October 30, 2015


Gun permit denied based on mental health issue
April 8, 2015

Submitted March 18, 2015 – Decided 
Before Judges Maven and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
P.M. appeals from a January 27, 2014 Law Division order upholding a municipal police chief's denial of his application for a New Jersey Firearms Purchaser Identification Card (FPIC) and a handgun purchase permit (handgun permit or permit). For the reasons that follow, we affirm. Our decision is without prejudice to P.M.'s right to reapply for a FPIC and handgun permit in the future, based on his circumstances at the time of that application.1
P.M.'s initial application was dated May 19, 2010. P.M. answered "no" to the following questions on the application: 
(24) Have you ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary, interim, or permanent basis? If yes, give the name and location of the institution or hospital and the date(s) of such confinement or commitment. 
(26) Have you ever 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? If yes, give the name and location of the doctor, psychiatrist, hospital or institution and the date(s) of such occurrence. 
A background investigation was then conducted by Detective Sergeant John Mazure. The investigation revealed that P.M. had been voluntarily admitted to the University of Medicine and Dentistry of New Jersey (UMDNJ) for mental health reasons from December 29, 2007, until January 4, 2008. On December 16, 2010, the Police Chief denied P.M.'s application. The reasons given for denial were P.M.'s "medical, mental or alcoholic background," and "falsification of application." 
On December 29, 2010, P.M. filed an appeal to the Law Division, which he withdrew without prejudice on January 31, 2011. He then applied for, and obtained, an order expunging the record of his admission to UMDNJ.2 The September 1, 2011 expungement order recited "that pursuant to N.J.S.[A.] 30:4-80.11, . . . the commitment shall be deemed not to have occurred and [P.M.] may answer accordingly any questions relating to its occurrence." 
P.M. then filed a second application for a FPIC and a handgun permit on April 24, 2012. In this second application, P.M. again answered "no" to question 24, and referenced the expungement order which he attached to the application. P.M. answered "yes" to question 26, and referenced an attached psychiatric evaluation report of Anthony Todaro, Ph.D., dated February 9, 2012. On June 8, 2012, the Police Chief denied the second application, citing the same grounds as the initial denial. 
On December 14, 2012, P.M. appealed this second denial to the Law Division. The State sought a determination whether the expunged records that served as the basis of the denial would be unsealed for use by the State at the appeal hearing. After hearing oral argument, the court, on November 8, 2013, ruled that the expunged mental health records would be unsealed for this limited purpose. P.M. does not appeal this determination.3
The court conducted a testimonial hearing on P.M.'s second appeal on January 24, 2014. Mazure, who had investigated the application, summarized his findings. Through Mazure's testimony, the State introduced in evidence P.M.'s UMDNJ discharge summary, which reflected that P.M. voluntarily admitted himself to that facility on December 29, 2007, and was discharged on January 4, 2008. 
According to the UMDNJ record, upon admission, P.M., a forty-one-year-old social worker, reported that he was depressed and was experiencing stress resulting from a failed marriage. He had been seeing a psychotherapist weekly, and was also attending marriage counseling. According to P.M.'s wife, he had received therapy on an outpatient basis at a hospital about twenty years earlier.
P.M.'s wife informed UMDNJ staff that, two days earlier, he told her "I'll be dead in [two] days." She then advised P.M. to call his therapist. P.M. responded, "I hope I live through the next [two] days but I probably will not. I will not try hard either." 
P.M. initially denied any suicidal ideation. However, that changed when he was confronted with an e-mail he sent his wife the previous day. According to the evaluator, in that e-mail, P.M. wrote:
"I know I love you more than life itself. My life is not much now. I am worth more deceased." He then said "if something happens, you are the sole beneficiary of my policies" and he named his American Legion and State Life insurance policies. [P.M.] then wrote "what you should do is get a copy of my DD-214 discharge papers. There is a copy in the closet or personnel office at work. [J.O.] is the person you should see. She's very nice. With this document you can have my headstone and burial at Arneytown New Jersey Military Cemetery. You can do what you want with the flag. It's in South Jersey, so you will not have to visit." [P.M.] then went on to write "I have sent you the original documents. It is durable power of attorney that guides you and tells you my wishes if something is to happen to me. I do not want feeding tube or resuscitation, no ventilator, no tracheotomy, no e[x]traordinary heroic measure[s] are to be taken. Please do not let the doctor convince you that I will starve a painful death without a feeding tube." [P.M.] also said "the second part of the document gives access to finances. I prefer you. I might have an alternate, maybe [M.] or [J.]. They don't know. Hopefully they'll follow the paper."
P.M. then agreed to be admitted to the hospital for inpatient psychiatric therapy. His diagnosis on admission was depressive disorder. 
P.M.'s wife reported that his father and brother had a history of alcoholism, and that P.M.'s mother also had a history of mental illness. P.M's wife further advised that P.M. "goes hunting with [his] brother" and "has guns that he keeps at his brother's home because [she] does not allow them in the home." 
With respect to substance usage, the discharge summary indicates that P.M. had a history of alcohol use ten years ago, while further noting "details unknown; [patient] is vague." P.M. stated that he "does not currently drink." P.M. tested positive for opiates and "benzos," and he reported that he used vicoprofen and valium that were prescribed by his primary care physician. The report further indicates, "[patient] was already taking Lexapro [at] the time of admission and then later increased to 20mg. [Patient] was suspected of abusing pain pills and benzo althrough (sic) patient denied it." 
P.M.'s diagnosis on discharge from UMDNJ was "depressive disorder NOS" and "anxiety disorder NOS." His prognosis was described as "fair," and he was directed to continue with treatment and to take twenty milligrams of Lexapro daily. 
The Police Chief testified that P.M.'s first application was denied because "[t]here was a mental illness incident," and also because P.M. had not answered the questions on the application properly. The Chief determined that these factors disqualified P.M. from obtaining a FPIC and handgun permit under N.J.S.A. 2C:58-3. The Chief later denied P.M.'s second application due to "[p]retty much the same circumstances." Expanding, he explained that his denial was "[b]ased on what was in the report from [UMDNJ]." On cross-examination, the Chief indicated that he had no knowledge whether P.M. had any present mental health condition. 
P.M. testified that he was forty-seven years old, and serves as a director of social services at a facility where he supervises six staff members. He testified that he has no history of criminal, disorderly persons, or DWI convictions, is not an alcoholic nor drug-dependent, and has never had a restraining order issued against him. According to P.M., at the time of his admission to UMDNJ he was homeless and experiencing marital strife as a result of having an extra-marital affair. 
P.M. explained that he was confused when he answered the questions on the first application, since he had not been committed to UMDNJ but rather was admitted voluntarily. He later had that record expunged, and stated that he presently has no suicidal ideations nor is he continuing to receive psychiatric care. In response to a question from the court, P.M. advised that he wanted the guns for hunting and target practice, activities that he enjoyed participating in with his father as a youngster. 
P.M. also introduced into evidence Dr. Todaro's February 9, 2012 psychological evaluation report, as well as a psychiatric evaluation report of Edward Baruch, M.D., who had evaluated P.M. on February 27, 2013. Neither expert testified at the hearing. 
Dr. Todaro's evaluation of P.M. occurred on May 5, 2011, and January 15, 2012, and included eight hours of psychological evaluation, three hours of clinical interview, and three hours of analysis and review of records. Dr. Todaro noted that P.M.'s "[g]eneral symptomatic distress levels . . . are very low, indicating either a true absence of psychological distress or a highly defensive posture." The report makes no mention of P.M.'s UMDNJ admission. Dr. Todaro characterized P.M.'s prognosis as "[v]ery good to excellent." He concluded his report by expressing the opinion that "[i]t can be stated with reasonable psychological certainty that [P.M.] is safe to handle firearms and does not present a danger to himself or others." 
In preparing his report, Dr. Baruch relied on information he obtained from P.M., as well as his review of Dr. Todaro's report and the UMDNJ records. P.M. reported that he had not been in treatment since "sometime in 2008," and "that he decided to discontinue therapy once he and his therapist felt he reached his treatment goals." P.M. further advised Dr. Baruch that he had not taken Lexapro in over two-and-a-half years, and that "he decided to come off the medication under the supervision of his doctor." P.M. denied experiencing any resurgence in depressive symptoms since he discontinued the medication. 
Dr. Baruch concluded that P.M. does not currently display any evidence of psychiatric symptoms, nor "suffer from any disability or disease that would interfere with or handicap him in the safe handling of firearms." He opined, "within a reasonable degree of medical certainty, that [P.M.] can possess and handle firearms safely, without a risk of danger to himself or others." 
In an oral opinion placed on the record on January 24, 2014, Judge Edward Jerejian considered the totality of P.M.'s mental health history, including P.M.'s 2007-08 hospitalization. The judge also considered P.M.'s "acknowledgement of a history that dates back; counseling; medications; and, ultimately, a diagnosis of depressive disorder, anxiety disorder." The judge noted that, following his hospitalization, P.M. underwent additional treatment, and continued on his medications until 2010. 
The judge then weighed this history against the opinions expressed in P.M.'s experts' reports. The judge rejected Dr. Todaro's opinion, stating: "I don't find Dr. [Todaro's] [e]valuation helpful. I mean, I don't know how you can possibly have a psychological evaluation of this matter without discussing the 2007 hospitalization." As for Dr. Baruch's subsequent examination, the judge noted that while he did discuss P.M.'s hospitalization, Dr. Baruch based his evaluation "on mostly self-[re]porting from P.M. and Dr. [Todaro's] [e]valuation." 
Ultimately, Judge Jerejian found that giving P.M. a FPIC and a handgun permit would be contrary to the public welfare.  N.J.S.A. 2C:58-3(c)(5). The judge reasoned: 
But, certainly, again, aside from his legal issues, the [c]ourt in considering his overall mental health picture – I'm not convinced that enough time has elapsed. I view his hospitalization for depression not as being remote[,] [e]ven though 2007 is now a little more than six years ago when he was hospitalized. 
He was on medications until 2010. He was under treatment until 2008. He stopped. He was seeing a clinical social worker. He had a serious situation leading to a hospitalization of, at least, six days. His dosage was increased. He had [] certainly, clear signals of suicide ideation. 
As a result, . . . the burden[] [has] been met by a preponderance of the evidence that issuance of these permits would not be [in] the public health, safety, or welfare. I know it's not a bar to, perhaps, apply in the future when it's more remote; there's more of a history.
But these . . . were medical mental health diagnoses which now are completely un-counseled and untreated. And the [c]ourt feels that, as a result, the burden has been met. So, I'm going to affirm the [C]hief's denial. 
On appeal, P.M. raises the following points: 
We find P.M.'s contentions of error on appeal do not warrant extended discussion in a written opinion.  See R. 2:11-3(e)(1)(E). We add the following comments. 
The findings by a trial judge are "binding on appeal when supported by adequate, substantial and credible evidence."  Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.65 N.J. 474, 484 (1974). We will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'"  Ibid. (quoting Fagliarone v. Twp. of N. Bergen78 N.J. Super. 154, 155 (App. Div.), certif. denied40 N.J. 221 (1963)). Nevertheless, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan140 N.J. 366, 378 (1995). 
The hearing in the Law Division is de novo, which "'contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" In re Osworth365 N.J. Super. 72, 77 (App. Div. 2003) (quoting Weston v. State60 N.J. 36, 45 (1972)), certif. denied179 N.J. 310(2004). Hearsay is admissible, but there must be sufficient legally competent evidence to support the court's findings. Westonsupra, 60 N.J. at 50-51. "The chief has the burden of proving the existence of good cause for the denial by a preponderance of the evidence."  Osworthsupra, 365 N.J. Super. at 77.
N.J.S.A. 2C:58-3(c) directs the issuance of a permit to purchase a handgun and a firearms purchaser identification card to any person of "good character and good repute" who is not subject to any of the enumerated exceptions. The statute provides "[n]o handgun purchase permit or firearms purchaser identification card shall be issued: . . . [t]o 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). 
"[T]he statutory design is to prevent firearms from coming into the hands of persons likely to pose a danger to the public." State v. Cunningham186 N.J. Super. 502, 511 (App. Div. 1982). The broad catch-all provision of section (5) relates "'to cases of individual unfitness, where, though not dealt with in the specific statutory enumerations, the issuance of the permit or identification card would nonetheless be contrary to the public interest.'"  Osworthsupra, 365 N.J. Super. at 79 (quoting Burton v. Sills53 N.J. 86, 91 (1968)).
