IN THE MATTER OF THE APPLICATION OF RICHARD ANDREW MILLER FOR A PERMIT TO CARRY A HANDGUN (GPA-10-2020, SUSSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3524-19
IN THE MATTER OF
THE APPLICATION OF
RICHARD ANDREW MILLER
FOR A PERMIT TO CARRY
A HANDGUN
___________________________
Submitted March 10, 2021 – Decided May 7, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. GPA-10-2020.
Castano Quigley, LLC, attorneys for appellant
(Gregory J. Castano, Jr., on the briefs).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Richard Andrew Miller appeals the Law Division's order following an
evidentiary hearing denying his application for a limited-type permit to carry a
handgun when working security at religious services at his synagogue. Having
considered the arguments and applicable law, we affirm.
I
Miller is a ten-year member of a Chabad synagogue, Congregation Levi
Yitzchok (Congregation), located in Morristown, and volunteers on the
Congregation's security team during its religious services. On or about June 13,
2019, he filed an application with the New Jersey State Police to obtain a
concealed carry permit.
In accordance with N.J.S.A. 2C:58-4(c), the application had to be
accompanied by a written certification of justifiable
need to carry a handgun, which shall be under oath and,
in the case of a private citizen, shall specify in detail
the 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.
To comply, Miller's application referenced deadly and violent acts directed at
Jewish congregations in Pittsburgh, Boston, and Poway, CA, and stated that the
Congregation wanted him to legally carry a handgun "to protect the
[worshippers] of our synagogue while prayer services are under way."
The State Police approved Miller's application; thus, the trial court had to
determine if Miller had a "justifiable need" for a permit. N.J.S.A. 2C:58-4(d).
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The court shall issue the permit to the applicant if, but
only if, it is satisfied that the applicant is a person of
good character who is not subject to any of the
disabilities set forth in subsection c. of N.J.S.A. 2C:58-
3, that he is thoroughly familiar with the safe handling
and use of handguns, and that he has a justifiable need
to carry a handgun in accordance with the provisions of
[N.J.S.A. 2C:58-4(c)]. The court may at its discretion
issue a limited-type permit which would restrict the
applicant as to the types of handguns he may carry and
where and for what purposes the handguns may be
carried.
[N.J.S.A. 2C:58-4(d).]
At the February 19 evidentiary hearing, Miller declined the opportunity to
obtain counsel afforded by the court and decided to represent himself. In
addition to the deadly attacks on synagogues noted in his application, Miller
testified that anti-Semitic attacks in Brooklyn, Jersey City, Houston, and
Monsey, NY justified his need for a limited-type permit to provide his security
to the Congregation. According to Miller, the Congregation could not afford to
hire armed guards, and local police protection was limited to the occasional
parking of an empty patrol car at the synagogue. Upon the court's inquiry, Miller
stated that during the ten years he has been a member of the Congregation, there
have not been any threats of physical harm against the synagogue or its
worshippers. There were, however, regular occurrences of Jewish people
walking in the area being berated with the word, "Jew." Miller acknowledged
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there were no synagogue members threatened "through social media or any other
[similar] form of communication."
Miller also recounted two personal threats occurring at his home in Sussex
County. One time, an angry neighbor came onto his property but left after being
told to do so. Another time, he received phone calls from blocked numbers
stating, "We’re coming for you too."
In conclusion, Miller testified he wanted a carry permit due to the "very
large increase in the number of anti-Semitic actions taken to Jewish people in
the [recent two] years" and that he did not "feel like being a guinea pig” while
he is praying.
At the conclusion of the hearing, the court denied the application. In its
oral decision, the court initially noted that Miller's application was considered
based on the current law, not on the pending legislation he cited in an effort to
demonstrate there was a change in public sentiment towards guns. The court
determined "the [s]tandard of [j]ustifiable [n]eed [under N.J.S.A. 2C:58-4(d)] is
strict[;]" thus, there must be "specific threats . . . or previous attacks
demonstrating a special danger to the applicant’s life that cannot be avoided by
other means" to be granted a limited-type permit. Recognizing Miller's
application was based on the Congregation's request to have a security team
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member "possess a firearm while the religious services are taking place for
security[,]" the court held that in considering the application, there was no
"history of specific threats to this particular [s]ynagogue." The court expressed
concern regarding the numerous recent anti-Semitic tragic attacks but ruled that
because they did not occur at the Congregation or involve its worshippers, they
did not substantiate Miller's justifiable need.
II
In this appeal, Miller contends that because his application "is specifically
limited to a particular time and place and its purpose is to protect religious
worshippers from potential harm while they peaceably assemble, it qualifies for
approval" under N.J.S.A. 2C:58-4(d). He argues that "the ancient interpretation
of 'justifiable need' [articulated in Siccardi v. State, 59 N.J. 545, 557 (1971)]
must be re-examined and expanded to conf[o]rm to the realities of life in the 21 st
century." To support his argument, he again points to pending legislation
Assembly Bill No. 1255, which would allow a place of worship to have "one
person . . . carry [a] handgun during religious services" for security purposes.
"The permit to carry a gun is the most closely-regulated aspect" of the
"careful grid" of New Jersey's gun-control laws. In re Preis, 118 N.J. 564, 568
(1990) (quoting State v. Ingram, 98 N.J. 489, 495 n.1, (1985)). Under the rule
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established by our Supreme Court in Siccardi, 59 N.J. at 557, and reaffirmed in
Preis, 118 N.J. at 571, an applicant must "establish an urgent necessity for
carrying guns for self-protection" under the statute. "The requirement is of
specific threats or previous attacks demonstrating a special danger to the
applicant's life that cannot be avoided by other means." Preis, 118 N.J. at 571(citations omitted). The law is well settled that "[g]eneralized fears for personal
safety are inadequate[]" to establish the need for a carry-permit in this State.
Ibid.; see also In re Wheeler, 433 N.J. Super. 560, 614 (App. Div. 2013). The
applicant must show an objective need for the defensive use of a handgun to
obtain a carry permit. Wheeler, 433 N.J. Super. at 614. The court must consider
justifiable need on a case-by-case basis. Id. at 579. The justifiable need
requirement of N.J.S.A. 2C:58-4(d) has been found constitutional by the federal
court in Drake v. Filko, 724 F.3d 426, 439 (3d Cir. 2013), and by this court in
Wheeler, 433 N.J. Super. at 615-16.
A trial court's findings regarding the denial of an application to carry a
handgun in public are binding on appeal when supported by adequate,
substantial, credible evidence. In re Application of Borinsky, 363 N.J. Super.
10, 23 (App. Div. 2003). Our review of the trial court's legal conclusions, of
course, is plenary. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
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However, we are not bound by the court's evaluation of whether an applicant
met the "justifiable need to carry a handgun" standard of N.J.S.A. 2C:58-4,
which we review de novo. Borinsky, 363 N.J. Super. at 23-24.
Considering these standards, we find no basis to question the trial court's
conclusion that Miller failed to establish justifiable need for a limited-type
permit. Miller's reliance upon anti-Semitic attacks in other communities to
justify his application is insufficient. He failed to show that there were specific
threats indicating a special danger to the Congregation's worshippers during
their services. We place no significance on his reference to pending legislation
that may in the future allow him to receive a gun permit to provide security.
Based upon the current law, Miller's application was properly denied.
Affirmed.
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