Courts must not "'presume that the Legislature intended something other than that expressed by way of the plain language.'"
How later courts described this case
- Courts must not "'presume that the Legislature intended something other than that expressed by way of the plain language.'"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3899-21
IN THE MATTER OF THE APPEAL
OF THE DENIAL OF R.W.T.'S APPROVED FOR PUBLICATION
APPLICATION FOR A December 22, 2023
FIREARMS PURCHASER APPELLATE DIVISION
IDENTIFICATION CARD AND
A HANDGUN PURCHASE PERMIT.
_______________________________
Submitted November 9, 2023 – Decided December 22, 2023
Before Judges Currier, Firko and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
GPA-BER-0011-22.
Evan F. Nappen Attorney at Law, attorneys for
appellant R.W.T. (Louis P. Nappen, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent State of New Jersey (K. Charles Deutsch,
Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
This matter presents a question of first impression concerning the rights
and responsibilities of New Jersey gun permit applicants under the Second
Amendment to the United States Constitution. Petitioner R.W.T. 1 appeals a
July 8, 2022 Law Division order denying his application for a Firearms
Purchaser Identification Card (FPIC) and a permit to purchase a handgun
(PPH). After conducting an evidentiary hearing, the trial court issued an oral
opinion denying petitioner's application on two independent grounds. The trial
court found petitioner knowingly falsified information on the application,
triggering disqualification pursuant to N.J.S.A. 2C:58-3(c)(3). The trial court
also found petitioner was involved in past altercations with a neighbor,
demonstrating his acquisition of a firearm "would not be in the interest of
public health, safety or welfare" pursuant to N.J.S.A. 2C:58-3(c)(5). After
carefully considering the record in light of the governing legal principles and
arguments of the parties, we affirm the denial of petitioner's FPIC and PPH
based on the trial court's finding he knowingly provided false information on
his application.
Petitioner contends both statutory provisions the trial court relied upon
violate the Second Amendment as recently interpreted by the United States
Supreme Court in N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 597
U.S. __, 142 S. Ct. 2111 (2022). In Bruen, the Court devised a new test for
1
We refer to petitioner by initials because the trial court discussed medical
records in rendering its decision. See R. 1:38-3(a)(2).
A-3899-21
2
resolving Second Amendment challenges, displacing the "means-ends" test
traditionally used to determine the constitutionality of a government regulation
impinging on an individual's constitutional rights. Id. at 2117. The Court held
the government must "not simply posit that the regulation promotes an
important interest," but must demonstrate "the regulation is consistent with this
Nation's historical tradition of firearm regulation." Id. at 2126. To pass the
new test, the government must show there was "relevantly similar" regulation
of the conduct when the Second and Fourteenth Amendments were adopted by
presenting a "well-established and representative historical analogue. . . ." Id.
at 2132-33 (emphasis omitted).
Applying this new "analogical" paradigm, we recently rejected a facial
challenge to the constitutionality of the "public health, safety or welfare"
disqualification criterion. See In re M.U.'s Application for a Handgun
Purchase Permit, 475 N.J. Super. 148, 190-94 (App. Div. 2023). We have not
yet had the occasion, however, to address the falsification disqualification
provision's constitutionality. We now hold this provision survives Second
Amendment scrutiny notwithstanding that, so far as we are aware, it has no
historical analogue.
At first glance, this acknowledgment might seem to conflict with the
United States Supreme Court's new emphasis on the historical regulation of
A-3899-21
3
firearms. See Bruen, 142 S. Ct. at 2133. But the falsification disqualification
provision's constitutionality follows inescapably from an important principle
rooted in Bruen: states may establish a gun-licensing regime. See Bruen, 142
S. Ct. at 2138 n.9. Under such a licensing system, prospective gun purchasers
or persons seeking to carry a firearm outside their home must obtain a permit.
The application for the permit prompts a background check to determine if
there is a basis to overcome the presumption that the permit must be issued.
As a matter of rudimentary common sense, a jurisdiction with any such
"shall issue" licensing regime may require applicants to provide truthful
information on their applications, and correspondingly, may deny an
application when false information is knowingly tendered. Truthfulness on an
application, after all, is an integral and indispensable part of the licensing
process and applicants are not free to lie to the licensing authority without
consequence.
Accordingly, the constitutionality of the falsification disqualification
provision springs not from historical precursors, but rather from the
constitutionality of the licensing regime itself. Having acknowledged the
constitutionality of the basic structure of a shall-issue licensing regime, Bruen
signaled that laws safeguarding the integrity of such licensing systems without
A-3899-21
4
imposing additional substantive limits on who can purchase a gun will also be
constitutional.
We further hold the trial court acted within its authority in making
factual findings and applying those facts to the falsification disqualification
provision. Denial of petitioner's application on that ground is supported by
substantial and credible evidence and we decline to substitute our judgment for
the trial court's judgment in assessing witness credibility. Accordingly, we
affirm the denial because petitioner knowingly provided false information in
his application.
Because the falsification disqualification provision categorically requires
denial, we need not address petitioner's challenges to the trial court's
determination that granting his application would be inimical to public health,
safety or welfare under N.J.S.A. 2C:58-3(c)(5). We are mindful of the general
principle that "[c]ourts should not reach a constitutional question unless its
resolution is imperative to the disposition of litigation." Randolph Town Ctr.,
L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006). Here, resolution of petitioner's
arguments pertaining to N.J.S.A. 2C:58-3(c)(5) are not imperative to this
appeal's resolution because the denial of his FPIC/PPH application was
required on other grounds.
