cuchulainn
Member
from: http://www.law.com/jsp/article.jsp?id=1166448999875
N.J. Judge Voids City's Gun Control Law
Charles Toutant
New Jersey Law Journal
December 20, 2006
A New Jersey state court judge on Dec. 13 enjoined enforcement of a Jersey City ordinance limiting handgun purchasers to one gun a month.
In a suit that tested the power of cities to write their own laws to curb gun-related violence, Hudson County Assignment Judge Maurice Gallipoli said he doubted the ordinance would achieve that end. And he found it pre-empted by the state's extensive gun-control scheme.
Gallipoli also said the law violated equal protection grounds, deeming it arbitrary, capricious and lacking a rational basis.
Jersey City's lawyer, Thomas Jardim, of Ramsey Berman in Morristown, says he will seek leave to appeal, particularly as to the equal protection holding.
Jersey City was the first municipality in the state to adopt an ordinance limiting gun purchases. Ordinance 06-082, adopted June 13, required purchasers to certify in writing that they had not bought another handgun in the city in the past 30 days. Violators could be fined as much as $500.
In July, suit was filed by Caso's Gun-a-Rama, the only licensed gun dealer in Jersey City, as well as the Association of New Jersey Rifle & Pistol Clubs Inc., which argued the law gave out-of-town gun shops an unfair advantage.
Gallipoli denied the plaintiffs' request for a temporary injunction on July 28 and set the case down for argument on a permanent one. The same day, the judge did allow Jersey City to rewrite the ordinance to address the plaintiffs' argument that it was vague.
Intervening on Jersey City's behalf was the local chapter of Associations of Community Organizations for Reform Now (ACORN), represented by Renée Steinhagen of New Jersey Appleseed Public Interest Law Center and Linda Fisher of the Center for Social Justice at Seton Hall University School of Law.
Defense counsel Jardim argued that the ordinance was a legitimate use of police power because it would restrict the supply of handguns in the city, decrease the possibility of gun trafficking and curb the use of legitimately purchased guns in criminal acts by someone other than the purchaser.
Jardim pointed out that the city this year passed another ordinance, requiring residents to make a report to police when firearms are lost or stolen, and that city council members are contemplating another law that would ban possession of a type of small, inexpensive gun known as a "Saturday Night Special," Jardim says.
In his brief, plaintiffs lawyer Frank Pisano III, of Needleman & Pisano in Montville, claimed that the ordinance violates the state constitutional equal protection clause because it places a restriction on Jersey City's citizens that does not apply to people living elsewhere in the state.
He also argued pre-emption, citing In re Pries, 118 N.J. 564 (1990), in which the state Supreme Court noted the "careful grid of regulatory provisions" in the criminal code about purchase and sale of handguns. Among those provisions is N.J.S.A. 2C:58-3i, which limits handgun purchases to one per permit but allows multiple purchases to someone with more than one permit.
Jardim argued that while the state has exclusive authority over licensing of handguns, N.J.S.A. 40:40-1(18) gives municipalities authority to regulate and prohibit the purchase or sale of firearms. He added that the court left localities the right to gun possession to further health and safety goals in Township of Chester v. Panicucci, 62 N.J. 94 (1973), in which a local law restricting hunting was upheld.
During the oral argument Dec. 13, Gallipoli pointed out to Jardim that the city had no evidence that any guns purchased at Caso's were used in crimes.
After the ruling Jardim said, "I respect the judge's personal opinion but the fact that he didn't think it was a wise piece of legislation is not within his purview. It's the job of the mayor and council."
ACORN lawyer Fisher says Gallipoli wrongly interpreted the court's "careful grid" language in Pries to mean that state legislation intended to have exclusive authority over gun regulation. The state statute, for example, does not address frequency of gun purchases at all. "There's plenty of room in that state statutory scheme for municipalities to fill in the gaps," Fisher says.
Fisher conceded the ordinance will have the effect of sending purchasers to nearby towns in search of guns. "We would be more than happy if Bayonne or Hoboken would enact similar ordinances, but in this business it's one step at a time," she says.
Plaintiffs lawyer Pisano says of the ruling Dec. 13, "I think the court clearly recognized that our Legislature has enacted comprehensive regulations regulating the purchase and sale of firearms and intended to occupy that field exclusively.
"The other message is if you want to address the problem of violent crime, the way not to do it is by restricting law-abiding citizens from lawfully purchasing firearms consistent with state law, which they can do everywhere else in the state."
