Law – Page 5 – Shall Not Be Questioned

How to get your gun in New Jersey – a layman’s guide

New Jersey requires permits to purchase firearms – for longarms, it’s a Firearms Purchasers ID card, issued once and good for life (unless revoked, or you move; it has your street address on it). This card is de jureÂ and practically de facto shall-issue, the only quirk being that, while the legislature wrote a “must issue within 30 days (45 for out-of-state applicants)” into the law, the NJ Judiciary interpreted this as “must issueÂ afterÂ the background check is complete;” in effect neutralizing the time limit. Now, while the form to apply for a FPID and the process is uniform statewide, it is administered by the local Chief Law Enforcement officer or the New Jersey State Police for jurisdictions without their own police agency. Furthermore, some jurisdictions have had long-standing traditions and or municipal regulations of having additional requirements not specified in the law, such as additional forms beyond the application and mental health release (Available on the NJSP’s website as PDFs to save and print), interview requirements, and other impediments to the process to purchase a firearm. Of late there is an effort by the NJ Second Amenment Society to sue non-compliant governments to force them to comply with the law, this has been mostly successful with out of court settlements in most cases. Unfortunately, due to the caselaw, the 30-day time limit is not subject to being enforced by lawsuit, so the time it takes to actually receive the FPID is highly variable – my town is generally considred to be middle-of-the-road and I required 6+ weeks both times I applied. Applicants in other towns have had to threaten or actually sue as their wait time approached moths or even a year+. The card itself neither laminated nor standard credit-card size, nor a photo ID. It had your identifying info on one side, and your signature, the CLEO signature, and your fingerprint on the other. It allows you to purchase longarms, as long as you fill out a transfer form and if buying from an FFL, undergo a state-run background check (I understand the FFL calls the NJSP, who runs a quick file check and a NICS check). The last time I bought a longarm it took less time to process that check than it did for me to fill out the 4473 and NJ’s own transfer form.

For handguns, you instead use a Permit to Purchase a Handgun. The application process is exactly the same as the process for obtaining a Firearm Purchasers ID Card, down to using the exact same forms (only checking a different box) – because you need to show an FPID and have the transaction logged when purchasing ammunition from an FFL (ammo for rentals is generally exempt from this requirement), it’s generally considered wise to obtain an FPID at the same time you get your first pistol permit to both take advantage of being able to use the same forms and to be able to buy ammunition retail. Note than “handgun ammo” is considered to be “any ammo that can be used in a handgun,” and includes both “traditional” pistol calibers and .22lr at least. I believe most FFLs log all ammo purchases, but since my only firearms eat 9mm and .22lr, I don’t know for sure. Once complete, you receive aÂ paper form good for 90 days, which can be extended for 90 more days (de jure non-discretionary, and usually de facto as well). This may be used to purchase 1 handgun either privately or through an FFL. If through an FFL, another background check at point of sale applies.

Now, the legislation setting up this scheme was passed in the late 1960s, and the fees were specified at that time and have not been adjusted since then. Consequently, they are relatively trivial; though there isÂ an additional fee nowadays since the entire state now jobs out the fingerprinting to a private company who charges not quite $60 for the job. Fingerprinting is not necessarily required for subsequent paperwork obtained from the same issuing authority as before (at their discretion). Without fingerprinting, the cost is generally under $50 to get a set of permits, often much less. So what some enthusiasts will do is apply for mulitple permits (currently there’s no reason to have more than 3 live ones due to NJ’s one-handgun-a-month scheme), and refresh/replace as the come due, so that they always have the ability to buy a handgun without having to wait out the normal process. If your issuing authority is reasonable, this isn’t a terribly expensive way to go, other than being an unconstitutional tax on the right to obtain a firearm, of course :)

(Obligatory Disclaimer – I am not a lawyer, particularly not one who specializes in NJ firearms law. I’m just some guy on the internet who claims to have read the statutes once or twice).

For more resources see:

The NJSP Firearms FAQ

The NJSP links to NJ Firearms Laws and AG guidelinesÂ – that last includes the current “interpretation:” of the NJ AWB

The NJ2AS News and Resources page

The NJ2AS guide on purchasing a firearm in NJÂ – includes a link to their Operation Establish Compliance page

And, of course, the Association of New Jersey Rifle and Pistol Clubs, our NRA state org.