I.
A-3899-21
5
In January 2022, petitioner applied for an FPIC and a PPH. The Upper
Saddle River Police Department chief denied the application on the grounds
that it "would not be in the interest of public health, safety or welfare"
pursuant to N.J.S.A. 2C:58-3(c)(5). Petitioner appealed the chief's decision to
the Law Division pursuant to N.J.S.A. 2C:58-3(d). The trial court convened an
evidentiary hearing at which multiple witnesses testified. We discern the
following pertinent facts from the hearing.
A.
Background Information
Petitioner is a forty-three-year-old married man with three daughters.
He earned a Bachelor of Science degree in finance. Since childhood,
petitioner has been an avid hunter and sportsman. He has no disqualifying
felony convictions or juvenile delinquency adjudications, no domestic violence
disorderly persons convictions, no domestic violence weapons forfeiture, no
mental health commitments, and is not subject to a restraining order.
Petitioner provided two letters of recommendation. The trial court read
them into the record and found they "attest to the good character of
[petitioner], given their personal relationship with him." Petitioner also
offered into evidence his New Jersey Division of Fish and Wildlife ID card
and North Carolina Resources license.
B.
A-3899-21
6
Falsification on Application Form
On his FPIC application, petitioner marked "no" in response to the
question: "[h]ave you ever been attended, treated, or observed by any doctor or
psychiatrist or at any hospital or mental institution on an impatient or
outpatient basis for any mental or psychiatric condition?" At the evidentiary
hearing, petitioner acknowledged he had in fact been treated by a psychiatrist
in college for "a sports performance issue that was deemed to be a mental
block." He could not remember the psychiatrist's name, or the exact number of
times he visited the psychiatrist. When the trial court asked if he visited the
psychiatrist more than once, petitioner replied, "I'm trying, Your Honor, the
only reason I'm taking a pause is I've seen marriage counselors, and things of
that nature. I don't know if that qualifies to [t]his question." The trial court
responded, "I just heard testimony from you, you were asked, have you ever
seen a psychiatrist, you hesitated. It was a very long pause."
After additional follow-up questions, petitioner also acknowledged he
underwent marriage counseling with his ex-wife but could not recall "whether
they were psychologists or psychiatrists." He also acknowledged he continued
to receive counseling to deal with his post-divorce issues.
When asked why he did not disclose seeing a psychiatrist for the sports
performance issue on his application, petitioner explained his doctor did not
A-3899-21
7
deem the condition to be a "significant mental illness." Petitioner admitted
that when he filled out the application, he recalled visiting the psychiatrist. He
explained, "[t]he reason I answered no, Your Honor, is I didn't know that that
qualified as a mental condition for these purposes. I thought it was some
simpl[e] therapy." The following exchange then occurred:
THE COURT: But just to be clear again, when you
answered no to the question as to whether you had
ever been attended, treated or observed by any doctor
or psychiatrist, when you answered no, you
considered— you recalled and you considered your
past of seeing a psychiatrist in college, correct?
PETITONER: Frankly it didn't even come to mind,
Your Honor. And I apologize—
THE COURT: You just told me a few minutes ago
that at the time you answered that question, you
recalled seeing a psychiatrist in college.
PETITIONER: Yes.
THE COURT: You just told . . . that a few minutes
ago.
PETITIONER: Yes.
THE COURT: Now you're telling me something
totally different.
PETITIONER: I'm sorry, no, Your Honor, I didn’t
mean to contradict myself, I'm sorry.
THE COURT: Well maybe you didn't mean to
contradict yourself, but you're contradicting
yourself . . . . I have a concern when you tell me
A-3899-21
8
something a few minutes ago and then you contradict
yourself right after it.
The trial court repeated its concern that petitioner had provided
"completely different answers" and asked petitioner to explain himself.
Petitioner answered, "[i]t was never my intention to mislead on the application
or mislead this [c]ourt. I at the time did not even consider those incidents
when I answered the question. I'm sorry when—."
The trial court interceded, stating, "[s]o when you told me initially when
I asked you, did you recall seeing a psychiatrist, when you answered that
question no, and then you gave me an explanation that you didn't believe what
you were treated for fit or was applicable to that question, so that was
incorrect?" Petitioner responded, "[y]es, Your Honor, that's correct." Based
on petitioner's answer to the application's question concerning past mental
health treatment and his contradictory testimony, the trial court concluded he
knowingly falsified information in his application.
C.
Past Violence
Multiple witnesses testified about a February 29, 2020 incident that
occurred at petitioner's home. Police received two 9-1-1 calls. One of the 9-1-
1 calls was made by petitioner's wife. The other call was made by petitioner's
neighbor, E.S., who was working as a contractor at petitioner's home.
A-3899-21
9
When police arrived, they were told there had been a "dispute that turned
physical" between petitioner and E.S. E.S.—who did not testify at the
hearing—reported to the responding officer that petitioner "came into the
house irate about the rate of [E.S.'s] production and began assaulting him."
