Opinion
DOCKET NO. A-3158-11T3
02-05-2013
IN THE MATTER OF THE APPEAL OF THE DENIAL OF AN APPLICATION FOR A FIREARMS PURCHASER IDENTIFICATION CARD OF JACOB MORRIS.
Law Offices of Jef Henninger, attorneys for appellant Jacob Morris (Jef Henninger, on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Barbara Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Law Offices of Jef Henninger, attorneys for appellant Jacob Morris (Jef Henninger, on the briefs).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent State of New Jersey (Barbara Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Jacob Morris appeals from the trial court's denial of his application for a firearms purchaser identification card (FPIC), which followed denial by the local police chief. As the court reached its decision without conducting an evidentiary hearing, we are constrained to reverse and remand.
Morris submitted his application to the Wall Township Police Department for a FPIC on September 20, 2010, shortly before his twenty-third birthday. Among the questions he answered on the form was, "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?" The form asked for details if the answer was yes. Morris responded no.
Morris also applied for a permit to purchase a handgun, which the police chief also denied. Morris did not appeal that denial to the Superior Court.
The police investigation discovered that Morris had received mental health treatment from a licensed clinical social worker (LCSW) at Shore Psychology Associates LLC between October 4, 2007 and January 31, 2008. Morris consented to the release of his mental health records in response to police demand. See N.J.A.C. § 13:54-1.4(d) (stating that any applicant for a FPIC shall sign "a consent for mental health records search form designated SP 66"); N.J.S.A. 45:15BB-13 (stating a licensed or certified social worker "shall not be required to disclose any confidential information that the social worker may have acquired from a client or patient . . . unless . . . [a] patient or client agrees to waive the privilege[.]"); N.J.R.E. 518 (same).
The State Police form states that failure to consent to release of mental health records requires denial of the application. See N.J. State Police, Consent for Mental Health Records Search (SP-66) available at http://www.state.nj.us/njsp/info/ forms.html.
Morris attended counseling sessions sometimes as frequently as weekly, until he decided he no longer needed treatment in January 2008. Given our disposition, we need not address in detail the diagnosis nor symptoms reported in his patient records, except to observe that they reflect treatment of a "mental or psychiatric condition," as referenced in the FPIC application, albeit by a LCSW. Also, on July 12, 2007, Morris had been arrested in Maryland for possession of marijuana and drug paraphernalia. He told his social worker he received pretrial intervention and forty hours of community service.
In the course of the police investigation of Morris's application, an officer was unable to speak to the social worker who treated Morris, because she left the practice group. According to the officer's report, a Dr. Reilly from the practice reviewed Morris's records and recommended that he be denied the FPIC.
On December 14, 2010, the Wall Township Police Chief denied Morris's FPIC application on the grounds he falsified his application by denying, in his response to question 26, that he had been treated by a doctor or psychiatrist for a mental or psychiatric condition. See N.J.S.A. 2C:58-3(c)(3) (stating "No handgun purchase permit or firearms purchaser identification card 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").
Morris filed an appeal with the Superior Court. In support of his appeal, he submitted a July 4, 2011 evaluation by psychiatrist Peter M. Crain, M.D. According to Dr. Crain, the mental health condition diagnosed by the LCSW was in remission since early 2008. The psychiatrist also diagnosed that Morris's abuse of alcohol and marijuana was in remission since 2008. Dr. Crain opined Morris was "an emotionally stable individual" and "does not suffer from a mental disorder that would interfere or handicap him in the handling of firearms."
The court conducted a brief oral argument on the appeal, without hearing testimony or formally admitting any documents in evidence. However, it appears the court had before it the 2007-2008 treatment records, the 2011 psychiatric evaluation, and the written report of the police investigation of Morris's application. Morris's attorney argued the police's denial of his client's application was improper because the statute only refers to treatment by a medical doctor or psychiatrist, and he had been treated by a LCSW.
In a written decision, the trial judge denied the application. The trial judge agreed that, given the restricted wording of the form, he could not find that Morris's failure to disclose his outpatient treatment by a social worker was a knowing falsification of the form. Nonetheless, the court concluded that Morris's mental health history supported a finding that "issuance would not be in the interest of the public health, safety or welfare." N.J.S.A. 2C:58-3(c)(5). The court assigned greater weight to the treatment records, which "revealed a number of emotional issues that petitioner dealt with on a daily basis," than to Dr. Crain's opinion, which was based on a single evaluative session.