The management is responsible

I regret that I was not able to fully participate in the discussion that my last post engendered; but a family vacation out of country intervened. But Iâ€™m back now, so I can address a couple of points that came up.

First, of course, I donâ€™t believe that the usual business owner should discriminate against the usual firearms bearer, either as a visitor or employee (except as far as dress code; donâ€™t open carry a white rifle after labor day, donâ€™t open carry at people, &c); at least not as a matter of course. There are circumstances where certain specific areas of a business might be off-limits to carriage of firearms; you donâ€™t necessarily want to allow large chunks of ferrous metal into the MRI room, or non-instrinically-safe items into a place with a volatile atmosphere, for example. Not to mention tightly-secured aras such as prisons, mental hostpitals, or certain areas of courthouses. However, I am also somewhat leery of using the blunt force of law to enforce this societal norm against private property owners. In this case, while Iâ€™m not unaware of the civil rights aspect, itâ€™s not a free-for-all, either. Regardless of your right to free speech, a private property owner may ask you to leave if you exercise it in certain ways, for example; or if you are an employee your free speech rights may be quite sharply curtailed while on the property or on the clock.

However, I chose the title of the last post and this one to highlight that my suggestion is to change the â€œdefaultâ€ assumptions. Today, the â€œno gunsâ€ sign functions against lawyers as a bunch of garlic does against vampires; as a mythical ward against their depredations. The suit in Colorado aims to change this assumption, but not particularly in a way that the supporters of the RKBA should be happy about; the plaintiffs claim that the theater chain should have had more security, not that they should not have posted, and that the theater should be on the hook for compensating the victims and families.

In a better legal regime, the property owner might be excepted to take basic and minimal security precautions, such as ensuring any exterior lighting is in proper order, just as they should ensure that the parking lot does not have any sinkholes, &c. When it comes to controlling access to the property by possessors of weapons, thought, they can have a choice. On the one hand, that if a property owner does not prohibit firearms to the people who are inclined to observe such a restriction, they should be immunized (a la the Protection of Commerce in Lawful Firearms acts immunization of retails and manufacturers of firearms, as a very off-the-cuff suggestion). But, on the other hand, that if the property owner does post, they should be required by law and custom to make a serious effort to ensure that all visitors are protected. IE, that a secure perimeter be established, at the boundaries the visitors be given the opportunity to safely and securely disarm and stow their weapons and later safely and securely recover and rearm, and that the property owner be potentially liable in civil (and if appropriate, criminal) court for malicious acts perpetrated against visitors (and employees), not to mention the secured weapons.

This is something that could and should be codified in law, that if a business owner wishes to declare part or all of their property a â€œweapons-freeâ€ zone, they must make a sincere and thorough effort to ensure that it remains as such. In theory, I suppose the courts could force the issue, but in practice I donâ€™t think they will, at least not in a manner we would recognize as supportive of the general RKBA.

The Management Is Not Responsible

Thereâ€™s a certain amount of libertarian ambivalence about laws that force companies to allow their employees and patrons to have firearms (or other weapons) in vehicles in parking lots on private property. On the one hand, the property rights of the owner are trampled. On the other, if this is not forced, the self-defense right of the individuals are trampled. No matter what, someoneâ€™s natural rights are getting trampled. The justification for parking lot laws boils down to property rights are less important than self-defense rights.

But, thereâ€™s an interesting lawsuit thatâ€™s come out of the Aurora, CO mass shooting a few years back. Victims and family members are proceeding with a wrongful death/personal injury suit against the theater chain. Normally, Iâ€™d say this was an attempt to go after the deep pockets. But, we have been toldÂ that this theater chain was somewhat unusual in the region for posting their property, and itâ€™s suspected that the shooter chose this theater at least partially because it was posted, since the theater was not the closest to his home.

A federal judge has again refused to dismiss wrongful death and personal injury lawsuits filed against a movie theater chain by victims of a 2012 mass shooting at a Colorado cinema where 12 people were killed and dozens injured.

â€¦

In general, the lawsuits claim Cinemark had lax security at its theater in the Denver suburb of Aurora when a gunman opened fired during a midnight screening of the Batman film “The Dark Knight Rises.”