E.S. also told police petitioner struck him in the face and placed him in a
chokehold, causing him to have an asthma attack that required medical
attention. The trial court noted "[t]here [were] some visible injuries observed
on [E.S.] with his bloody lip. He was having an asthma attack. Trouble
breathing."
Petitioner reported E.S. "pushed him into the doorframe, causing
[petitioner] to strike his head." Petitioner told police he "retaliated in self -
defense." Petitioner's wife testified that E.S. grabbed petitioner by the side of
the head and "slammed his head in the side of the door frame." Both
combatants sustained injury, but no arrests were made and no criminal charges
were filed.
The police chief testified he was concerned about granting petitioner's
FPIC application because of the possibility of future violent incidents. The
chief explained, "because of a report that there had been other incidents, that
there's been a history of violent confrontations [between petitioner and E.S.]
A-3899-21
10
. . . being that they're neighbors, was concerning in the fact that we had no idea
whether there were any other incidents or not."
The trial court recognized the report concerning other confrontations
between petitioner and E.S. was "based solely upon hearsay." The trial court
also acknowledged that if E.S. was the aggressor and physically assaulted
petitioner in his home, as petitioner and his wife claimed, petitioner "had every
right to defend himself." However, the trial court expressed concerns with
petitioner's credibility.
Furthermore, the trial court noted petitioner's testimony confirmed there
had been a physical altercation. The trial court explained, "[y]ou corroborate
that in your testimony, that there was a physical confrontation between you
and [E.S.]. Okay. So that incident happened . . . . and there was a physical
altercation or scuffle between you and [E.S.]. That is not hearsay. That's
corroborated by your own testimony." The trial court also gave weight to the
responding officer's testimony. Based on the foregoing evidence, the trial
court concluded petitioner was "disqualified pursuant to [N.J.S.A.] 2C:58 -
3(c)(5), that it wouldn't be in the interest of public health, safety or welfare."
This appeal follows. Petitioner contends that under the Bruen analysis,
both the falsification and public health, safety or welfare disqualification
provisions are unconstitutional because they are inconsistent with our Nation's
A-3899-21
11
historical regulation of firearms. He also contends the trial court erred in
applying the falsification disqualification criterion because the information
petitioner failed to disclose on the application was irrelevant and immaterial.
Petitioner further argues he cured any deficiency by retracting and amending
his application answer during the hearing. With respect to the public health,
safety or welfare criterion, petitioner contends the trial court failed to explain
why he constitutes a threat sufficient to deny him the right to purchase a
firearm.
II.
Applications for an FPIC or PPH are governed by N.J.S.A. 2C:58-3.
The statutory framework "recognizes that the right to possess firearms is
presumed, except for certain good cause." In re Z.L., 440 N.J. Super. 351, 355
(App. Div. 2015) (citing N.J.S.A. 2C:58-3(c)). The statute lists a series of
disqualifying circumstances including, as we have already noted, one that
specifically provides that no FPIC or PPH shall be issued "to any person who
knowingly falsifies any information on the application form for a handgun
purchase permit or firearms purchaser identification card." N.J.S.A. 2C:58-
3(c)(3). The other statutory provision at issue in this case read at the time of
A-3899-21
12
petitioner's application 2 that "[n]o [PPH or FPIC] shall be issued . . . to any
person where the issuance would not be in the interest of the public health,
safety or welfare." N.J.S.A. 2C:58-3(c)(5) (Dec. 2022).
The statute requires the chief police officer or the superintendent of the
State Police "to investigate the application to determine whether or not the
applicant has become subject to any of the disabilities set forth in this
chapter." N.J.S.A. 2C:58-3(e). A police chief's denial of an application for an
FPIC/PPH is subject to de novo review by the Law Division. In re Osworth,
365 N.J. Super. 72, 77 (App. Div. 2003) (citing Weston v. State, 60 N.J. 36, 45
(1972)). "The chief has the burden of proving the existence of good cause for
the denial by a preponderance of the evidence." Ibid. "[I]n evaluating the
facts presented by the [c]hief, and the reasons given for rejection of the
application the court should give appropriate consideration to the [c]hief's
2
Following the hearing in this case, the statute was amended to bar issuance
"[t]o any person where the issuance would not be in the interest of the public
health, safety or welfare because the person is found to be lacking the essential
character of temperament necessary to be entrusted with a firearm. . . ."
N.J.S.A. 2C:58-3(c)(5) (Jan. 2023). Because we are not addressing the facial
or as-applied constitutionality of this disqualification criterion, we need not
decide whether the original or revised version applies in this case—an issue
not briefed by either party. Nor do we address whether and how the additional
language in the revised version might impact the Bruen analysis—an issue also
not briefed by the parties.
A-3899-21
13
investigative experience and to any expertise he appears to have developed in
administering the statute." Weston, 60 N.J. at 46.
An appellate court's review of "a trial court's legal conclusions regarding
firearms licenses [is] de novo." In re N.J. Firearms Purchaser Identification
Card by Z.K., 440 N.J. Super. 394, 397 (App. Div. 2015). However, we must
accept the trial court's fact findings if they are supported by substantial
credible evidence. In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17
(1997).
III.
We first address whether the falsification disqualification provision is
unconstitutional on its face. We start by providing a succinct overview of
foundational Second Amendment principles. The Second Amendment states:
"[a] well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed." U.S. Const.
amend. II.
In District of Columbia v. Heller, the United States Supreme Court
identified the "core" of the Second Amendment as "the right of law -abiding,
responsible citizens to use arms in defense of hearth and home." 554 U.S. 570,
634-35 (2008). The Court nonetheless acknowledged "the right secured by the
Second Amendment is not unlimited," adding that "nothing in our opinion
A-3899-21
14
should be taken to cast doubt on . . . laws imposing conditions and
qualifications on the commercial sale of arms." Id. at 626-27. To underscore
that point, the Heller Court noted these kinds of restrictions on the sale of
firearms are "presumptively lawful." Id. at 627 n.26.
Two years later, a plurality of the Court reaffirmed that Heller "did not
cast doubt on such longstanding regulatory measures as 'prohibitions on the
possession of firearms by felons. . . .'" McDonald v. City of Chicago, 561 U.S.
742, 786 (2010). But the McDonald Court also clarified "that the Second
Amendment right is fully applicable to the States" through the Fourteenth
Amendment. Id. at 750.
That brings us to Bruen, which fundamentally changed the landscape of
Second Amendment jurisprudence. Bruen involved a New York law
criminalizing possession of a firearm without a license, both inside and outsid e
the home. Bruen, 142 S. Ct. at 2122. To obtain a firearm license, the
applicant had to demonstrate "proper cause," that is, "a special need for self-
protection distinguishable from that of the general community." Id. at 2123
(citation omitted). The Court held the Second Amendment protects an
individual's right to carry a handgun for self-defense both in and outside the
home. Id. at 2122. The Court further held the proper cause requirement was
unconstitutional because it "prevent[ed] law-abiding citizens with ordinary
A-3899-21
15
self-defense needs from exercising their right to keep and bear arms." Id. at
2156.
Importantly, as we have already noted, Bruen fashioned an entirely new
analytical framework for resolving Second Amendment challenges. Under the
new standard, the government must justify its regulation by demonstrating that
it is "consistent with the Nation's historical tradition of firearm regulation." Id.
at 2129-30. The Court explained this "analogical reasoning requires only that
the government identify a well-established and representative historical
analogue, not a historical twin. So even if a modern-day regulation is not a
dead ringer for historical precursors, it still may be analogous enough to pass
constitutional muster." Id. at 2133 (emphasis in original). The Court
cautioned, however, that "courts should not 'uphold every modern law that
remotely resembles a historical analogue,' because doing so 'risk[s] endorsing
outliers that our ancestors would never have accepted.'" Ibid. (quoting
Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021)). "To be clear," the
Court explained, "analogical reasoning under the Second Amendment is
neither a regulatory straightjacket nor a regulatory blank check." Ibid.
IV.
Petitioner argues the falsification disqualification provision runs afoul of
Bruen because "[a]t the time of our Nation's founding, a citizen could be the
A-3899-21
16
biggest liar in the country, yet still enjoy the right to keep and bear arms." We
note at the outset that petitioner's framing of the argument misconstrues the
falsification disqualification feature. The provision does not account for,
much less depend on, the applicant's reputation for veracity, but rather looks at
the truthfulness of the information within the four corners of the application.
Although a falsification must be made knowingly to trigger disqualification,
this statutory provision focuses on the application, not the applicant.
After carefully reviewing the text and underlying rationale of Bruen, we
hold the falsification disqualification provision survives Second Amendment
scrutiny notwithstanding that we cannot point to a historical analogue for it. 3
We need not cite historical precursors in this instance because the Bruen Court
has already clarified that "shall-issue" licensing regimes 4 are permitted under
3
In his brief, petitioner states, "[c]ounsel is unaware of any regulation in
place against the general citizenry at the time of our Constitution’s framing
that barred citizens from exercising Second Amendment rights if they
incorrectly filled out a firearm permit application form, or for that matter, any
falsification allegation." We note the State in its responding brief has not
identified any historical analogue for the challenged falsification
disqualification provision.
4
Bruen, 142 S. Ct. at 2138 n.9. N.J.S.A. 2C:58-3 falls within the rubric of a
"shall issue" regime because an applicant may not be denied an FPIC or PPH
unless he or she is subject to a statutorily specified disability. See N.J.S.A.
2C:58-3(f) ("There shall be no conditions or requirements added to the form or
content of the application, or required by the licensing authority for the
issuance of a permit or identification card, other than those that are specifically
A-3899-21
17
the Second Amendment so long as they contain "narrow, objective, and
definitive standards to guide officials in determining whether applicants were
'in fact, "law-abiding, responsible citizens."'" State v. Wade, 476 N.J. Super.
490, 502 (App. Div. 2023) (quoting Bruen, 142 S. Ct. at 2138 n.9), leave to
appeal denied, ___ N.J. ___ (2023). The Bruen Court recognized forty-three
states have shall-issue licensing regimes, stressing that "nothing in our analysis
should be interpreted to suggest the unconstitutionality [of those regimes]."
Bruen, 142 S. Ct. at 2138 n.9; see Bruen, 142 S. Ct. at 2161 (Kavanaugh, J.,
concurring) ("[T]he Court's decision does not prohibit States from imposing
licensing requirements for carrying a handgun for self-defense."); see also
M.U., 475 N.J. Super. at 204 n.11 ("Bruen emphasized that its holdings did not
effectuate a wholesale invalidation of the various states' gun licensing and
permit systems.").
We deem it noteworthy that Bruen endorsed the concept of shall-issue
licensing regimes without citing any historical analogues. The Court, in other
words, acknowledged the constitutionality of modern licensing systems
without identifying a single example of an 18th Century statute or ordinance
requiring citizens to apply to a government agency for a permit before they
_____________________
set forth in this chapter."). We note petitioner does not dispute that he is
challenging portions of a "shall-issue" licensing regime.
A-3899-21
18
could purchase or carry a firearm. (Of course, there would be no precursors
for a falsification disqualification provision if there are no historical analogue s
for modern licensing systems requiring gun permit applicants to submit a
completed application.)
Relatedly, the Court expressly recognized modern gun-permitting
regimes "often require applicants to undergo a background check. . . ." Bruen,
142 S. Ct. at 2138 n.9. But again, the Court did not mention any jurisdiction in
early America that required prospective gun owners to undergo a background
check by a government agency.
The Court's general acceptance of background checks provides important
guidance in addressing the novel constitutional question before us. Requiring
applicants to answer questions truthfully on a form is no more intrusive of
Second Amendment rights than requiring background checks. Cf. United
States v. Holden, 70 F.4th 1015, 1017 (7th Cir. 2023) (noting in a criminal
prosecution for making a false statement to a firearms dealer that "Congress is
entitled to require would-be purchasers to provide information—their names,
addresses, Social Security numbers, criminal histories, and so on . . . . The
power to collect accurate information is of a different character—and stands
on a firmer footing—than the power to prohibit particular people from owning
guns."). Indeed, answering the questions on an application form is the initial
A-3899-21
19
step—and an essential part—of the background check process. Those answers
provide basic information to facilitate a follow-up inquiry, if needed, by the
agency responsible for conducting the background check.
Read in context, it is clear that Bruen's focus on the Nation's early
history of firearm regulation pertains to the substantive criteria used by
licensing regimes to deny applications, not to whether states may require
citizens to file a truthful application for a gun permit. The falsification
disqualification provision is sui generis among the statutory disqualification
criteria set forth in N.J.S.A. 2C:58-3. Unlike the other disabilities, it does not
focus on the applicant's background or suitability to possess a firearm. Rather,
it is designed to safeguard the integrity of the licensing and background check
process. In practical effect, this provision establishes a procedural bar to the
issuance of an FPIC or PPH, not a substantive one. Stated another way, this
provision does not impose substantive limitations on who is qualified to obtain
a firearm. Indeed, anyone, regardless of their background or physical or
mental health, can avoid falsification disqualification simply by telling the
truth on their application.
Because Bruen allows states to require individuals to apply for a firearm
license/permit, it logically follows that those states may also require the
information in the application be complete and truthful. We deem a
A-3899-21
20
falsification disqualification feature integral to and inseparable from the
inherent structure of a gun-licensing regime. Because the United States
Supreme Court has already endorsed the concept of shall-issue licensing
regimes, we must presume that an implementing law safeguarding the integrity
of any such regime by insisting the application is complete and truthful will
likewise pass constitutional muster.
Relatedly, and even more simply, Bruen carefully instructs:
When the Second Amendment's plain text covers an
individual's conduct, the Constitution presumptively
protects that conduct. The government must then
justify its regulation by demonstrating that it is
consistent with the Nation's historical tradition of
firearm regulation. Only then may a court conclude
that the individual's conduct falls outside the Second
Amendment's "unqualified command."
[Id. at 2129-30 (emphasis added) (quoting Konigsberg
v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).]
It is clear the Second Amendment's plain text does not cover lying on an
application. That conduct is simply not protected by the Second Amendment
and so regulation of that conduct is not subject to the analogical test.
Petitioner's facial challenge to the falsification disqualification feature thus
fails under the threshold question raised in the Bruen analysis.
V.
A-3899-21
21
We next consider whether the testimony elicited at the hearing
established by a preponderance of the evidence that petitioner knowingly
falsified any information on his application, triggering disqualification for
falsification. We address petitioner's three arguments: (1) the inaccurate
answer on his FPIC/PPH application was not material to the determination of
whether he is fit to purchase a gun, (2) he "cured" any deficiency in his
application by explaining and retracting his answer during the hearing, and (3)
the trial court erred in concluding he knowingly falsified information on his
application.
A.
Materiality
Petitioner contends the falsification disqualification provision applies
only to material falsifications and that his answer to the question pertaining to
past treatment for a mental or psychiatric condition was "irrelevant and
immaterial to his current eligibility [for an FPIC or PPH]." He further
contends "what matters is not whether a person falsifies, but whether the
falsification is relevant and material."
We disagree. Petitioner's argument belies the plain language of N.J.S.A.
2C:58-3(c)(3), which expressly and unequivocally provides that an FPIC or
PPH shall not be issued to an applicant "who knowingly falsifie[d] any
information on the application form. . . ." (emphasis added). "Where 'a
A-3899-21
22
statute's plain language is clear, we apply that plain meaning and end our
inquiry.'" In re Registrant H.D., 241 N.J. 412, 418 (2020) (quoting Garden
State Check Cashing Serv., Inc. v. Dep't of Banking & Ins., 237 N.J. 482, 489
(2019)). Courts must not "rewrite a plainly-written enactment of the
Legislature nor presume that the Legislature intended something other than
that expressed by way of the plain language." State v. Frye, 217 N.J. 566, 575
(2014) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). It is also well-
established that when the Legislature uses the word "any," the intent is to
cover all applications. See State v. Pleva, 203 N.J. Super. 178, 188-89 (App.
Div. 1985).
Petitioner asks us to engraft onto N.J.S.A. 2C:58-3(c)(3) the materiality
element of the crime of perjury found in N.J.S.A. 2C:28-1(b).5 We have
5
N.J.S.A. 2C:28-1(b) provides:
Falsification is material, regardless of the
admissibility of the statement under rules of evidence,
if it could have affected the course or outcome of the
proceeding or the disposition of the matter. It is no
defense that the declarant mistakenly believed the
falsification to be immaterial. Whether a falsification
is material is a question of law.
In State v. Anderson, 127 N.J. 191 (1992), the Court invalidated the last
sentence in N.J.S.A. 2C:28-1(b), holding the materiality of a falsehood is an
element of perjury that must be proved to a jury beyond a reasonable doubt.
Id. at 194-95, 206.
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neither cause nor authority to rewrite the falsification disqualification
provision as petitioner suggests. For one thing, N.J.S.A. 2C:58-3(c)(3) is not a
criminal statute. Petitioner has not been charged with an offense for providing
false information. The material elements of the crime of perjury have no
relationship to the purpose and scope of the falsification disqualification
provision. Unlike a criminal falsification statute, this regulatory provision is
not designed to punish. Rather, it is designed to safeguard the integrity of
New Jersey's gun-permit system.
But even more fundamentally, the comprehensive definition of
materiality in the perjury statute shows the Legislature knows full well how to
indicate when a falsehood needs to be material to warrant condemnation under
a particular statute. See N.J.S.A. 2C:28-1(b). Notably, the crime of false
swearing, N.J.S.A. 2C:28-2, does not require that the false statement be
material because it does not incorporate by reference N.J.S.A. 2C:28-1(b). See
State v. Neal, 361 N.J. Super. 522, 527-28 (App. Div. 2003). So too, the
unsworn falsification offense, N.J.S.A. 2C:28-3, which applies to statements
made on a form bearing notice that false statements made therein are
punishable, does not incorporate by reference the materiality element from the
perjury statute. These examples confirm a falsehood must be material only
when the Legislature expressly so provides. We add that the falsification
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crime specifically referenced in the application's warning, N.J.S.A. 2C:39-
10(c), likewise does not include or incorporate a materiality element. That
statute provides:
Any person who gives or causes to be given any false
information, or signs a fictitious name or address, in
applying for a firearms purchaser identification card, a
permit to purchase a handgun, a permit to carry a
handgun, a permit to possess a machine gun, a permit
to possess an assault firearm, or in completing the
certificate or any other instrument required by law in
purchasing or otherwise acquiring delivery of any
rifle, shotgun, handgun, machine gun, or assault
firearm or any other firearm, is guilty of a crime of the
third degree.
[N.J.S.A. 2C:39-10(c) (emphasis added).]
Although we need not look beyond the plain text of the falsification
disqualification statute, we note that invoking FPIC/PPH disqualification when
any falsification is tendered is consistent with the application's underlying
function, which is to provide information to facilitate the police chief's
background investigation. See H.D., 241 N.J. at 418.
In reaching that conclusion, we acknowledge and stress that a "yes"
answer to the psychiatric treatment question does not by itself provide a basis
upon which to deny an FPIC/PPH application. Petitioner might well be correct
that ultimately, his prior mental health treatment has little or no bearing on his
present fitness to own a firearm. But petitioner's argument puts the cart before
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the proverbial horse. The requirement for complete truthfulness on an
FPIC/PPH application is not just designed to disclose circumstances that
would automatically justify denying the application. Rather, the requirement
for absolute truthfulness serves to facilitate the police chief's background
investigation by revealing information that may warrant a follow-up inquiry.
See N.J.S.A. 2C:58-3(e) ("[T]he chief police officer or the superintendent shall
proceed to investigate the application to determine whether or not the applicant
has become subject to any of the disabilities set forth in this chapter."). The
follow-up investigation may lead to other relevant information regarding the
applicant's present fitness to be entrusted with a firearm.
It bears noting the Legislature's decision to mandate disqualification for
any knowingly false statement serves as an incentive for FPIC/PPH applicants
to be complete in their answers. It also discourages applicants from making
their own judgment of what information might be relevant. Indeed, that is
exactly what happened here. At one point during the hearing, petitioner
claimed he did not reveal his prior mental health treatment by a psychiatrist in
his application because the psychiatrist did not deem it a "significant mental
illness." Petitioner thus took it upon himself to decide his prior psychiatric
treatment was immaterial, that is, irrelevant to his fitness to purchase a
firearm. But under the de novo review framework recognized in Osworth, it is
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for a Law Division judge after a hearing, not an applicant before the hearing,
to determine whether evidence of mental health treatment warrants denying an
FPIC/PPH application. 365 N.J. Super. at 77.
We add the FPIC/PPH application form gives clear warning that no false
or incomplete statement will be tolerated. The form states:
I hereby certify that the answers given on this
application are complete, true and correct in every
particular. I realize that if any of the foregoing
answers made by me are false, I am subject to
punishment. Falsifications on this form is a crime of
the third degree as provided in N.J.S.[A.] 2C:39-10(c).
