IN THE MATTER OF THE APPLICATION OF THOMAS K. DANZI (18-008, CAPE MAY COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 26, 2020
• Docket: A-2792-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2792-18T4

IN THE MATTER OF THE APPLICATION OF THOMAS K. DANZI. _________________________

Submitted February 24, 2020 – Decided March 26, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. 18-008.

Evan F. Nappen, PC, attorneys for appellant Thomas K. Danzi (Louis P. Nappen, on the brief).

Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent State of New Jersey (Michelle L. DeWeese, First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Thomas K. Danzi appeals from an order denying his application to carry

a handgun. The police chief denied the application because Danzi—who was

retired at the time—could not demonstrate a justifiable need, a conclusion reached by the judge and unchallenged on appeal. We affirm for the reasons

expressed by the judge.

On August 3, 2018, Danzi wrote the chief of police to apply for a permit

to carry, stating he splits his time residing in New Jersey and Pennsylvania. The

State contends that contrary to Danzi's representations, he did not reside in New

Jersey. To support that contention, the State points out Danzi's application

reflected that he used a Pennsylvania driver's license, he produced a residential

deed with a Pennsylvania address, and he previously obtained a permit to carry

a handgun in Pennsylvania⸺a permit that he could not have obtained unless he

resided in Pennsylvania. Although the judge did not make any findings about

where Danzi resided, he evaluated the chief's denial of the application as if

Danzi resided in both New Jersey and Pennsylvania.

In the letter to the chief, Danzi explained that twelve years ago, a

Pennsylvania judge appointed him to serve on a Pennsylvania prison board.

Danzi represented that this appointed position required him to provide oversight

for prison operations, policies, and procedures. Danzi requested permission to

carry his firearm in New Jersey; he then followed up by filling out the

application for a permit to carry. The application contained three boxes related

to employment: Box nine entitled "Name of Employer"; box ten entitled

A-2792-18T4 2 "Employer's Address"; and box eleven entitled "Occupation." In box nine,

Danzi represented that he was "Retired." Danzi left the other two boxes (ten

and eleven) blank, consistent with his representation that he was retired.

On appeal, Danzi concedes he cannot show justifiable need under N.J.S.A.

2C:58-4(c) and (d) and N.J.A.C. 13:54-2.4(d), and instead challenges the

constitutionality of the carry permit scheme:

POINT I

NEW JERSEY'S CARRY PERMIT SCHEME IS UNCONSTITUTIONAL AS APPLIED TO [DANZI] BECAUSE IT DENIES HIM THE ABILITY TO LAWFULLY TRANSPORT HIS HANDGUN TO AND FROM HIS RESIDENCE IN NEW JERSEY AND HIS WORKPLACE IN PENNSYLVANIA.

POINT II

NEW JERSEY'S "JUSTIFIABLE NEED" STANDARD VIOLATES THE SECOND AMENDMENT.

POINT III

THE COURT BELOW ERRED BY DENYING [DANZI] EQUAL PROTECTION UNDER THE LAW, AND THE DENIAL OFFENDS FUNDAMENTAL FAIRNESS.

We affirm the denial of Danzi's application to carry a handgun substantially for

the reasons given by the judge—specifically that Danzi failed to show justifiable

A-2792-18T4 3 need. We conclude Danzi's arguments on appeal are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these

remarks.

As to Point I, Danzi contends⸻for the first time⸺that the carry permit

scheme denies him his right to travel and is therefore inconsistent with the

Commerce Clause. Although we decline to address this issue, as Danzi did not

explicitly raise it before the chief or judge, Nieder v. Royal Indem. Ins. Co., 62

N.J. 229, 234 (1973); State v. Robinson, 200 N.J. 1, 20 (2009), we note "[t]he

Constitution protects the right to travel, not the right to travel armed." N.Y.

State Rifle & Pistol Ass'n v. City of New York, 883 F.3d 45, 67 (2d Cir. 2018),

cert. granted, ___ U.S. ___, 139 S. Ct. 939 (2019).

As to Point II, Danzi argues the "justifiable need" requirements of the

statute and regulation violate the Second Amendment. But such a challenge has

been flatly rejected by this and other courts. See Rogers v. Grewal, ___ F.3d

___ (D.N.J. 2018); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); In re Wheeler,

433 N.J. Super. 560 (App. Div. 2013). There is no basis to depart from this

well-reasoned precedent.

And as to Point III, Danzi raises for the first time that he should be granted

a permit to carry a handgun "in the interest of fundamental fairness and pursuant

A-2792-18T4 4 to equal protection." He argues he is being treated differently than New Jersey

corrections officers. Although we decline to address this argument as Danzi did

not explicitly raise it before the chief or judge, Nieder, 62 N.J. at 234; Robinson,

200 N.J. at 20, Danzi is not employed in this state—or any state—as a

corrections officer. Rather, the judge found, as Danzi represented, that Danzi

was retired⸻a finding that remains supported by credible evidence.

Affirmed.

A-2792-18T4 5