2021 New Jersey Second Amendment Litigation Roundup

2021 New Jersey Second Amendment Litigation Roundup ~ We’re Coming For You NJ

New Jersey – -(AmmoLand.com)- There have been all kinds of activities throughout the country in the way of litigation to return constitutional rights to the people. In New Jersey, one of the strongholds of squishing freedom, there actually is a lot going on.

Oftentimes people read about a case, get excited, and move on. The wheels of justice are so slow that it’s easy to forget what irons we have in the fire. With 2021 more than halfway through, it’s a good time to do a recap, so you know what to keep your eyes peeled for.

Some Quick Information on New jersey Gun Possession:

New Jersey operates under a “may issue” carry permitting scheme, which amounts to “no issue”. No issue comes into play because it’s impossible for most citizens to fulfill the “justifiable need” standard when writing their letter of need during the application process. Firearms purchaser identification cards are essentially “shall issue”, although there is room for case-by-case determinations (abuse) by the issuing authority.

To further contort things, New Jersey’s law concerning firearm possession reads:

2C:39-5 b & c Unlawful possession of weapons.:

“Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58-4, is guilty of a crime of the third degree

Any person who knowingly has in his possession any rifle or shotgun without having first obtained a firearms purchaser identification card in accordance with the provisions of N.J.S.2C:58-3, is guilty of a crime of the third degree.”

Firearm possession in the state when not having a permit to carry, in the case of handguns, and firearms purchaser identification card, in the case of long guns, is achieved through an exemption (Emphasis added to “through exemption”. Exemptions can be viewed HERE).

Carry Cases & Permitting

Recent history…

Carry is always a big issue that we continue to tackle. After last year’s letdown with the mooting of NYSRPA v. New York by the Supreme Court of The United States, many people were feeling down. While NYSRPA did not deal with carry, it would have possibly loosened some transportation/possession restrictions in the Garden State. The case also had the potential of demanding Strict Scrutiny by the lower courts when dealing with a 2A case. Having Strict Scrutiny on our side, alone, would help put a lot of this nonsense to rest.

Further insult to injury, two New Jersey cases dealing specifically with carry were denied certiorari with the Supreme Court of The United States in 2020, Rogers v. Grewal and Cheeseman v. Polillo. Not all was for naught though. Some very compelling information was presented in these cases and amicus briefs. Some recent history:

In Rogers, filed December 2018 by attorney Daniel Schmutter, on behalf of Rogers and the Association of New Jersey Rifle and Pistol Clubs, a very important piece of argumentation was brought up:

And in Heller, this Court held that the government lacks “the power to decide on a case-by-case basis whether the right [to bear arms] is really worth insisting upon.” But the Third Circuit allowed New Jersey to do precisely that by reserving for itself the prerogative to determine on a case-by-case basis whether a citizen has a sufficiently compelling reason to exercise his or her right to carry a firearm.

Because “[t]he very enumeration of the right takes out of the hands of government— even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon,” wholesale infringements upon the Amendment’s “core protection” must be held unconstitutional categorically, not “subjected to a freestanding ‘interest-balancing’ approach.”

Here Schmutter leans on Heller in pointing out that the matter of constitutional rights cannot be left in the hands of a bureaucrat, whether judicial or executive, to use their opinion. It must be a universal quantifiable standard.

In Cheeseman, filed June of 2019 by attorney David D. Jensen, the case-by-case “interest-balance” argument was also brought up. Jensen argued:

Another consideration that weighs in favor of granting the Petition in this case is the manner in which New Jersey’s “need” standard runs counter to this Court’s rejection of “case-by-case” determinations in Heller.

In an amicus brief filed by the Coalition of New Jersey Firearm Owners, presented by the all-star team of attorneys Alan Beck and Stephen D.Stamboulieh, case-by-case determinations were cited. More historical information was also brought to light concerning New Jersey’s handling of the law. In the petition Beck presented:

Mathematically worse, URGENT NECESSITY did not show up in the Administrative Code until twenty years after Siccardi in 1991. Not as a rule of the Attorney General that followed the “Administrative Procedure Act,” but as a direct result of the 1990 New Jersey Supreme decision in Preis.

The lack of adherence to the Administrative Procedures Act not only casts doubt on any claim by the State that their regulation is “presumptively lawful,” but this twenty-year timeline debunks any “longstanding” claim as well.

This bit of information presented in the petition Beck filed really shows how the “justifiable need” provision of the law, in order to get a carry permit, is an interest balance. Urgent necessity is a matter of opinion. Moreover, that the adding of “urgent necessity” to the code seemingly just “occurred”. Essentially it was implemented against New Jersey law. Governor Phil Murphy signed a law to make the statute match the code defining “justifiable need”.

In Justice Thomas’s dissent on Rogers being denied cert he explicitly addresses the interest balance approach:

But the application of the test adopted by the courts of appeals has devolved into just that In fact, at least one scholar has contended that this interest-balancing approach has ultimately carried the day, as the lower courts systematically ignore the Court’s actual holding in Heller.

Now to the cases…

Present-day, we have several cases filed concerning the subject of carry of a firearm in public for self-defense in New Jersey. The fruits of Schmutter, Jensen, and Beck’s labors in their respective filings did not spoil. Their work is available for all to see, learn from, cite, and use. Just like any court filing, it’s there for the public. Many of the same arguments are prevalent in today’s cases.

On April 2, 2021, Russell v. New Jersey was filed at the US Supreme Court and we’re waiting to hear if it’s granted or denied cert. The case was filed by the esteemed hard-hitting law firm of Evan Nappen with Louis Nappen filing the brief. This is a case involving a person living out of the state of New Jersey who was denied a permit to carry. The interest balance, case-by-case determinations cited in Heller were brought up when discussing the “justifiable need” provision. The plaintiff, Russell, was actually was approved by the Superintendent of State Police to get his permit, however, the judge presiding over the application denied him.

On August 3, 2021, Francisco v. Cooke was filed in the US District Court for the State of New Jersey. The case was filed by attorney Edward A. Paltzik and is being supported by the Firearms Policy Coalition. This case involves two plaintiffs, Daniel Francisco & Ori Katzin. They are challenging the “justifiable need” standard as well, having been denied permits to carry. One of the plaintiffs even supplied video footage of a previous attack and that was not good enough to meet the standard for issuance of a permit to carry. Cited in the complaint are the same case-by-case determinations as previous cases have.

On March 22, 2021, Kendrick v. Grewal was filed in the US District Court for the State of New Jersey. The case was filed by attorneys Daniel Schmutter, David Jensen, et.al. for multiple plaintiffs: Sandra Kendrick, Carol Kinkade, Nancy Merritt, and Bob’s Little Sport Shop. Joining those plaintiffs were the following Second Amendment organizations: Association of New Jersey Rifle & Pistol Clubs, Inc., New Jersey Second Amendment SocietyCoalition of New Jersey Firearm OwnersFirearms Policy Coalition, Inc., and Second Amendment Foundation. This case does not pertain to carry permits but to firearms purchaser identification cards. They cite said issuance in their prayer for relief as being unconstitutional. This is what they seek “A declaratory judgment that New Jersey’s FID and Handgun Purchase Permit requirements, codified at N.J.S.A. 2C:58-3, and implementing regulations facially violate the Second and Fourteenth Amendments to the United States Constitution.”

Ten Round Magazine Ban

Governor Phil Murphy wasted no time to sign into law that one can’t possess magazines that hold over 10 rounds. The 2018 law lowered the round count from the previous 15 rounds.

On April 26, 2021 ANJRPC v. Grewal was filed at the Supreme Court of The United States and we’re waiting to hear if it’s granted or denied cert. The case was filed by attorneys Daniel Schmutter and Paul Clement (Clement argued in NYSRPA v. New York before SCOTUS). The filing was on behalf of Association of New Jersey Rifle & Pistol Clubs, Inc. and Blake Ellman. The petition aims to have the ten-round limit repealed and also invokes Heller:

This Court in District of Columbia v. Heller held that the Second Amendment protects arms that are “typically possessed by law-abiding citizens for lawful purposes,” 554 U.S. 570, 625 (2008), which concededly describes the magazines here to a T. And dispossessing citizens of lawfully acquired property without just compensation effects an impermissible physical taking.

Red Flag/Lack of Due Process

There are all kinds of avenues used to take away and usurp the rights of New Jersey citizens when it comes to firearm ownership and possession. This all pertains to the “red flag” law that passed recently, the matter of domestic disputes, etc. The ins and outs of temporary restraining orders and people not having their firearms returned is a convoluted mess in New Jersey. There are a couple of cases that deal with the seizure of firearms and firearms purchaser identification cards.

