Gun Lawyer Episode 126
new jersey, firearms, gun, second amendment rights, denied, gun rights, guns, firearm, laws, lawyer, state, judge, possess, gun laws, carry permit, forfeiture, case, fighting, expungement, mu
Evan Nappen, Louis Nappen, Speaker 3
Evan Nappen 00:16
Hello, I’m Evan Nappen, and welcome to Gun Lawyer. So guess what, we have a new sponsor at Gun Lawyer. That’s right. In addition to the Association of New Jersey Rifle and Pistol Clubs, I’m also proud to introduce WeShoot, WeShoot, which is a fantastic shooting range in Lakewood, New Jersey. (www.weshootusa.com) They have twelve 25-yard indoor ranges. They also have training and can get you all set to get your carry permit in New Jersey. It is a really great fun range, and I’m really psyched to have WeShoot on Gun Lawyer.
Evan Nappen 01:06
We have some exciting news, though, to talk about. Very exciting, and that is the new case that just came down. I’m proud to say my firm brought and won, and the case was an Appellate (Division) case that was argued by my brother, Louis Nappen, who is here today. Say, Lou, how you doing, man?
Louis Nappen 01:38
Evan Nappen 01:39
All right. I’m just getting a “howdy”? Come on. Give me something more than a howdy. Aren’t you happy to be on Gun Lawyer and talking about this great case?
Louis Nappen 01:50
It’s an interesting case. It’s quite amazing what New Jersey does and how this decision came down. It was a long hard fight, and we’re going higher because it’s a mixed bag of amazing things that only in New Jersey could these.
Evan Nappen 02:08
Yes, it definitely qualifies as the “only in New Jersey” line. Now, this case went at a number of issues. But essentially, what were the facts, if you will, of MU. Just briefly. The name of the case by the way, tell us about the name of the case. We’re calling it MU.
Louis Nappen 02:34 Page – 2 – of 11
Okay, yeah, we went over this once before, and this is a follow up to that. This particular program is the name of the cases “In the matter of the Appeal of the Denial of MU’s application for a Handgun Purchase Permit and in the matter of the Revocation of MU’s Firearm Purchaser Identification Card and Compelling the Sale of His Firearms”.
Evan Nappen 02:58
Now you know why we just call it MU. Yeah, because that’s ridiculous. But not just because of how it expanded. It’s right on the full escalation of an attack on our client’s rights by the State. Okay, take and stop the permits, and to take the guns and to forfeit the guns, and to just absolutely disenfranchise our client of his Second Amendment rights and his ability to have firearms.
Louis Nappen 03:35
I’ll give you the history briefly.
Evan Nappen 03:37
Yeah. What was the basis that the State had? Go ahead.
Louis Nappen 03:39
Okay. It starts off. First off, this is a gentleman who already had a Firearm Purchaser Identification Card that was granted, and he already owned firearms. So, he applied for a Permits to Purchase Handguns or additional handguns. And at that hearing, so he. Well, I’m sorry, he was denied by his local police chief on that application a couple of years later.
Evan Nappen 04:07
And this is after he owned guns and had his permit. Well, did anything new happen in between?
Louis Nappen 04:14
Evan Nappen 04:16
Louis Nappen 04:17
Evan Nappen 04:17
So, he had been granted his permits, and there was nothing new that happened. Yet he gets denied trying to get some more purchase permits?
Louis Nappen 04:26
Correct, and he appealed that denial. This is up in Bergen County, New Jersey. So, the moment he appeals the denial of the application, the State then moves, the Bergen County Prosecutor’s Office, which is very typical of them and what they do for the last 5-10 years at least, is to not only open up any expungement that he might have, to see what might be in his past, and a Motion to Revoke his Page – 3 – of 11
Firearms Purchaser ID Card, which he possessed already and a Motion to Compel the Sale of Firearms that he already possessed as well. So that’s how much they go back, if you try to appeal your denial of additional firearm permits.
Evan Nappen 05:27
This was in Bergen County, and the judge in that county, who’s the judge?
Louis Nappen 05:32
That was Judge (Christopher R.) Kazlau, and we have a number of appeals of his cases. This is typical happening in that. I mean, it has happened, typically in terms of it’s happened, certainly, to several individuals that I know of. We even have pending where they motion to take firearms at permit appeal hearings, purchase permit appeal hearings, not at forfeiture motions. This is not a forfeiture hearing. This is a permit appeal hearing.
Evan Nappen 06:03
So, what was the challenge here?
Louis Nappen 06:06
Well, they allege that he’s a danger to the Public Health, Safety, Welfare. That’s the subsection because he had and has continues to have, no disqualifiers that are objective in that sense. He has no per se disqualifiers. No criminal record that bars him. Never had any restraining orders. No drug or alcohol issues. Nothing along those lines that you would think.
Evan Nappen 06:36
So, the entire basis for denial is simply based on a subjective opinion of the judge. Purely subjective. Yeah, that can be different from one judge to another without any structure or demands on how that determination gets made. Right?
Louis Nappen 06:59
That’s correct. As you say, the what did the judge eat for breakfast standard, you know, whether they’re in a bad mood or a good mood. It’s purely discretionary in that sense. I know certain judges that I’ve been before, who would not accept this standard to say that this person should be denied. So, it’s a shame, but that. By the way, the statute has since been amended, post-Bruen Decision to read now to “any person where the issuance would not be in the interest of public health, safety, welfare, because the person is found to be lacking the essential character of temperament necessary to be entrusted with a firearm. That’s the current
Evan Nappen 07:45
Oh, that sure makes it a lot clearer and not subjective. That “character temperament” thing there. Wow.
Louis Nappen 07:52
And oh, and it doesn’t define “character” or “temperament”.
Evan Nappen 07:56 Page – 4 – of 11
Right. There are just more layers of arbitrary nonsense.
Louis Nappen 08:01
Yes. So, what happened is he goes there, I don’t want to get too repetitive about what we’ve done in the past. Now, he’s not the most perfect person in the world. He has had some issues in his youth. But they were dismissed matters that were also expunged. So, not only did he not have a conviction of anything, but they were also expunged matters, that they opened up, looked at the incident and said, based on what you did here, and you’re not regretful enough, if you kind of read the opinion, I advise everyone to read it, because I think it’s fascinating to see what they do here. And it’s out there. (https://www.njcourts.gov/sites/default/files/court-opinions/2023/a2535-20.pdf) It’s a published decision which means it does have influence across New Jersey and can be cited. So, we raise several prongs of attack here. Most interestingly, we’re probably going to be, and we have word now that we will be taking.
Evan Nappen 09:00
So, let me see if I can summarize. We went after the fact that they were attempting, and in fact, forfeited the guns that he already possessed and mandated that he could no longer possess the guns that he already had and had lawfully acquired. We went after the standard of the “all-inclusive weasel clause”, the catch all of public health, safety, welfare, which you can twist and turn to basically deny anybody, depending on how you want to view it in any pejorative manner. Then we also went after the constitutional challenge to the statute itself and this disqualifier by applying a the Bruen test. Is that correct?
Louis Nappen 09:51
In summary, that is it. Those are the main issues that we attacked. I also attacked that they shouldn’t be opening up expungements for this purpose, correct. That would be the. And that he deserves a jury trial if you are going to move for forfeiture.
Evan Nappen 10:03
Ah, right. A jury trial if it is a forfeiture, because we know that there is case law on other types of property where that specifically applies. Right?
Louis Nappen 10:15
Right. So, while the court upheld,
Evan Nappen 10:17
Well, before we get to explaining the result, what I want to do now because then we’re going to get into the good part, what the win was and how outstanding this win is, because it affects so many people. Then we can talk about the other part where we didn’t win, but the fight continues. And we’ll do that when we come back from the break.