The article then goes on to point out that other theaters in the chain hired security, but this theater chose not to. The theater chainâ€™s defense is that they should not have a â€œduty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.â€ However, by encouraging their patrons to disarm under threat of banning from the property or other legal actions, Iâ€™d say that they have chosen to assume the â€œduty and burdenâ€ by forbidding their patrons from retaining the means of self-defense. And, at any rate, a mass murderer is not the only reason for someone to wish to have the means to defend themselves readily to hand.

In the end, this is why those signs and policies exist, because after a tragedy, people will go looking for the deepest pockets that can provide them monetary compensation. The assumption has been, until now, that the signs may not be effective against lawbreakers, but they are effective against the plaintiffâ€™s bar; that they are the equivalent of those signs you see at coat racks and in parking lots that say â€œmanagement is not responsible for theft.â€ (which is literally true, but apparently needs to be spelled out). However, today we live in a legal regime where the search for deep pockets causes the plaintiffâ€™s bar to advance the theory that if a property owner does not have a policy against the carriage of weapons, they are responsible for the actions of anyone who does carry a weapon onto the property. Which is absurd, of course.

If this lawsuit goes through, though, the property owners will be forced to take on the duty of defense of their patrons. For a variety of reasons I donâ€™t expect this lawsuit to succeed; but it points out a libertarian way of obtaining the same results as a parking lot law, without the trampling of the rights of the property owners. Pass laws that make it harder to sue the property owner for the actions of a third party on that property, a la the Protection of Lawful Commerce In Firearms Act or the safe harbor provisions of the DMCA, and impose a duty to defend patrons if the property owner chooses to post their property as a â€œgun free zone.â€ Then leave it to the free market and the insurance companies to make those signs evaporateâ€¦

H/T to Saysuncle

Fourth Amendment Protections Taken Seriously in Arizona

In a case where being polite and cooperating with police quickly turned into commands that a reasonable person would not have felt were optional so that they could leave, the Arizona Supreme Court said that in order to conduct a frisk of a person, “officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous.”

The case stems from a stop where multiple officers approached a man who was on the street having a conversation with a woman. They admit that he was polite to them and cooperating fully, and prosecutors apparently tried argued that such polite behavior at the beginning of a stop is a sign of consent to a later search. One of the officers spotted a bulge on the waistband and asked if the man was carrying a firearm. The man admitted that he was, and that’s when officers started commanding him to put his hands on his head, disarmed him, and then later arrested him once they found out he had a prior felony. (The article doesn’t say what that prior record was about.) The Court said that the stop was illegal and therefore they threw out the conviction for being a felon in possession.

Gun issues aside, I’m quite impressed with this quote from the opinion in the article where the Court’s decision said, “police interactions with members of the public are inherently fluid, and what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny.”

Dual Citizenship Laws

Tam was wondering how two Americans, recently killed in the hostilities in Gaza, were legally serving in the IDF while retaining citizenship. I am far from an expert in this, but there have been a number of Supreme Court cases involving this topic of dual-citizenship for those of you interested. But my understanding boils down to this: you generally won’t lose your citizenship unless you renounce it or take some action in a manner that shows intent to give up citizenship. US law and policy is generally favorable for people holding dual-citizenship, residing abroad, and serving compulsory military service, which Israel requires. I also think you can even join a foreign military voluntarily, since routine oaths are generally not sufficient to cause the loss of citizenship.

What’s interesting is that the State Department policy that allows one to keep citizenship as a result of a “routine oath” is just that — State Department policy. The case law is less clear as to when one renounces one’s US citizenship or not. Take the case of Vance v. Terrazas, where a dual-US/Mexican national lost his US citizenship when he signed a form having to reaffirm his Mexican citizenship when he went to college there.

What does this have to do with guns? I direct you to question 11(j) on ATF Form 4473, “Have you ever renounced your United States citizenship?” I’m not sure there’s much case law on prosecutions for lying on 11(j), but I could be wrong.Â I think serving compulsory military service of your dual country is probably fine, but if you voluntarily joined a foreign military, or took any action that could be interpreted, through preponderance of the evidence, that you had intent to give up your citizenship, you could find yourself facing a long time in federal prison if you answer that question incorrectly on 4473. It’s a good idea for dual citizens to be cognizant of any oaths or actions that may have been taken that could be interpreted as intent to surrender citizenship.

Philadelphia Legal Smackdown

Remember two years ago when it came out that Philadelphia disclosed personal information about some license to carry applicants in violation of state law?