On April 12, 2021, Greco v. Grewal et.al was filed to the Third Circuit Court on appeal from the District Court. The case was filed by attorney Albert J. Rescinio on behalf of David Greco. This specific case involves an appeal to be able to file a class-action lawsuit on behalf of Greco and all others harmed by NJ’s “red flag” law. Their filing of a class action suit was denied. The ability to file a class-action lawsuit against the state will allow those targeted without due process under the law to have some remedy. From their appeal summary:

  1. The Third Circuit should adopt and follow the Sixth Circuit’s long recognized Ramirez v. Webb presumption of per se “irreparable harm” for injunction analysis in Fourth Amendment cases and reverse and remand to the District Court for entry of a preliminary injunction.

  2. The District Court improperly denied Appellant’s second motion for “Class Certification” by erring in ruling that Appellant did not satisfy the “commonality” requirements of F.R.Civ.P. 23(b).

  3. The District Court improperly applied the standards of Younger v. Harris, 401 U.S. 37 (1971) as clarified and explained by Sprint Communications, Inc. v. Jacob, 571 U.S. ____ (slip opinion), 134 S.Ct. 584 (2013) and erred by abstaining and dismissing Appellant’s claims.

On August 6, 2021 P.Z. v. State of New Jersey was filed at the Supreme Court of The United States. The case was filed by attorneys Evan Nappen and Louis Nappen on behalf of P.Z., a plaintiff that is remaining anonymous. This case deals with P.Z. having had firearms seized. From the petition:

In the case at hand, New Jersey seized petitioner’s firearms “for safekeeping” pursuant to the Prevention of Domestic Violence Act. App. 1. Although the temporary restraining order that contained the warrant was dismissed, New Jersey refused to return said firearms “in the interest of public health, safety or welfare.”

Also in the petition, the following facts are stated:

At issue in the present case is a citizen’s right to possess firearms in his home. This strikes at the very heart of the Second Amendment.

In McDonald v. City of Chicago, the Court held that the Second Amendment right recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), is applicable to the states and protects “the right to possess a handgun in the home for purpose of self-defense.” 130 S.Ct. 3020, 3050 (2010).

In Heller, this Court held that the government lacks “the power to decide on a case-by-case basis whether the right is really worth insisting upon.” 554 U.S. at 634.

Left unchecked, states such as New Jersey and New York have enacted restrictions based on “good cause,” “good moral character,” “good repute in the community,” and “interest of public health, safety or welfare” to curtail citizens from exercising their right to keep arms for home possession. N.Y. Penal Law § 400.00(1); N.J.S.A. § 2C:58-3c.

The matter of arms seizure and at what level the community caretaking provisions may be invoked will hopefully be addressed. In Caniglia v. Strom, a strong message was sent concerning the lack of due process when firearms are removed from someone’s home. Hopefully, Nappen’s case will put the situation to bed for good.

Summary

As can be seen, there’s a lot going on in New Jersey concerning litigation. People are stepping up to the plate and swinging. Several Second Amendment groups are helping citizens make their injury claims. Hopefully, some of these matters will be resolved sooner than later, such as carry through NYSRPA v. Bruen. The New York case is scheduled to be heard by the Supreme Court of The United States on November 3, 2021, and an opinion should be delivered by June of 2022.

The good work of many people, patriots, organizations and their attorneys needs to be saluted. One such Second Amendment advocate recently posted online showing the right attitude to have when it comes to all these filings:

I am not in it for personal glory or money. I hope someone wins…

Are there cases in New Jersey that need to be reported on? Did we miss something worth communicating? Reach out to AmmoLand News and drop a tip HERE. We’d love to look into what’s being filed.

For ease of reference, find the following consolidated list of the cases mentioned:


John Petrolino is a US Merchant Marine Officer, writer, author of Decoding Firearms: An Easy to Read Guide on General Gun Safety & Use and NRA certified pistol, rifle, and shotgun instructor living under and working to change New Jersey’s draconian and unconstitutional gun laws. You can find him on the web at www.johnpetrolino.com on twitter at @johnpetrolino and on instagram @jpetrolinoiii .

John Petrolino
John Petrolino

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