(emphasis added).
But even if we accepted, for the sake of argument, that the Legislature
intended only to disqualify applications with material falsifications,
petitioner's application must still be denied on that ground. N.J.S.A. 2C:58-
3(e) expressly provides the certification form prescribed by the State Police
superintendent pursuant to N.J.S.A. 2C:58-3(b)(1) must set forth:
whether the applicant has been attended, treated or
observed by any doctor or psychiatrist or at any
hospital or mental institution on an inpatient or
outpatient basis for any mental or psychiatric
condition, giving the name and location of the doctor,
psychiatrist, hospital or institution and the dates of the
occurrence. . . .
This shows a legislative determination that this information is relevant and
material for the background investigation into an applicant's fitness to
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purchase a firearm. The undeniable relationship between mental illness and
the numerous mass-shootings around the Nation plainly shows why the
Legislature deemed it necessary to require gun permit applicants not only to
disclose whether they have ever been treated by a doctor or psychiatrist for a
mental or psychiatric condition, but also to disclose when and where the
treatment occurred so that a police chief can conduct an appropriate follow-up
inquiry.6
B.
Retraction
6
We note the disclaimer portion of the application form states in pertinent
part:
I am aware of my rights under N.J.S.A. 30:4-24.3,
and the Health Insurance [Portability and]
Accountability Act (HIPPA), 45 C.F.R. 164-50, and
consent to the disclosure of my mental health records,
including disclosure of the fact that said records may
have been expunged, to the [c]hief of [p]olice and the
[s]uperintendent of State Police, or their designees, for
the purpose of verifying my firearms permit
application and my fitness to own a firearm under
N.J.S.A. 2C:58-3. I understand that this
authorization shall be considered sufficient
authorization for the release of records or for the
disclosure of the fact of the expungement.
(emphasis in original).
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Petitioner argues he "cured" any falsifications by amending and
retracting his application answer during the hearing. He notes his "disclosure
[that he had been treated by a psychiatrist] occurred before any decision was
made regarding his application by the [c]ourt below and against petitioner's
self-interest since no one else was even aware of it."
In support of his argument, petitioner asks us to incorporate the
"retraction" affirmative defense to a criminal prosecution for perjury or false
swearing.7 But as we have already noted, petitioner has not been charged with
a crime and so an "affirmative defense" that can be raised in a criminal
prosecution has no bearing on a noncriminal, regulatory provision. See
N.J.S.A. 2C:13-1(c). If the Legislature meant to allow false statements on an
application to be corrected at the hearing authorized by N.J.S.A. 2C:58-3(d), it
would have said so.
We add that unlike perjury, false swearing, and unsworn falsification to
authorities, the falsification offense specifically referenced in the FPIC
application, N.J.S.A. 2C:39-10(c), does not expressly incorporate by reference
the retraction affirmative defense set forth in N.J.S.A. 2C:28-1(d). In other
7
Under N.J.S.A. 2C:28-1(d), retraction is an affirmative defense if: "the actor
retracted the falsification in the course of the proceeding or matter in which it
was made prior to the termination of the proceeding or matter without having
caused irreparable harm to any party."
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29
words, the crime specifically addressing false information on an FPIC
application does not recognize a retraction defense. Since the Legislature
clearly knows how to incorporate the retraction affirmative defense codified in
N.J.S.A. 2C:28-2(d) by reference, we presume its omission from the crime
designed specifically to punish falsifications in an FPIC/PPH application was
intentional. See Frye, 217 N.J. at 575 (Courts must not "'presume that the
Legislature intended something other than that expressed by way of the plain
language.'") (quoting O'Connell, 171 N.J. at ). In sum, we read N.J.S.A.
2C:58-3(c) to mean an FPIC/PPH application that includes a knowing
falsehood is disqualified at the moment it is filed and cannot be rehabilitated
by an admission made later at a Law Division hearing.
We note, moreover, that in this instance, petitioner did not retract his
falsification on his own initiative. This is not a situation where an applicant
withdrew the application and replaced it with one that included completely
accurate information. Petitioner's false answer was first exposed during the
hearing while being cross-examined by the prosecutor. As the trial court aptly
noted, when asked a direct question, and after taking "a very long pause,"
petitioner for the first time admitted he had in fact visited a psychiatrist. By
failing to disclose his mental health treatment in his application, petitioner
precluded the police chief from investigating his mental health history prior to
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the hearing. The admission thus came too late to avoid the mandatory
disqualification feature.
Finally, with respect to petitioner's retraction contention, we reject his
argument that "[a]ll NJ FPIC disqualifiers have potential 'cures,' which make
applicants eligible when they previously may not have been." In support of
that argument, petitioner points to the fact that a disqualifying restraining
order can be dismissed or vacated, alcoholics can obtain a professional
certification indicating they are safe to handle firearms, a minor can reach the
age of majority, and convicted felons may obtain an expungement. See
N.J.S.A. 2C:58-3(c)(1)-(4).
That is all true. But those examples of changed circumstances do not
support petitioner's argument that a knowing falsification in an application can
be rehabilitated through retraction at a Law Division hearing on de novo
review of a denial by the police chief. Any such falsification could result in a
police chief approving a permit request that might otherwise have been denied.
In that event, there would be no opportunity for a belated "retraction" at a
hearing because no hearing would be convened.