They were people who were initially denied licenses and were in the process of appealing the denial, and many of them seemed like highly questionable denials.

Well, several of those folks did call lawyers who worked to sue the city and ended up with a great settlement.

From Josh Prince, one of the four attorneys on the case:

…the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement… Further, and of similar importance, the City has agreed to a number of policy changes…:

Not to disclose LTCF applicant information either electronically or in-person;

Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;

Customer service training for the Philadelphia Gun Permit Unit;

Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;

The City will not required references on the LTCF application and will not contact any references listed on the LTCF application;

The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;

The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;

The City will not deny an application because the applicant answered â€œnoâ€ to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;

The City will process all LTCF applications within 45 calendar days;

The City will remit $15.00 to any applicant who is denied within 20 days;

The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and

The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

All of the attorneys in this case deserve huge kudos: Benjamin R. Picker, Jonathan Goldstein, Jon Mirowitz, and obviously, Josh Prince.

Abramski Opinion Released Today

The Supreme Court has finally weighed in on Abramski v. United States today, and it was a 5-4 decision written by Kagan for Kennedy, Ginsburg, Breyer, and Sotomayor with Scalia dissenting and joined by Thomas, Roberts, and Alito. If you’re looking for more background documents on the case, here’s the SCOTUSblog page.

SCOTUS: Police Can Shoot Someone in a High-Speed Chase

The Supreme Court says that a police-inflicted death penalty for someone who leads police on a high-speed chase is justified. It was a unanimous decision. It’s the law in many cases that police can use deadly force to stop a fleeing suspect , but that’s usually limited to someone who has committed a forcible felony. Pennsylvania’s law, for instance, is the following:

However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:

(i)Â Â such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(ii)Â Â the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.

You can read more about the case over at Scotusblog. What concerns me is that the high speed chase started when the driver gotÂ pulled over for a broken headlight. This wasn’t the case of a fleeing and dangerous felon. The passenger in the car was killed as well, but her claims weren’t at issue in this case; the Court only ruled about whether the driver’s rights were violated. I would hope the passenger would have a claim.

Before the Gun Bans Came the Hatpin Bans

Before women got on board with the right to defend themselves with firearms, they turned to another tool which was widely available to them and could be easily concealed while still easily accessible – the hatpin.

Smithsonian ran a feature in April about the menace of women armed with hatpins. When Leoti Blaker boarded a stage coach in NYC in 1903, an older man was next to her. She noticed that at every bump, he seemed to move closer. Finally, he ended up squeezed next to her and then suddenly moved his arm to wrap around her lower back. Needless to say, this was beyond inappropriate for the time, and the grab was not welcomed at all. So, she pulled out her hatpin and “plunged it into the meat of the manâ€™s arm.” He withdrew his arm, suddenly found plenty of space to move away before he jumped off at the next stop.

Blaker apparently told the local paper, “Iâ€™ve heard about Broadway mashers and â€˜Lâ€™ mashers, but I didnâ€™t know Fifth Avenue had a particular brand of its ownâ€¦. If New York women will tolerate mashing, Kansas girls will not.”

The piece highlights that the press went wild with stories around of women using hatpins for self-defense, and men in government did not react well. The story highlights that the Chicago Vice Commission earned the ire of women when they turned the blame for assaults on the victims and argued “that unchaperoned women should dress as modestly as possibleâ€”no painted cheeks or glimpse of ankleâ€”in order to avoid unwanted attention.” When women objected to being told that they were to blame for attacks and promoted the idea of using self-defense by hatpin, that’s when the men decided that they had enough.

Members of the press helped push a panic on the matter. The magazine spotlights one newspaper’s sarcastic response to women thinking they can defend themselves: “We look for the new and imported Colt’s hatpin or the Smith and Wesson Quick-action Pin.” When I searched for the term in the newspaper archives online, I found plenty of other articles that could have come from today’s anti-gun op-eds. A Chicago Record Herald editorial that also ran in a 1910 copy of the Savannah Tribune (GA) argued:

People take greater risks every day of their lives from other things than hat pins. But that isn’t the point. The hat pin risk is stupid, needless and reckless. It imperils eye, and one single human eye is worth more than all the dagger hat pins in the world.

No woman with any regard for other people’s rights would wear one. No woman who does wear one is entitled to any complaint if the city finds a good legal means of stopping her.

