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Kates Nussman Rapone Ellis & Farhi, LLP

Not Guilty, But No Guns

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Last month, a New Jersey appeals court ruled that a person accused of domestic violence but not found guilty can still be denied permission to purchase and keep a gun.

This decision followed an appeal by a man, identified only as Z.L., whose application for a permit to purchase a gun was rejected by the police chief in Aberdeen. After Z.L. submitted his application, a detective ran a background check that found that he had been arrested for domestic violence after his wife called the police and charged him with simple assault in 1998. Although the charges were dropped, the detective's background check also showed that the police were called to his residence for domestic dispute complaints by his wife on 5 other occasions between 2003 and 2011, The police department's reasoning for rejecting Z.L.'s application was because their investigation "revealed a past history of domestic violence. This in itself may indicate a public safety concern." He then appealed.

At the first level of the appeal, Z.L. essentially confirmed the core facts of the 1998 domestic violence complaint and the 5 other incidents. He admitted to striking his wife in 1998, but testified that it was unintentional and that he was never convicted anyway. He also told the Court that the disputes the police responded to were ordinary arguments between spouses and none involved violence or threats. The judge denied his appeal because, taking into account all of the domestic disputes incidences, it would be a public safety concern to add a gun to the home of an already volatile relationship.

On appeal, Z.L. claimed that the first judge gave improper consideration to his history of domestic disputes.

New Jersey's Gun Control Law states that handgun permits shall not be issued "[t]o any person where the issuance would not be in the interest of the public health, safety, or welfare." Using this part of the law, the appeals court ruled in an earlier case that the dismissal of criminal charges does not prevent a court from considering the underlying facts of those criminal charges in deciding whether a person can or cannot buy a firearm.

In this case, the court decided that it was proper for the police department to reject Z.L's application because the law allows the denial of a permit if the underlying facts of any arrests or reported domestic disputes support a public safety disqualification.

Some may say that the ruling in this case infringes upon a citizen's Second Amendment "right to bear arms." However, in 1971, the New Jersey State Supreme Court decided that the State Legislature could pass gun-control laws in the interest of public safety. That means that the Gun Control Law here is constitutional, because it presumes the right to bear arms, except for good cause where public health, safety or welfare might be threatened. With the collaboration of Kieu-Nhi Le, Rutgers School of Law Newark candidate for a JD degree in May 2016. She is the Managing Business Editor of the Rutgers Computer and Technology Law Journal.

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