Speaker 3 10:48
For over 30 years, Attorney Evan Nappen has seen what rotten laws do to good people. That’s why he’s dedicated his life to fighting for the rights of America’s gun owners. A fearsome courtroom litigator Page – 5 – of 11
fighting for rights, justice, and freedom. An unrelenting gun rights spokesman tearing away at anti-gun propaganda to expose the truth. Author of six best-selling books on gun rights, including Nappen on Gun Law, a bright orange gun law Bible that sits atop the desk of virtually every lawyer, police chief, firearms dealer, and savvy gun owner. That’s what made Evan Nappen America’s Gun Lawyer. Gun laws are designed to make you a criminal. Don’t become the innocent victim of a vicious anti-gun legal system. This is the guy you want on your side. Keep his name and number in your wallet and hope you never have to use it. But if you live, work, or travel with a firearm, the deck is already stacked against you. You can find him on the web at EvanNappen.com or follow the link on the Gun Lawyer resource page. Evan Nappen – America’s Gun Lawyer.
Speaker 3 12:02
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcast.
Evan Nappen 12:17
Hey, welcome back to Gun Lawyer. I’m Evan Nappen, and with us today is my brother, Louis Nappen. Louis is an attorney in the Evan Nappen law firm, and he does fantastic work. He focuses on our appellate work and on licensing matters and does a great job. Before all of us get more into understanding the impact of the MU case, I want to just take a minute here and thank our sponsors, our sponsors plural, which I’m proud to say, number one, the Association of New Jersey Rifle & Pistol Clubs. They are the state official affiliate of the NRA for New Jersey. And it’s your state association, and you need to belong to your state association. The Association is the number one gun rights group in New Jersey fighting for New Jerseyans – number one. They are in Trenton with a full-time paid lobbyist.
Evan Nappen 13:26
They’re in the courts, litigating as we speak, in the Carry Killer Civil Rights Violation Bill fight. They’re fighting the magazine, standard capacity magazine ban that Murphy signed. They’re fighting the assault firearm ban, and they are at the forefront of the litigation. They also filed an amicus brief in the MU case that we’re discussing now. So, you need to belong to the Association. When you do belong, you get your membership benefits, which include getting email alerts advising you of the most current things going on in Trenton and what’s going on in the litigation. It keeps you up to the moment as to the threats against us in Jersey and then enables you to have a part by making it very easy to let your legislators know how you feel about these proposed infringements on our Second Amendment rights. So, please join the Association of New Jersey Rifle & Pistol Clubs, go to www.anjrpc.org so that you can join. You also get a fantastic newsletter as well. Really the best in the state on gun rights and all the things that you care about and that I care about in this great newsletter that’s put out. It’s just a source and a wealth of information and action to defend your rights.
Evan Nappen 15:00
Let me also tell you about our newest sponsor that I’m very excited about. And that’s WeShoot, WeShoot is a top of the line, super friendly, shooting range in Lakewood, New Jersey, where they have 12 in door lanes for shooting. They have training classes, and you can practice and they have a fantastic team at WeShoot. For those of you looking to get your carry permit in New Jersey, WeShoot Page – 6 – of 11
has absolute excellence in training. They have former State Police instructors that are there. They offer a six hour course, and plus there’s the actual shooting component as well. They have certified many folks. They’ve never had any of their training certificates, none of the folks that trained at WeShoot have ever been denied their carry permit because they did not have sufficient training. So, when you want to get your training, you want to make sure that you’re going to a place where when you apply for your carry permit, they’re not going to question your credentials as to the training component. WeShoot has your back. And it’s really a great place. They’re very convenient for those in Central Jersey, Monmouth County, Ocean County right there in Lakewood. You’ll really love it. We are so proud to have WeShoot on Gun Lawyer. You can check out WeShoot at www.WeShootusa.com That’s www.WeShootusa.com Check it out and pay them a visit. You’ll see what a great resource having WeShoot is to have on your side.
Evan Nappen 17:03
Okay, Lou, I want to now talk about the good stuff. What is the big win? Let’s let everyone know.
Louis Nappen 17:14
So, anytime that you can chip away at anything that New Jersey does, it’s a good day, and in this case, they got nothing they didn’t already have. They already have public health, safety, welfare standard. They already have that, and they’ve already been moving on opening up expungements. But what they have been doing that they can no longer do is “compel the sale”, what we call forfeit. Make you forfeit your firearms that you already possessed at a permit appeal hearing. So, that is no longer a practice that’s permissible in New Jersey.
Evan Nappen 17:57
As a matter of fact, you don’t go through with the sale and sell it. They keep your guns. So, while
Louis Nappen 18:06
And you have to do it within, in this particular order, 60 days or else they will be destroyed. This is what it says in the opinion itself. “We reverse the forfeiture and compelled sale of appellant’s firearms and remand for entry of a corrected order. On remand, the court shall conduct further proceedings to determine whether the firearms may be returned from the federally licensed firearms dealer, or whether some other remedy is available. In those proceedings, appellant is free to pursue his claims for deprivation of his property rights under the Second, Fourth, Fifth and Fourteenth Amendments.” (Page 64) That’s already.
Evan Nappen 18:42
The court made it clear that the lower court needs to correct, that’s their language, the order, to make it correct, because it was not correct. And then leaves open the other avenues for redress.
Louis Nappen 18:47
Evan Nappen 18:54
And constitutional nature. Page – 7 – of 11
Louis Nappen 19:02
Yep. So, if there’s a lesson here to learn, especially if it’s just merely a permit appeal matter, if the police or state say oh, do you consent to turn over your firearms while we proceed with this hearing? It’s almost just a general rule generally. Never consent. Now if they have a warrant, they are going to do what they’re going to do. You don’t physically stop them in any way. But you’re not going to turn over your rights and just say, oh, yeah, take my firearms.
Evan Nappen 19:32
Right. Let me go into this even deeper because we see this all the time, and it’s very frustrating. You get denied your gun license because you applied for your gun license. If you do not have some per se disqualifier, meaning you’re a convicted felon, you have a domestic violence restraining order, you have a mental health commitment, or something that is per se and disqualifies you, but instead, you’re just denied for this nebulous, this so objective, arbitrary standard of public health, safety, welfare, which is not a per se disqualifier, which is not a disqualifier of what’s called “certain persons not to possess”. That’s not out there on this. If that’s the basis for the denial and you’re not going to challenge that denial, you have no obligation whatsoever to turn in your guns, nor should you.
Evan Nappen 20:24
You should call an attorney right away. They have no authority to take your guns unless there is some forfeiture proceeding in law, where they have some basis to take your guns. Not simply because you’re appealing a license denial that did not contain a per se disqualifier. Do not let them walk all over you. In New Jersey, they think the answer is take your guns and ask questions later. This state just focuses on stealing everyone’s guns that they can get their hands on. I mean, this is just a part of this environment that we’re in, in New Jersey, disenfranchise individuals of their gun rights. Do everything to diminish our Second Amendment rights, take individual’s guns, try to keep them, forfeit them. And make New Jersey a police state. A state where individuals cannot possess firearms, and only the elites, only the elites, can have guns.
Louis Nappen 21:39
So, if the state has a valid reason to move to forfeit your firearms or to search and seize them, they will use that. You don’t have to give them free rein by consent. Okay? So, what was found here in this particular case, the State certainly didn’t have any, and they even admitted in it that they were moving under no statute that allows for the compelled sale of firearms.