We reject P.M.'s contention that the trial court erred by substituting its own opinion for that of P.M.'s medical professionals. Contrary to P.M.'s argument, the court was not required to blindly accept P.M.'s experts' opinions. With respect to the opinions of qualified experts, "[a] trial court is free to accept or reject the testimony of either side's expert," in full or in part.  Brown v. Brown348 N.J. Super. 466, 478 (App. Div.), certif. denied174 N.J. 193 (2002). See also Model Jury Charge (Civil), 1.13 and 1.13(B), "Expert Testimony" (1995). 
Here, although neither expert testified, Judge Jerejian carefully analyzed each of their evaluation reports. The judge rejected Dr. Todaro's opinion, as it completely failed to consider P.M.'s UMDNJ hospitalization. The judge clearly also gave only limited weight to Dr. Baruch's report, as he found it relied heavily on P.M.'s self-reporting and Dr. Todaro's deficient report. 
The UMDNJ report demonstrates that, upon discharge, P.M. was to continue treatment and take twenty milligrams of Lexapro daily. P.M. advised Dr. Baruch that he discontinued his treatment "sometime in 2008," and that he "decided to come off the medication under the supervision of his doctor." However, the record contains no indication that either Dr. Todaro or Dr. Baruch reviewed the records of P.M.'s treating therapist to confirm the accuracy of P.M.'s representations when formulating their respective opinions that P.M. is presently fit to handle firearms. Judge Jerejian carefully explained the reasons that he rejected or only gave limited weight to the reports of P.M.'s experts, and why their opinions did not negate the concerns raised about P.M.'s fitness when viewed through the prism of his entire mental health history. 
We decline to second-guess the judge's conclusion that granting P.M.'s application "would not be in the interest of the public health, safety or welfare."  N.J.S.A. 2C:58-3(c)(5). Cf. State v. Cordoma372 N.J. Super. 524, 535-36 (App. Div. 2004) (upholding the trial court's N.J.S.A. 2C:58-3(c)(5) disqualification finding because the court "had a rational basis to question the defendant's fitness to possess a firearm"). Thus, in this case the denial of a FPIC and handgun permit under the N.J.S.A. 2C:58-3(c)(5) disqualification was established by a preponderance of the evidence. 
Addressing P.M.'s next point, we find no merit in his constitutional argument. We have recently explained that:
[T]his court has addressed, and rejected post District of Columbia v. Heller554 U.S. 570128 S. Ct. 2783171 L. Ed.2d 637 (2008), [the] argument that the public health and safety exception of N.J.S.A. 2C:58-3(c)(5) is unconstitutionally vague.  In re Dubov410 N.J. Super. 190, 196-97 (App. Div. 2009). We do not find that McDonald v. City of Chicago561 U.S. 742130 S. Ct. 3020, 3026, 177 L. Ed.2d 894, 903 (2010), alters our thinking, as it did not address due process issues but merely extended Heller's holding to the States. "We cannot conclude that the [Second] Amendment or the Court's recent decisions require this State to dismantle its statutory scheme addressing the risks of misuse and accidental use [of firearms] in public places devised long ago and developed over many years. This scheme is crafted to burden the exercise of the right to use handguns for lawful purposes as little as possible, without abandoning this effort to maintain order and safety in public places."  In re Wheeler433 N.J. Super. 560, 617 (App. Div. 2013) (addressing constitutionality of the State's carry permit law).
[In re Winston438 N.J. Super. 1, 10 (App. Div. 2014) (second and third alterations in original), certif. denied, __ N.J. __ (Feb. 2, 2015).] 
1  In reaching this conclusion, we do not imply any view as to the merits of a future permit application, should P.M. choose to submit one. 
2  N.J.S.A. 30:4-80.8 provides that a person "may apply to the court" for the expungement of his or her medical records if he or she 
has been . . . committed to any institution or facility providing mental health services, or has been determined to be a danger to himself, others, or property, or determined to be an incapacitated individual as defined in N.J.S.[A.] 3B:1-2, by order of any court or by voluntary commitment and who was . . . discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent to discharge or determination, is substantially improved or in substantial remission.
3  See In re J.D.407 N.J. Super. 317, 327-28 (Law Div. 2009) (holding that applicant for FPIC and handgun permit is required to waive privilege of expungement or, alternatively, withdraw the application).

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