In re the Application for a New Jersey Permit to Carry a Handgun by Pantano

60 A.3d 507, 429 N.J. Super. 478, 2013 WL 645534, 2013 N.J. Super. LEXIS 26
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 22, 2013
StatusPublished
Cited by8 cases

This text of 60 A.3d 507 (In re the Application for a New Jersey Permit to Carry a Handgun by Pantano) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Application for a New Jersey Permit to Carry a Handgun by Pantano, 60 A.3d 507, 429 N.J. Super. 478, 2013 WL 645534, 2013 N.J. Super. LEXIS 26 (N.J. Ct. App. 2013).

Opinion

The opinion of the court was delivered by

OSTRER, J.A.D.

Richard Pantano appeals from the trial court’s October 31, 2011 denial of his application for a permit to carry a firearm under N.J.S.A. 2C:58-4. The Manalapan Township Police Chief had approved Pantano’s application in December 2010 and the State appealed. In a written opinion, Judge Francis P. DeStefano concluded after a testimonial hearing that Pantano had not demonstrated “a justifiable need to carry a handgun.” N.J.S.A. 2C:58-4(d). Pantano asserts the court erred in finding no justifiable need, and, in the alternative, he argues the justifiable need requirement infringes his right to bear arms under the Second Amendment. U.S. Const, amend. II. We affirm.

I.

We first address Pantano’s challenge to the court’s finding there was no justifiable need. We discern the following facts from the record.

[481]*481Pantano owns a landscape supply business with annual gross receipts of $12 million, of which close to $2 million is paid in cash. At the hearing, Pantano testified about the typical transaction in his business:

[AJ contractor would come in and order, place an order for the materials he would need. Most of the time the materials are paver materials which are heavy, neighborhood of 2,000 pounds per pallet, so it’s unrealistic for the contractor to be able to pick up his material. So our delivery system is what we use to take the materials to the contractor.
Most of the contractors today are working on very tight budgets, and they’re working with cash much more than ever. So we are now delivering the product a lot of times after hours when the contractors receive their deposits from the homeowners, [who] tend to be home between 5:00 and 7:00 p.m.

Pantano explained that he personally delivered materials. He would exchange paperwork and receive cash payments, sometimes ranging between $7000 to $18,000, which he would count in front of the customer and the customer’s employees, some day-workers with whom even the customer was not familiar. He testified that while most of his deliveries were in Monmouth, Ocean and Middle-sex Counties, he traveled throughout the State and sometimes outside it. He sought the permit to protect himself—as opposed to his cash—from a potential robbery. His concern was heightened by the state of the economy; he believed people were more desperate and willing to resort to crime. He was also concerned because many individuals, some strangers, were aware of when and where he would be in possession of large amounts of cash, creating repeated opportunities for a robbery.

Pantano explained that his willingness to “work[] with the contractor” by accepting cash and making deliveries at the customers’ convenience, which many companies did not do, helped boost his business’s growth. He stated that if he required payment in advance, by non-cash means, or at his office after delivery, some customers "either would decline to do business with him or fail to pay him for the goods sold. He deposited cash at his bank as many as two or three times a day. Pantano asserted it would be impracticable to hire a security guard because he could not [482]*482predict when a contractor would call for an immediate delivery of supplies.

Pantano admitted that he had not been attacked nor had he been specifically threatened. However, his father was once the victim of an armed robbery and was stabbed.1 Pantano also testified about an apparent trespasser at his business four years earlier. It was dark, around 7:30 p.m., and he had returned from a delivery and a cash receipt. Pantano recounted:

I had just finished up my paperwork and one of my managers drove by and saw the lights on in the office so he had stopped in on me. As he approached the office he heal'd all kinds of scattling and stuff getting knocked over. At that point I happened to be walking out, and he said, Hey, hey, hey, someone’s behind the building.
Turns out there was somebody or persons apparently hiding behind the building, and when he approached, they were startled. They knocked over a whole bunch of material and fled. So we called Manalapan Police Department. They responded and they brought the dog out. The dog had gone on the scent trail, tracked it back through our nursery in the fields, and lost them somewhere.

Pantano testified that the police chief, who was a personal friend, had recommended he apply for the permit. “He actually was the one that told me I should apply. He understands my business, he’s seen it grow. He understands it. He knows me personally, and he recommended that I apply for a handgun permit.”

Judge DeStefano found that the nature of Pantano’s practice of receiving large quantities of cash under the circumstances did not create a justifiable need. The judge also relied on the regulations defining “justifiable need” to mean “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” See N.J.A.C. 13:54-2.4(d). Citing In re Preis, [483]*483118 N.J. 564, 573 A.2d 148 (1990), he explained “[generalized fears for personal safety are inadequate, as is the need to protect property alone.” The judge found the apparent trespassing incident, and the robbery and assault of Pantano’s father, did not alter his conclusion.

Petitioner has f[a]iled to provide the court with any specific threats, concerns, or previous attacks that constitute an “urgent need for self protection.” The incident that was alleged to occur four years ago is insufficient to establish a justifiable need to carry a handgun. It is unclear what the intentions of this alleged trespasser were and this Court is not going to base its analysis on purely speculative claims. Petitioner needs to provide specific threats and simply asserting that an unknown person was outside the building after business hours is not enough. In addition, petitioner’s concerns for his safety that stem from the unfortunate incident with his father do not rise to the level of a “justifiable need.” Petitioner’s concerns, although genuine, stem from the attack on his father. There is nothing to show that such attack is imminent or likely to happen to petitioner himself. Therefore, petitioner does not have any justifiable need to secure a permit to carry.

On appeal, Pantano argues the court erred in rejecting his claim of justifiable need. In particular, he argues the court should have deferred to the police chiefs decision to approve his application. We disagree.

We are bound to accept the trial court’s fact findings if supported by substantial credible evidence. In re Return of Weapons to J.W.D., 149 N.J. 108, 116-17, 693 A.2d 92 (1997). However, we review the trial court’s legal determinations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995); In re Sportsman’s Rendezvous Retail Firearms Dealer’s License, 374 N.J.Super.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
60 A.3d 507, 429 N.J. Super. 478, 2013 WL 645534, 2013 N.J. Super. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-application-for-a-new-jersey-permit-to-carry-a-handgun-by-pantano-njsuperctappdiv-2013.