C.
Finding of Knowing Falsification
We next turn to petitioner's contention the court erred in finding he
knowingly falsified information on his application. As we have noted, we are
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bound to accept the trial court's fact findings in a gun permit hearing if they
are supported by substantial credible evidence. See J.W.D., 149 N.J. at 116-
17.
Here, the trial court made extensive factual findings with regard to the
falsification, and those findings are based on petitioner's own testimony and
the trial court's assessment of his credibility. We reproduce the trial court's
thorough explanation for its conclusion:
I need to be clear about this for the record.
When he's asked about this initially, he has a clear
recollection of seeing a psychiatrist, I mean there's
some waffling, first he says does a psychologist count.
Then again I think there's a clarification that in fact
this was a psychiatrist. . . .
I asked you whether or not you did any research
before filling out the application. You said you did,
some online articles. You gave an explanation, okay,
as to why you answered no. You tried to explain that
the reason why you answered no was, that at the time
you answered that question, you recalled seeking help
for this mental block, with a psychiatrist, but you
didn't feel that whatever you were treated for,
whatever you sought that help for, was within the
scope of what you should have disclosed in this
question. Okay?
Okay, if you're being honest, that's a reasonable
explanation . . . Now mind you, I have no other
evidence before me regarding your past psychological
or psychiatric treatment . . . This is coming all from
you. Okay. So I have to make a determination. . . .
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That is the problem here. Okay? Because then I
have to decide, do I accept what you're telling me, all
right, where you contradict yourself completely,
within a space of a few minutes, when it deals with
whether or not you've ever been treated by a
psychiatrist, how do I know you're telling the truth?
How do I know you didn't seek treatment for some
other condition? Okay.
Now when I add to that the fact that you
testified, and there's nothing wrong with seeking
marriage counseling, or counseling before you,
because you go through a difficult situation . . . .
Okay, so I'm left with making credibility
findings here. And I simply cannot ignore that you
give me a detailed explanation as why you answer no,
and then you completely contradict yourself and say
well it really didn't come to mind at all.
For that reason, I do find that the State has met
its burden by a preponderance of the evidence, that
you've knowingly falsified your FPIC application. It's
common sense. How could I conclude otherwise?
Okay. Because if I conclude otherwise, I would have
to accept that your initial answer to me with your
explanation that you sought help or treatment for a
mental block and you saw a psychiatrist for a certain
period of time. And you did research online when you
answered the application. And you didn't feel that
whatever you went to the psychiatrist for and sought
treatment for, wasn't within the scope of that question.
If I'm to accept that, well it didn't really come to mind,
how can I ignore that you gave me completely
incorrect and false answer to when you were first
asked about that. How do I ignore that? I can't . . . .
So not only do I find that there's been knowing
falsification, you told me at the time you answered no,
you were aware and recalled that you had seen a
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psychiatrist. You told me that. Those are your words.
I'm not making this up. These are your words. And
it's not only the knowing falsification, it's the
contradictory answers that give me concern.
Given the deferential standard of our review of fact findings, we have no
basis upon which to disturb the trial court's conclusion that petitioner
knowingly falsified information on his application. Despite petitioner's
claims, the trial court did not inappropriately consider petitioner's mental
health or treatment history. The trial court properly focused on petitioner's
failure to disclose his mental health treatment on his FPIC/PPH application
and on the contradictory statements he made during the hearing. The trial
court mentioned petitioner's mental health to express concern about his
credibility, commenting, "how do I know you're telling the truth? How do I
know you didn't seek treatment for some other condition?" We see nothing
inappropriate in the court posing those rhetorical questions in the context of
deciding whether petitioner had knowingly falsified information on h is
application. Indeed, as we have noted, falsification disqualification was
properly invoked in this case in part because petitioner's inaccurate answer
inhibited the police chief from investigating "whether or not the applicant has
become subject to any of the disabilities set forth in this chapter." N.J.S.A.
2C:58-3(e).
VI.
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Finally, we turn to petitioner's contention the trial court erred in denying
his application on the grounds that issuing an FPIC or PPH would not be in the
interest of public health, safety or welfare pursuant to N.J.S.A. 2C:58-3(c)(5).
Petitioner repeats the constitutional arguments raised in M.U. See M.U., 475
N.J. Super. at 169-71. He also contends the trial court failed to explain how
and why he constitutes a threat if he was allowed to purchase a gun.
As a general proposition, under the doctrine of constitutional avoidance,
courts "strive to avoid reaching constitutional questions unless required to do
so." Comm. to Recall Robert Menendez from the Off. of U.S. Senator v.
Wells, 204 N.J. 79, 95 (2010). Relatedly, "as a matter of judicial restraint,
'courts should not decide cases where a judgment cannot grant relief.'"
Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000)
(quoting Cinque v. N.J. Dep't of Corrs., 261 N.J. Super. 242, 243-44 (App.
Div. 1993)). Here, as-applied constitutional scrutiny of the public health,
safety and welfare provision, which has since been amended, see supra note 2,
could have no bearing on the ultimate outcome of this appeal since denial of
petitioner's application is dictated by the falsification disqualification
provision. Therefore, we need not address the trial court's determination that
petitioner is unfit to purchase a firearm pursuant to N.J.S.A. 2C:58-3(c)(5).
Affirmed.
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