Evan Nappen 22:10
New Jersey does have those statutes, but none of them applied here. For example, they could apply for an ERPO, which is an Extreme Risk Protection Order, but they’re going to have to show that there’s some immediate danger. And none of this existed for the criteria for an ERPO, which if it is issued, the first document is a TERPO, which is a Temporary Extreme Risk Protection Order. Then they are authorized in that to seize guns under the ERPO law. And then you have a hearing to see whether there’ll be a Final Extreme Risk Protection Order granted. And that’s called a FERPO. So, the due process is there to some degree, although it’s not in there upfront. Yet, this is one method. It’s the ERPO. It’s a TERPO, and then the FERPO. By the way, if it’s brought in Bergen County, it’s a Burpo. Page – 8 – of 11
I’m just kidding about that. It’s not a Burpo. But the words are something else. So, there’s also the ability under Duty to Warn, where health professionals are mandated to rat you out immediately to the police if you say anything stupid, even though it was just hyperbole. Like, oh, man, I had such a bad day, I could kill myself.
Louis Nappen 23:32
In fact, let me just mention here, I just worked.
Evan Nappen 23:36
Or you say something like, I’m so mad at that guy, I could kill him. You cannot say those things.
Louis Nappen 23:41
No. Just this morning, I was at the doctor’s office for an annual checkup, and they give you a questionnaire. How are you feeling today? And they go through all that. Are you suicidal and all that stuff? They’re trying to get you into that.
Evan Nappen 23:53
If you say yes to any of that stuff, you better make sure you realize that your gun rights are now in jeopardy and that you don’t have any privacy there between you and your doctor. That’s a joke. That died long ago. They use it to take your guns, and there’s a procedure that you’ll invoke for that. Then there’s also weapon forfeiture for domestic violence allegations, and there’s a procedure for that. If your gun is used criminally, there’s a forfeiture procedure for that. In that procedure, which is called a Chapter 64 Procedure, the court even said, here that wasn’t done. And what else did they rule about Chapter 64 procedures? That was another nice win. Go ahead, Lou, tell us.
Louis Nappen 24:39
That you would be entitled to a jury trial at that point, and I’d rather have and there’s times specifically where you feel you might get a fairer hearing from a citizenry that as a trier of fact rather than a perhaps biased judge.
Evan Nappen 24:56
What? A judge is bias? A judge that is anti-gun. Come on, that doesn’t really exist in Jersey. They’re all completely fair and vigorous supporters of our Second Amendment Right.
Louis Nappen 25:07
Well, this is something your listeners may not recognize in New Jersey. You do not elect your judiciary. They are appointed by Governors. And think about the Governors that we’ve had over the last 20 years who are sitting on the bench. Are they particularly pro-gun? Governors appointing pro-gun judiciary?
Evan Nappen 25:32
God, Lou, it’s almost like there’s an agenda out there or something. It’s weird.
Louis Nappen 25:35 Page – 9 – of 11
Yeah, so, you have to put it out there, and you have to think about those things in terms of what you’re facing. So, now interestingly, since they, as I already mentioned, said they can if they motion to get expungement, they can do that. They were already doing that on mental health expungements which they try to use against you, of course. It makes you question what is the value of expungements, which are supposed to relieve your rights?
Evan Nappen 26:02
Oh, this is really something that they went down that path. Because, you know, the whole expansion of expungements, the ability of New Jersey, which on one hand, I gotta say was actually, as much as Jersey sucks with their laws, this was one of the good laws. They were trying to expand, have expungement. And a large part of that was to address the racial inequities and injustice that have occurred from and through institutionalized racism in our criminal justice system. You can see it in the ratios, the ratios of black to white. They’re five to six times, almost six times, the number of blacks to whites that have criminal convictions, almost a six to one ratio there. And Hispanics, it’s two to one. Now, why is that? It’s because of how the system is designed. And you look at that and see this wide disparity. In order to address this institutionalized racism, this disparity, they allowed and made it easier to get expungements. So, individuals could relieve themselves of the convictions that make them second class citizens and take away their rights. And here, the court says, oh, well, guess what, you can open it up and use the expunged materials to deny Second Amendment rights.
