State v. Higginbotham, ___ N.J. Super. ___ (App. Div. 2023); In re Appeal of Denial of M.U.’s Application for a Handgun Purchase Permit, ___ N.J. Super. ___ (App. Div. 2023). Last week saw two major constitutional law opinions from the Appellate Division. One case upheld the constitutionality of N.J.S.A. 2C:58-3(c)(5), which restricts the issuance of handgun purchase permits (“HPPs”) and firearms purchaser identification cards (“FPICs”). The other found unconstitutional the “child erotica amendment,” L. 2017, c. 141, to the child endangerment statute, N.J.S.A. 2C:24-4. Either or both cases might end up at the Supreme Court.
As its caption suggests, M.U. is the firearms case. The constitutionality of N.J.S.A. 2C:58-3(c)(5), which prohibits the issuance of a HPP or FPIC “[t]o any person where the issuance would not be in the interest of the public health, safety, or welfare, was at issue.
The record showed that M.U., the applicant for a HPP, had “”multiple instances of negative police interactions, including the theft of a trailer and criminal mischief,” as the local police chief found in denying his application in March 2020. The Law Division affirmed that decision. On appeal, so did the Appellate Division, in an exhaustive opinion by Judge Geiger. That opinion, in accordance with New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022), addressed “whether relevant historical analogues demonstrate that N.J.S.A. 2C:58-3(c)(5) is consistent with this Nation’s historical tradition of firearm regulation under Bruen.”
To summarize a lengthy description by Judge Geiger, M.U.’s history included a 2012 incident in which, in retaliation for a $300 unpaid invoice, M.U. and others threw logs at the victim’s car, shattering its rear window and causing an estimated $3,600 in damages, as well as using a chainsaw to cut down a tree valued at $2,000 on the victim’s property. He was also involved in the theft of a trailer, on which he installed a fictitious license plate. He told police that he had purchased the trailer but had no purchase records. He admitted the truth in applying for the HPP, but said it was not a “big deal.” Asked whether he would do anything differently today, he “did not state he would not take the trailer in the first instance, that he would not affix false license plates to the trailer, or that he would not lie to the police about how he came into possession of the trailer. Instead, he responded, ‘honestly . . . I would remain silent and call a lawyer.'” There were other incidents too. Some of the incidents had been expunged, but the panel found it appropriate to consider the expunged matter, agreeing with a prior Law Division that had done that and declining to follow a Chancery Division that had not so acted.
After discussing Bruen and other United States Supreme Court cases that led to it, Judge Geiger issued an exhaustive opinion that covered the history of firearms regulation going back to England and the United States in the seventeenth century. He distilled that history into “three principles. First, legislatures traditionally imposed status-based restrictions that disqualified categories of persons from possessing firearms. Second, the status-based restrictions were not limited to individuals who demonstrated a propensity for violence–they also applied to entire categories of people due to the perceived threat they posed to an orderly society and compliance with legal norms. Third, legislatures had broad discretion to determine when people’s status or conduct indicated a sufficient threat to warrant disarmament.”
Applying the presumption that statutes are constitutional, Judge Geiger found no abuse of discretion in the finding that M.U. was disqualified from getting an HPP. He “has demonstrated a repeated disrespect for the rule of law, including our Criminal Code. The record supports the finding that appellant fits squarely within the category of individuals who would pose a risk to “public health, safety or welfare” if permitted to purchase handguns. We therefore conclude that appellant[‘]s history of misconduct placed him outside of ‘the people’ protected by the Second Amendment.” M.U. had argued vagueness, overbreadth, and denial of due process, but all those contentions failed. The panel reversed, however, that portion of the Law Division’s decision that had compelled the seizure and sale of firearms that M.U. possessed.
Higginbotham involved a defendant who seemed to have an obsession with a particular underage girl. He had pictures of her onto which he placed sexually graphic narratives. In all the photos, however, the girl was clothed. Defendant sent some pictures, with accompanying narratives, to others via Facebook. He twice sent a photo collage that showed a picture of his aroused penis beneath sweatpants, surrounded by photos of the girl, again clothed. He also sent text, without pictures, that “referred to oral sex with [the girl], defendant’s receiving pleasure from having her sit on his lap, and a statement about masturbating ‘on top of her with her little panties while she laid in her bed sleeping.'” But he denied ever masturbating near the girl and said that he used that sort of language to “increase shock value.”
The State charged defendant with portraying a child “portraying a child ‘in a sexually suggestive manner by otherwise depicting [her] for the purpose of sexual stimulation or gratification of any person who may view the depiction where [it] does not have serious literary, artistic, political or scientific value,’ contrary to N.J.S.A. 2C:24-4(b).” Defendant moved to dismiss the indictment, but the Law Division denied that motion. On appeal, the Appellate Division reversed in an opinion by Judge Whipple.
That decision canvassed decisions of the United States Supreme Court. In light of those decisions, the panel concluded that the statute is unconstitutionally overbroad and vague, as it could proscribe pictures “taken on a public beach, which includes children or teenagers in swimsuits, applying sunscreen on each other or themselves …. photographs taken for telehealth medical diagnostic purposes—like a rash or other skin condition[, or d]epictions of certain types of sporting events—such as wrestling, cheerleading, gymnastics, or track and field … depending on the design of participants’ athletic uniforms.” Those problems could not be saved by “judicial surgery,” that is, editing the statute in a way that would conform with legislative intent while curing defects. “Being sexually aroused by an image of a scantly clothed child is abhorrent, but it is not illegal.”