May 22, 2023
| By ANJRPC Attorney Dan Schmutter[Editor’s note: this analysis is current as of May 22, 2023. Due to the dynamic nature of this case, and New Jersey’s new appeal to nullify the court’s ruling, this analysis is subject to change at any time and should not be relied on as legal guidance as to when and where one may lawfully carry. Only rely on current advice from your own attorney before carrying.] |
On May 16, 2023, federal Judge Renee Bumb issued a preliminary injunction (“PI”) in our carry case Siegel v. Platkin. The PI expands the number of sections of the new “carry killer” law (referred to as “Chapter 131”) that the State temporarily may not enforce beyond what the Court restrained in its Temporary Restraining Order (“TRO”) issued in January. Unless altered by an appeals court, the PI will remain in effect until the end of the lawsuit or until further order of the Court. Like the TRO, the PI also restrains certain pre-existing prohibitions as well. Also, as with the TRO the Court also clarified that certain provisions of the law are to be interpreted narrowly, thereby reducing the restrictive scope of the law.A): The provisions of law that currently may not be enforced, in whole or in part, under the PI are as follows:7(a)(6): within 100 feet of a place where a public gathering, demonstration or event is held for which a government permit is required, during the conduct of such gathering, demonstration or event.7(a)(9): zoo [the injunction only applies to zoos, not the other items listed in section 9.]7(a)(10): a park, beach, recreation facility or area or playground owned or controlled by a State, county or local government unit, or any part of such a place, which is designated as a gun-free zone by the governing authority based on considerations of public safety. [The prohibition on carry in playgrounds is still enforceable for now.]N.J.A.C. 7:2–2.17(b) [preexisting law]: State Park Service property.7(a)(12): a publicly owned or leased library or museum.7(a)(15): a bar or restaurant where alcohol is served, and any other site or facility where alcohol is sold for consumption on the premises.7(a)(17): a privately or publicly owned and operated entertainment facility within this State, including but not limited to a theater, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held.7(a)(18): a casino and related facilities, including but not limited to appurtenant hotels, retail premises, restaurant and bar facilities, and entertainment and recreational venues located within the casino property.N.J.A.C. 13:69D–1.13 [preexisting law]: within a casino or casino simulcasting facility.7(a)(20): an airport. [PARTIAL – The Court clarified that Chapter 131 does not prohibit carry while dropping off or picking up passengers at curbside. The Court also ruled that while the PI is in effect, individuals may check a firearm as checked luggage while travelling pursuant to federal law so long as the individual stores the firearm as required by federal law before physically entering the airport and upon entry immediately proceeds to the required area to check the baggage containing the firearm. The individual cannot travel to any other section of the airport until the bag containing the firearm is checked. The Court did not rule on whether a person may carry inside any portion of the airport, and, other than the foregoing, the prohibition of carrying a firearm in an airport remains in effect. The Court did not issue an injunction as to transportation hubs and therefore that prohibition remains in effect.]7(a)(21): a health care facility, but only as to a medical office or ambulatory care facility. The prohibitions remain in effect as to all other categories of health care facilities.7(a)(23): a public location being used for making motion picture or television images for theatrical, commercial or educational purposes, during the time such location is being used for that purpose;7(a)(24): private property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises. However, the injunction only applies to property “held open to the public.” We interpret this ruling to mean that the Court did not issue an injunction for residential property or commercial property not held open to the public. Thus, we understand that the injunction applies to private property where the public may enter without seeking express permission, that is, where the public can walk in the door without asking.7(b)(1): prohibition on carrying a loaded firearm in a vehicle.N.J.A.C. 7:25-5.23(f)(5) [preexisting law]: prohibition on carrying a loaded firearm in a vehicle.4(a) and (b): Liability insurance requirement.Portion of N.J.S. 2C:58-4(c) authorizing the police to interview the persons endorsing the carry permit application.B): The provisions of law for which the Court provided/acknowledged narrow interpretations or imposed narrowing rulings are as follows:In the TRO, the Court had previously acknowledged the State’s concession that “school, college, university, or other educational institution” is to be read narrowly to apply to traditional schools such as are regulated by the State. Thus, the prohibition on carrying in schools does not apply to, for example, motorcycle classes, firearms training, Sunday school within a church, karate classes, and music lessons. In its PI decision, the Court maintained that same view.Further, the Court had also acknowledged in the TRO the State’s concession that notwithstanding the very broad language used in the statute (“any part of the buildings, grounds, or parking area”) the scope of prohibition on multiuse property (strip malls, office buildings, churches with schools, etc.) is limited only to the actual prohibited use itself and not other uses and also does not include shared features such as shared parking lots, hallways, elevators, etc. Again, in its PI decision, the Court maintained that same view.The portion of N.J.S. 2C:58-4(c) authorizing the police to require such other information as deemed reasonably necessary for the carry permit application is limited to objective evidence on the applicant’s dangerousness and risk to public safety.Importantly, the State has already appealed these rulings, and even before the Court of Appeals decides the actual appeal it could potentially impose an immediate stay of Judge Bumb’s preliminary injunction while the appeal is pending. Therefore, it is very important to stay up to date with these proceedings to make sure you know if the injunction remains in effect.The Judge has directed the parties to conduct discovery on several of the issues so she can conduct an evidentiary hearing on those issues. ANJRPC will continue to aggressively advance the case to its conclusion to ensure that when the lawsuit arrives at a final judgment it is as broad as possible in order to defeat as much of this unconstitutional law as we can.