Doesn’t that sound like the argument that you don’t “need” a semi-automatic rifle? And then they add in the public shaming by arguing that only women who don’t respect other people would wear them, and they certainly don’t deserve a voice in opposing any new laws targeting their right to hatpins and self-defense.

Only, in 1910, women didn’t have any means to stand up to these men who wanted them defenseless because women didn’t have a right to vote. Chicago was one of the higher profile cities to target women’s hat pins in 1910 when Alderman Herman J Bauler pushed an ordinance that would declare the pins a “public nuisance.” The Montgomery Advertiser (AL) reported on his comments:

Hidden in a mass of plumage or hair [the hatpin] comes under the designation of concealed weapons.

Bauler got his way. By a vote of 68-2, Chicago classified wearing any hatpin with an exposed length of more than half an inch beyond the hat in public as a misdemeanor where women were subject to arrest and fined $50 ($1231.80 in 2013 dollars, according to an inflation calculator). Women booed and hissed the vote, but what could they do?

In Missouri, lawmakers pulled victims of hatpin “accidents” out of the woodwork to promote their effort to ban the tools. They pushed the stories in the media and used the argument that making their lives easier was more important than women securing their hats or having access to these “concealed weapons.” According to the Smithsonian piece, other cities also opted to regulate hatpin use or size, including Milwaukee, Pittsburgh, Baltimore and New Orleans.

By 1912, the anti-hatpin hysteria in men was making the millinery trade nervous and The Millinery Trade Review ran a piece that was picked up by the Idaho Stateman stating:

The millinery trade has the opportunity of making a concession to the public that will be appreciated and that is the reducing the size of the “deadly hat pin,” as the long hat pin is now termed by the press and men folk in general. …. Importers and manufacturers should produce a shorter pin, or a cap to fit on the end of a long pin, which could be attached to the hat by a light weight chain, so as to extend to the end of the pin wherever it protrudes from the hat. By making such a concession the trade would remove the excuse for the law makers of the country passing foolish laws to regulate the size of the hat pin.

Of course, these added features would only drive the cost of hatpins up so that poor women wouldn’t have access to “legal” hatpins. One reference I found mentioned that these lower income women were forced to use things like small pieces of potato to try and comply with the law. Wow, doesn’t that sound just like the war on cheaper handguns and the effort to mandate “smart” guns that many people can’t afford?

Ultimately, the hatpin fears largely went away when World War I broke out. Afterwards, the next great female to fear wasn’t one armed with a hatpin, but flappers, according to Smithsonian.

For more information on hatpins, here’s a guide on how to wear one (mostly with later style hats, so the pins don’t need to be as long) and there is even The American Hatpin Society for collectors. (h/t to Sarah who I know from the Annual Firearms Law Seminar for linking the Smithsonian piece when it came out and recognizing the same types of comparisons to anti-gun arguments today)

Perry County Finds Itself in Hot Water Due to Audit

There’s an interesting situation going on Perry County, Pennsylvania. Auditor Kimberly McMullen may have put the county in some hot water due in a recent interview.

First, she’s demanding permission from the County to spend $6,700 in legal fees to have lawyers research whether she’s allowed access to the confidential files of license to carry holders. (The sheriff won’t hand all of the records over because he notes that that it’s against the law to release the personal information.) The County gave her $2,000 to pursue it instead. Second, she told the media that the law supposedly changed last year and that she would have had access before that “change.”

Well, attorney Josh Prince is doing the taxpayers of Perry County a favor and helping them save $2,000 on legal research. He sent a letter to the auditor making clear that the license to carry applicant information is not to be released to her.

However, McMullen’s claims that the records were available in previous years caught Prince’s attention since he noted that the section of law he cited hasn’t changed since 1997. Oops. McMullen may be regretting that claim since Prince included this little gem in the letter:

Thus, the confidentiality of firearms license information is nothing new and the County and its respective Departments, employees and agents are liable for any disclosures that have occurred. Based on your statement to reporter Sean Sauro that prior to a year ago, all this information was available via right-to-know law requests, I am requesting all information on previous LTCF applicant disclosures by the County and its respective Departments, employees and agents.

So, sorry Perry County taxpayers. Because your auditor doesn’t know the law, now you have to spend resources going through all paperwork to see if the confidential information has ever been released before. Oops.