unproven technology to defend your life, and then exempts the state from liability when the gun goes ‘click’ instead of ‘bang’. If it’s such a great idea, then law enforcement shouldn’t be exempt, and the free market should be able to determine its viability. This is a welcome finding by the Attorney General.”
Read the Attorney General’s report here.
GOVERNOR CHRISTIE VETOES
GUN BAN / MAG BAN!
July 2, 2014: Governor Christie vetoed A2006 / S993, legislation that would have banned
firearms magazines larger than 10 rounds and would have banned an entire class of
popular .22 caliber semi-automatic rifles. The veto marks the end of the road for this
legislation for the 2014-2015 session.
"After months of intense battle over this misguided legislation that won't stop another
crime or prevent another tragedy, we are grateful that Governor Christie has heard the
voice of the outdoor community and ended the discussion," said ANJRPC Executive
Director Scott Bach. "The Governor clearly recognizes the difference between legislation
that punishes violent criminals vs. legislation that targets the rights of law-abiding
PLEASE THANK GOVERNOR CHRISTIE TODAY!
Please thank Governor Christie today for his veto of A2006 / S993. You can call the
Governor's office at 609-292-6000, write him at P.O. Box 001, Trenton, N.J. 08625, or
send an email using the online contact form (select "law and public safety" from the
drop down menu, then pick any sub-topic).And thank YOU for weathering this
months-long storm of attacks on gun owners along with us. It is because of YOUR actions, YOUR calls and letters, YOUR attendance at hearings, and YOUR refusal to give up no matter what the odds, that today's outcome was possible.
Although today's action marks the end of a long and very arduous battle, the fight is far
from over. Lawmakers will be back after the November elections, and will continue their
relentless attacks on legal gun ownership - and it will be up to gun owners to continue to
Please watch for future alerts and updates!
Donations can be sent to:
Scott Bach, PO Box 651, Newfoundland, NJ 07435
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