Notwithstanding the form's limitation to doctors and psychiatrists, the law authorizes other licensed professionals to treat persons for mental disorders. Without engaging in a comprehensive survey of the law, we note a LCSW, and a licensed social worker (LSW) if supervised by an LCSW, may engage in psychotherapeutic counseling. See N.J.S.A. 45:15BB-3 (defining "psychotherapeutic counseling"); N.J.A.C. 13:44G-3.1 (authorizing LCSW to practice psychotherapeutic counseling), -3.2 (authorizing LSW to do the same under LCSW supervision). Similarly, certain licensed professional counselors, who are designated clinical mental health counselors, may engage in "the preliminary diagnosis of mental and emotional disorders, psychoeducational techniques aimed at the prevention of these disorders, consultations, and clinical research into more effective treatment modalities." N . J . S . A . 45:8B-44. See also N . J . S . A . 45:8B-36 (defining counseling). Of course, licensed psychologists are authorized to engage in the "assessment, counseling or psychotherapy" of persons with "personality disturbances and maladjustments." N . J . S . A . 45:14B-2. We shall forward a copy of this opinion to the Attorney General for consideration and any action he thinks appropriate.
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On appeal, Morris raises three points. He asserts the court erred by failing to conduct a testimonial hearing. He also argues that a court may not rely on the general "public health, safety or welfare" ground to deny an application based on mental health history if the applicant does not satisfy the specific basis for denial of certain persons who have been "confined for a mental disorder." The specific provision states that a permit shall not be issued
to any person who has ever been confined for a mental disorder . . . unless [he or she] produces a certificate of a medical doctor or psychiatrist licensed in New Jersey or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms[.]Morris also argues that even if the "public health, safety or welfare" provision is considered, the court erred in rejecting Dr. Crain's opinion and denying the application.
[N.J.S.A. 2C:58-3(c)(3).]
The State responds that the court was authorized to rely upon the "public health, safety or welfare" prong of the statute, and the evidence supported the court's finding. However, the State concedes that an evidentiary hearing should have been conducted.
We agree that the court erred in failing to conduct an evidentiary hearing. In In re Dubov, 410 N.J. Super. 190 (App. Div. 2009), we reviewed the hearing requirement, which the Court established in Weston v. State, 60 N.J. 36 (1972). Particularly given the ex parte nature and "informality of a chief of police's initial consideration of an application," Dubov supra, 410 N.J. Super. at 200, the reviewing court must conduct a de novo hearing which "'contemplates introduction of relevant and material testimony and the application of an independent judgment to the testimony by the reviewing court.'" Ibid. (quoting Weston, supra, 60 N.J. at 45). Although the court is not bound by the police chief's determinations in its de novo review, the court must give appropriate weight to "the local interest factor to the extent legitimately reflected in the police chief's denial, as well as for the chief's 'investigative experience and . . . expertise[.]'" In re Application of Boyadjian, 362 N.J. Super. 463, 476 (App. Div. 2003) (quoting Weston, supra, 60 N.J. at 46).
The Weston Court described the procedure for the hearing:
At the outset of the County Court hearing . . . orderly and logical procedure calls for introduction through the testimony of the applicant of his application for the identification card, the rejection thereof and the reasons given by the Chief, if any.As in Dubov, the court here erred by deciding the appeal "based solely on documentary evidence." 410 N . J . Super. at 201. A remand therefore is required.
At this point he may be subjected to cross-examination by counsel for the Chief. Thereafter, the Chief should proceed with the evidence on which his denial was predicated. Ordinarily, this would include presentation of his own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional persons who furnished information which influenced the action taken by the Chief, and any admissible documentary evidence which played a part in the adverse decision. Upon completion of the Chief's proof, the applicant may offer relevant rebuttal testimony.
[Weston, supra, 60 N.J. at 46.]
At the evidentiary hearing, the court may consider hearsay evidence, so long as there is a " 'residuum of legal and competent evidence in the record' " to support the court's decision. Dubov, supra, 410 N . J . Super. at 202 (citation omitted).
We only reiterate the Court's directive in Weston that the Chief's evidence in support of the denial of a gun purchaser permit "[o]rdinarily . . . would include presentation of his own testimony, that of the members of the police department who made the investigation and furnished reports to the Chief, any available lay or professional person[s] who furnished information which influenced the action taken by the Chief, and any admissible
documentary evidence which played a part in the adverse decision.".
[Id. at 203 (quoting Weston, supra, 60 N.J. at 46).]
Given our reversal on procedural grounds, we decline to address the remaining issues on Morris's appeal. Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION