Muller v. Maenza (NJ)

[05FLHT]

http://www.saf.org/viewpr-new.asp?id=346

 

For Immediate Release: 11/22/2010

 

BELLEVUE, WA – The Second Amendment Foundation today filed suit in U.S. District Court for the District of New Jersey against several New Jersey officials for deprivation of civil rights under color of law.

 

SAF is joined in the lawsuit by the Association of New Jersey Rifle & Pistol Clubs, Inc. and six private citizens whose applications for permits to carry have been denied generally on the grounds that they have not shown a “justifiable need.” One of the plaintiffs is a kidnap victim, another is a part-time sheriff’s deputy, a third carries large amounts of cash in his private business and another is a civilian employee of the FBI in New Jersey who is fearful of attack from a radical Islamic fundamentalist group. Plaintiffs are represented by attorneys David D. Jensen and Robert P. Firriolo with the firm of Duane Morris, LLP in Newark.

 

Named as defendants in the case are three Superior Court judges, Philip J. Maenza, Morris County; Rudolph A. Filko, Passaic County and Edward A. Jerejian of Bergen County, plus Col. Rick Fuentes, superintendent of the State Police, Hammonton Police Chief Frank Ingemi and New Jersey Attorney General Paula T. Dow.

 

“Law-abiding New Jersey citizens have been arbitrarily deprived of their ability to defend themselves and their families for years under the state’s horribly-crafted laws,” said SAF Executive Vice President Alan M. Gottlieb. “The law grants uncontrolled discretion to police chiefs and other public officials to deny license applications even in cases where the applicant has shown a clear and present danger exists.

 

“If being a kidnap victim, or part-time law enforcement officer, or the potential target of a known radical group does not clearly demonstrate a justifiable need,” he continued, “the defendants need to explain what would. Do citizens need guns to their heads or knives to their throats before the state considers their need to be justified?

 

“Supreme Court rulings have made it clear that the Second Amendment prohibits states from completely banning the carrying of handguns for self-defense,” Gottlieb said. “Nor may states deny citizens the right to carry handguns in non-sensitive places or deprive them of the right to carry in an arbitrary and capricious manner. That’s what is happening today in New Jersey, and we intend to stop it.”

 

A better copy of the complaint - http://saf.org/legal.action/nj.lawsuit/complaint.pdf

 

 

~ Please, no all caps thread titles. ~ Templar

[05FLHT]

Among at least three judges and the NJ State police, look who else is included in the suit -

 

26. Defendant Attorney General Paula T. Dow is sued in her official capacity as the Attorney General of the State of New Jersey, responsible for executing and administering the laws and policies at issue in this lawsuit.

 

I'm still reading, I'm sure I'll have more to comment.

 

Edited to add -

 

CONSTITUTIONAL PROVISIONS

90. The Second Amendment provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const. Amndt. II.

91. The Second Amendment guarantees individuals a fundamental right to carry operable handguns in non-sensitive public places for the purpose of self defense.

92. The Fourteenth Amendment incorporates the requirements of the Second Amendment against the States and their units of local government. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3042 (Jun. 28, 2010).

93. The States retain the ability to regulate the manner of carrying handguns within constitutional parameters; to prohibit the carrying of handguns in specific, narrowly defined sensitive places; to prohibit the carrying of arms that are not within the scope of Second Amendment protection; and, to disqualify specific, particularly dangerous individuals from carrying handguns.

94. The States may not completely ban the carrying of handguns for self defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.

 

This part is a familiar argument made on this site...and will be interesting to see how it plays out.

 

Edited -

 

FIRST CAUSE OF ACTION

N.J. STAT. § 2C:58-4 AND N.J. ADMIN. CODE §§ 13:54-2.3, -2.4, -2.5, AND -2.7 VIOLATE THE SECOND AND FOURTEENTH AMENDMENTS BECAUSE THEY VEST UNCONTROLLED DISCRETION IN THE HANDS OF STATE OFFICIALS

 

101. N.J. Stat. § 2C:58-4© and N.J. Admin. Code § 13:54-2.5 are facially invalid in that they vest Chief Police Officers and the Superintendent of the New Jersey State Police with uncontrolled discretion to grant or deny approval of license applications.

102. N.J. Stat. § 2C:58-4(d) is facially invalid in that it vests the Superior Court with uncontrolled discretion to issue or refuse to issue licenses.