Louis Nappen 27:30
Now, the racism doesn’t stop there. The racism doesn’t stop there in this opinion. Because in order to find public health, safety, welfare constitutional, they had to find under the Bruen standard historical tradition, in our nation’s historical tradition to deny certain types of people or certain people. In that sense, they had to figure that out as to whether a person that doesn’t have a per se disqualifier, but the only law they really cite here at all, is past histories of laws that barred, and this is what’s interesting.
Evan Nappen 28:06
So, wait. They’re relying on old laws to justify the new laws, which is essentially what Bruen requires. And what are the old laws that New Jersey is relying on to justify the new laws? Go ahead. Tell us. What are they?
Louis Nappen 28:21
They said, we’ve traditionally been allowed to discriminate against, for Second Amendment rights, different types of dangerous classes of people. And here’s the dangerous classes of people of the laws they are relying on. Native Americans should be disarmed. African Americans should be disarmed. Catholics, Quakers, Mennonites, and Moravians should be disarmed. And those who don’t take a loyal oath to the Crown or those who defend the Continental Congress. Because you had both sides going on at our nation’s founding. So, the irony is those are the types of people who are dangerous classes and because we could deny those types of people firearms, it’s okay to deny this individual.
Evan Nappen 29:09
They’re pursuing the tradition of racism in gun control to justify further racism in gun control. Page – 10 – of 11
Louis Nappen 29:19
That’s right. This is Dred Scott.
Evan Nappen 29:20
Louis Nappen 29:22
This is what Dred Scott. Remember, they were afraid that blacks would have firearms.
Evan Nappen 29:27
So, Lou, because of the Constitutional issue at stake here of rationalizing under Bruen with racist gun laws of the past to say this is fine. Our firm is taking this up to the New Jersey Supreme Court, right?
Louis Nappen 29:44
Yep. We’re going to the next level.
Evan Nappen 29:47
And depending on what happens there, we have no problem with going to the U.S. Supreme Court. I’m sure Judge Thomas would love to see an opinion where there is pure racism in gun laws being used to somehow justify racism in gun laws.
Louis Nappen 30:06
Evan Nappen 30:06
And taking away Second Amendment rights.
Louis Nappen 30:11
Speaking of ignoring Justice Thomas, they’re ignoring, they said that I only raised the balancing of the fact that the facial challenge of vagueness and overbreadth. They completely ignored and said it wasn’t worth even consideration of the fact that this is an unconstitutional balancing test. You are not allowed to balance a state interest, and this is interest to public health, safety, welfare. They didn’t even. They just somehow skipped over that challenge.
Evan Nappen 30:42
Oh, yeah. Well, that was convenient. Well, look, we’re, we’re about at the end here. And I just want to summarize. The best part about this win is simply this. If you’re denied your gun license, that doesn’t necessarily mean that you’re denied your ability to possess firearms. And this case stands for, in Jersey, a distinction between being licensed to acquire a firearm and being legal to possess a firearm. The two are not the same. They are not the same. There’s different criteria for being licensed versus being legal to possess. And here, it ends the practice, ends this atrocious practice, of compelling the sale of firearms on mere licensing matters without having a statutory forfeiture law of some sort that they’re relying upon to do it. It simply cannot be a summary execution, if you will, of your Second Amendment rights by a licensing judge. Fair enough. Page – 11 – of 11
Louis Nappen 31:55
Yeah, that’s all right. That’s the takeaway of the win here.
Evan Nappen 32:00
I agree. Well, I just want to say, and this is more true than ever. Gun laws do not protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 32:18
Gun Lawyer is a CounterThink Media production. The music used in this broadcast was managed by Cosmo Music, New York, New York. Reach us by emailing Evan@gun.lawyer. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.