103. N.J. Stat. § 2C:58-4(d) and N.J. Admin. Code § 13:54-2.7( are facially invalid in that they vest the Superior Court with uncontrolled discretion to limit or restrict licenses.

104. N.J. Admin. Code §§ 13:54-2.3(a) and 2.4(d)(1) are facially invalid in that they vest Chief Police Officers, the Superintendent of the New Jersey State Police, and the Superior Court with uncontrolled discretion to withhold approval of license applications and licenses.

105. The invalidities of the aforesaid statute and regulations, and Defendants’ application of same, infringe Plaintiffs’ Second and Fourteenth Amendments right and damage Plaintiffs in violation of 42 U.S.C. § 1983.

 

This part is BIG! Plaintiff's are arguing the statue is 'facially' invalid (flat out wrong)!

 

Edited - SECOND CAUSE OF ACTION

N.J. STAT. § 2C:58-4 AND N.J. ADMIN. CODE § 13:54-2.4 VIOLATE THE SECOND AND FOURTEENTH AMENDMENTS BECAUSE THE EXERCISE OF FUNDAMENTAL CONSTITUTIONAL RIGHTS CANNOT BE CONDITIONED ON “JUSTIFIABLE NEED” OR “URGENT NECESSITY”

 

Nice one, two punch!

 

I need time to digest and re-read. More comments sure to follow.

[THE KING]

AND Here we sit in Illinois once again, waiting for the legislators to give us permission to carry weapons for self defense !!

[TomKoz]

If this wins - is it an automatic for Illinois residents??

[Hatchet]

If this wins - is it an automatic for Illinois residents???

only if it goes to SCOTUS and they say so... otherwise if it passes locally, then we mite have some extra ammo to use in illinois...

[xbaltzx]

If this wins - is it an automatic for Illinois residents???

I remember Todd or someone saying that it's non binding for IL but could be referenced if such a case is brought in IL.

[abolt243]

If this wins - is it an automatic for Illinois residents???

I remember Todd or someone saying that it's non binding for IL but could be referenced if such a case is brought in IL.

 

 

There ain't nothing automatic. Even with a Supreme court decision, the state law would still stand and would have to be changed. Lots of ways to get that done, some of them voluntarily and fairly quickly, some only after another court order, and foot dragging by lawmakers/mayors/governors/judges. Witness the McDonald decision.

 

AB

[kurt555gs]

Having to show a justifiable need to carry a weapon is the same as having to show a justifiable need to vote.

 

(I think I posted this before, and it disappeared)

[05FLHT]

Well, I have to say I woke up rather exited this morning. To those wondering if this case will have direct effect on Illinois, unfortunately it won't unless it is appealed to and decided by the SCOTUS. Otherwise, the case is only 'persuasive' precedent for IL, as NJ is located in the 3rd Circuit, Illinois is in the 7th. What is exiting about this case is the fact that State officials are being sued in their official capacity for conspiring to willfully deprive citizens of a fundamental right protected by the Second and Fourteenth Amendment of the United States Constitution. This should be a MAJOR wake up call for Illinois officials. YOU ARE NOT IMMUNE AND CANNOT HIDE BEHIND THE COLOR OF LAW!

 

SAF is also pushing the issue of the Second Amendment to the forefront of this case. The main argument is that the Second Amendment guarantees citizens not prohibited from possessing firearms, the ability to carry firearms outside of the home for the fundamental right of self defense.

[05FLHT]

If this wins - is it an automatic for Illinois residents???

I remember Todd or someone saying that it's non binding for IL but could be referenced if such a case is brought in IL.

 

 

There ain't nothing automatic. Even with a Supreme court decision, the state law would still stand and would have to be changed. Lots of ways to get that done, some of them voluntarily and fairly quickly, some only after another court order, and foot dragging by lawmakers/mayors/governors/judges. Witness the McDonald decision.

 

AB

 

With all the carry cases that have been filed (unfortunately though, none in the 7th circuit) Illinois better get is behind in line and enact some form of RTC. Otherwise, Chicago may just have constitutional carry shoved down its throat. It is more than clear in the Heller decision that the right to bear arms extends outside of the home, or why in the world would we even have the issue of 'sensitive' places?

[Molly B.]

AND Here we sit in Illinois once again, waiting for the legislators to give us permission to carry weapons for self defense !!

And once again I repeat we are not sitting here in IL waiting on anything. We continue the battle on the judicial, legislative, and electoral fronts. ALL three fronts.

 

LOL - don't make me come add that as another tat so you'll remember!

[Lou]

 

 

And once again I repeat we are not sitting here in IL waiting on anything. We continue the battle on the judicial, legislative, and electoral fronts. ALL three fronts.

 

LOL - don't make me come add that as another tat so you'll remember!

Molly, I love your style!

[Sigma]

is everyone here a member of SAF. Im sure you will be happy when they win a ruling in Illinois but in the mean time money talks

[Howard Roark]

is everyone here a member of SAF. Im sure you will be happy when they win a ruling in Illinois but in the mean time money talks

 

I just made a donation to SAF by anti-gun PayPal (lol!). Wow, this SAF lawsuit complaint is full of win. The complaint is worth reading just for the individual plaintiff's stories. SAF picks winner plaintiffs and what is most awesome about this suit is the all-in, 100% strategy for full restoration of the right to carry. Sure, I wish this case were here in Illinois, with plaintiffs from among IllinoisCarry members (perhaps we'll get to that)... but this NJ case is going to be thrilling to watch unfold. Too bad the wheels of justice grind so slowly...

[THE KING]

AND Here we sit in Illinois once again, waiting for the legislators to give us permission to carry weapons for self defense !!

And once again I repeat we are not sitting here in IL waiting on anything. We continue the battle on the judicial, legislative, and electoral fronts. ALL three fronts.

 

LOL - don't make me come add that as another tat so you'll remember!

 

Just my level of frustration showing again.

 

I guess just watching and hearing every other state making progress in an area where it seems that we are continually butting our heads against the wall is frustrating to say the least.

 

What continues to amaze me is how this states officials continue to try and ignore the rulings in the recent court cases. The written opinions are as clear as they can be, but they still want to interpret them in their own way. Some how or some way, these officials need to be held accountable.

[05FLHT]

I guess just watching and hearing every other state making progress in an area where it seems that we are continually butting our heads against the wall is frustrating to say the least.

 

With all the carry cases pending across the country odds are the SCOTUS will need to take up and decide the issue. Speaking of which, I cannot believe there has not been a ruling on the msj in Palmer. The judge must be going for some kind of record, instead of doing his job and setting the record straight.

 

What continues to amaze me is how this states officials continue to try and ignore the rulings in the recent court cases. The written opinions are as clear as they can be, but they still want to interpret them in their own way. Some how or some way, these officials need to be held accountable.

 

I have faith, although without any direct threat to the status quo here in Illinois it may be awhile. This may all end up bitting them in the butt though. A SCOTUS ruling on a carry case may lend the FOID to be a defacto carry permit. $10 for 10 years, no training required.

[ishmo]

I guess just watching and hearing every other state making progress in an area where it seems that we are continually butting our heads against the wall is frustrating to say the least.

 

With all the carry cases pending across the country odds are the SCOTUS will need to take up and decide the issue. Speaking of which, I cannot believe there has not been a ruling on the msj in Palmer. The judge must be going for some kind of record, instead of doing his job and setting the record straight.

 

What continues to amaze me is how this states officials continue to try and ignore the rulings in the recent court cases. The written opinions are as clear as they can be, but they still want to interpret them in their own way. Some how or some way, these officials need to be held accountable.

 

I have faith, although without any direct threat to the status quo here in Illinois it may be awhile. This may all end up bitting them in the butt though. A SCOTUS ruling on a carry case may lend the FOID to be a defacto carry permit. $10 for 10 years, no training required.

That my friend is a very positive thought

[THE KING]

I guess just watching and hearing every other state making progress in an area where it seems that we are continually butting our heads against the wall is frustrating to say the least.

 

With all the carry cases pending across the country odds are the SCOTUS will need to take up and decide the issue. Speaking of which, I cannot believe there has not been a ruling on the msj in Palmer. The judge must be going for some kind of record, instead of doing his job and setting the record straight.

 

What continues to amaze me is how this states officials continue to try and ignore the rulings in the recent court cases. The written opinions are as clear as they can be, but they still want to interpret them in their own way. Some how or some way, these officials need to be held accountable.

 

I have faith, although without any direct threat to the status quo here in Illinois it may be awhile. This may all end up bitting them in the butt though. A SCOTUS ruling on a carry case may lend the FOID to be a defacto carry permit. $10 for 10 years, no training required.

That my friend is a very positive thought

 

BOY WOULDN'T THAT BE NICE

[05FLHT]

Copy of Proposed Joint Schedule for (accelerated) Resolution attached.

 

• Plaintiffs will move for summary judgment no later than December 20, 2010;

• Defendants will oppose the summary judgment motion and cross-move to dismiss no later than January 26, 2011;

• Plaintiffs will reply in support of summary judgment and oppose Defendants’ cross- motion no later than February 16, 2011; and

• Defendants will submit a reply in support of their cross-motion no later than March 9, 2011.

 

This case has the possibility of being decided before Palmer.

Muller - Proposed Joint Schedule for Resolution.PDF

[Sigma]

Nor may states deny citizens the right to carry handguns in non-sensitive places or deprive them of the right to carry in an arbitrary and capricious manner. Thats what is happening today in New Jersey Illinois, and we intend to stop it.

[Ashrak]

Among at least three judges and the NJ State police, look who else is included in the suit -

 

26. Defendant Attorney General Paula T. Dow is sued in her official capacity as the Attorney General of the State of New Jersey, responsible for executing and administering the laws and policies at issue in this lawsuit.

 

I'm still reading, I'm sure I'll have more to comment.

 

Edited to add -

 

CONSTITUTIONAL PROVISIONS

90. The Second Amendment provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const. Amndt. II.

91. The Second Amendment guarantees individuals a fundamental right to carry operable handguns in non-sensitive public places for the purpose of self defense.

92. The Fourteenth Amendment incorporates the requirements of the Second Amendment against the States and their units of local government. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3042 (Jun. 28, 2010).

93. The States retain the ability to regulate the manner of carrying handguns within constitutional parameters; to prohibit the carrying of handguns in specific, narrowly defined sensitive places; to prohibit the carrying of arms that are not within the scope of Second Amendment protection; and, to disqualify specific, particularly dangerous individuals from carrying handguns.

94. The States may not completely ban the carrying of handguns for self defense, deny individuals the right to carry handguns in non-sensitive places, deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns that are inconsistent with the Second Amendment.

 

This part is a familiar argument made on this site...and will be interesting to see how it plays out.

 

Edited -

 

FIRST CAUSE OF ACTION

N.J. STAT. § 2C:58-4 AND N.J. ADMIN. CODE §§ 13:54-2.3, -2.4, -2.5, AND -2.7 VIOLATE THE SECOND AND FOURTEENTH AMENDMENTS BECAUSE THEY VEST UNCONTROLLED DISCRETION IN THE HANDS OF STATE OFFICIALS

 

101. N.J. Stat. § 2C:58-4© and N.J. Admin. Code § 13:54-2.5 are facially invalid in that they vest Chief Police Officers and the Superintendent of the New Jersey State Police with uncontrolled discretion to grant or deny approval of license applications.

102. N.J. Stat. § 2C:58-4(d) is facially invalid in that it vests the Superior Court with uncontrolled discretion to issue or refuse to issue licenses.

103. N.J. Stat. § 2C:58-4(d) and N.J. Admin. Code § 13:54-2.7( are facially invalid in that they vest the Superior Court with uncontrolled discretion to limit or restrict licenses.

104. N.J. Admin. Code §§ 13:54-2.3(a) and 2.4(d)(1) are facially invalid in that they vest Chief Police Officers, the Superintendent of the New Jersey State Police, and the Superior Court with uncontrolled discretion to withhold approval of license applications and licenses.

105. The invalidities of the aforesaid statute and regulations, and Defendants’ application of same, infringe Plaintiffs’ Second and Fourteenth Amendments right and damage Plaintiffs in violation of 42 U.S.C. § 1983.

 

This part is BIG! Plaintiff's are arguing the statue is 'facially' invalid (flat out wrong)!

 

Edited - SECOND CAUSE OF ACTION

N.J. STAT. § 2C:58-4 AND N.J. ADMIN. CODE § 13:54-2.4 VIOLATE THE SECOND AND FOURTEENTH AMENDMENTS BECAUSE THE EXERCISE OF FUNDAMENTAL CONSTITUTIONAL RIGHTS CANNOT BE CONDITIONED ON “JUSTIFIABLE NEED” OR “URGENT NECESSITY”

 

Nice one, two punch!

 

I need time to digest and re-read. More comments sure to follow.

I guess maybe I wasn't so crazy in going after Lisa directly after all.....

 

Every IGOLD we have our backs facing the wrong direction because the Chicago controlled legislature refuses to relent before us, our rights or even multiple Supreme Court decisions and the Governor has said flatly, again and again, that he will not sign carry legislation. We should turn around 180 degrees and line up to ask to see Lisa and deliver a letter (like I do every year)when that request is rebuffed (as mine is every year).

 

We all gather inside the Capital Building and head to legislators offices in both houses but how many take the same sentiment to Lisa's office?

 

I offer to my Second Amendment Advocacy friends that we cannot win a game where the deck is repeatedly and continually stacked against us and we if just continue to play the same game by the same rules the same result will come to pass. They know what to expect on IGOLD day and legislators just throw up their human shields and then run and hide.

 

I will go to Lisa's office building, as I do every year, and I hope others will do the same. How could a massive appeal to the A.G. concerning rights be ignored? Answer: it couldn't be. Please consider it....

[Molly B.]

Summary judgment brief from Muller:

 

Muller vs New Jersey Motion for Summary Judgment.pdf

[mstrat]

Hypothetically speaking - if the plaintiff loses this, and continues the appeal process into the federal courts and wins, would this force ILGA legislators to get a shall-issue right to carry law on the books? Or at least force lower courts of IL to immediately recognize the carry ban in IL as unconstitutional?

 

I sure wish somebody would file a suit in IL though, and at least get our ball rolling.

[Federal Farmer]

Hypothetically speaking - if the plaintiff loses this, and continues the appeal process into the federal courts and wins, would this force ILGA legislators to get a shall-issue right to carry law on the books? Or at least force lower courts of IL to immediately recognize the carry ban in IL as unconstitutional?

 

I sure wish somebody would file a suit in IL though, and at least get our ball rolling.

 

It would only directly affect other circuits if it reaches the Supreme Court. However, an appeals court win could affect how other circuits rule on similar cases.

[mstrat]

Sorry for taking this slightly off-topic, not really sure if it warrants another thread...

But has anyone tried to convince the ISRA, SAF, and/or NRA to represent an IL resident in a challenge against the carry ban here?

 

Would it do any good for a bunch of us to write some letters and see if they'll throw any weight into starting this fight?

[abolt243]

Sorry for taking this slightly off-topic, not really sure if it warrants another thread...

But has anyone tried to convince the ISRA, SAF, and/or NRA to represent an IL resident in a challenge against the carry ban here?

 

Would it do any good for a bunch of us to write some letters and see if they'll throw any weight into starting this fight?

 

I don't think you have to start a letter writing campaign to "convince" the organizations to challenge Illinois law. As Todd mentioned here a few weeks ago, IL has more active and pending court cases concerning gun rights than any other state in the union. In order to file a suit, you need a defendant, and that person needs to have "standing", as I understand it, needs to have suffered some type of "loss" due to the existing law. And the defendant needs to have a "good" case from the legal aspect so that the case is not lost and bad precedent is put on the books that would have to be overcome later.

 

I'm sure that these organizations as well as others have their eye out for a good defendant with "standing" for a challenge to the carry ban here in IL. One or more may have already been found and those cases may be in the process of being developed now, but not ready for public announcement yet. I don't know, but I'd be surprised if we don't hear about one in 2011. The climate across the country just seems right for it. And wouldn't it be a feather in the cap of the organization that brings RTC to IL??

 

A letter of encouragement would be nice to either or all of the above mentioned organizations. Enclosing a check to be directed to their legal defense fund would be appreciated even more. Heller and McDonald were expensive. Ongoing challenges are making it more expensive. They need our support.

 

AB

[Tvandermyde]

We have a defendant and are working out the details. More after jan 1

[abolt243]

We have a defendant and are working out the details. More after jan 1

 

 

And THAT boys and girls is your Christmas present!!

[Federal Farmer]

We have a defendant and are working out the details. More after jan 1

 

Defendant or Plaintiff? Inquiring minds want to know!

[Tvandermyde]

Ff my bad to many terms. In /my head from aLl the reading

 

Plantiff