NJ2AS v. NJSP update and court documents

[Bob B 103]

For those interested, I have attached a copy of our complaint, brief, order to show cause and two requests for extension from the AG. The AG has asked for two extensions citing their case load of 120 active cases. We have informed them that we will not be accepting any further requests for extension. Our court date will now be moved to early July. It is possible to get a decision at the hearing although the Judge may choose to issue his decision at a later date. For those of you who are not aware, we are suing for access to the NJSP Firearms Application Guidebook. This is the first step in Operation Establish Compliance (OEC) (See link in my signature for more info). Donations are needed and appreciated and may be done by clicking on the link on the NJ2AS homepage (www.NJ2AS.com). Thanks to all, the support has been tremendous. Edit: Added three more attachments. Court date is now July 12th.

NJ2AS Complaint.pdf

NJ2AS Brief.pdf

4-29-11 signed order to show cause.pdf

5-20-11 fax from Postelnik.pdf

6-8-11 fax from Postelnik.pdf

6-10-11 Postelnik letter.pdf

NJSP\'s 6-15-11 brief, Part I.pdf

NJSP\'s 6-15-11 brief, Part II.pdf

NJ2AS reply brief (2).pdf

9-1-11 letter from Rizzo.pdf

9-30-11 NJSP filing-1.pdf

10-3-11 Gutman Certification.pdf

10-3-11 motion, briefs.pdf

11-29-11 Rizzo\'s cover letter.pdf

11-29-11 Certification.pdf

11-30-11 Response to Third Certification.pdf

12-2-11 Order.pdf

NJ2AS v. NJSP appeal brief.pdf

Appeal Notice of Docketing, Scheduling Order.pdf

013112 ACLU ltr to Clerk.pdf

021412 motion, brief to consolidate.pdf

030512 Rizzo motion for extension of time re consolidation.pdf

032012 S.P. opposition regarding consolidation.pdf

032112 reply documents.pdf

042012 orders-2 consolidation granted.pdf

051512 AG\'s motion to file single brief.pdf

051512 AG\'s letter.pdf

061412 letter of Conforti.pdf

070312 ACLU Brief Cover.pdf

070312 ACLU Brief I-1.pdf

070312 ACLU Brief II-2.pdf

2012 071212 ACLU\'s 7-12-2012, 7-18-12 letters-1.pdf

2012 072712 letter to Clerk.pdf

2012 073012 State Police request for extension of time.pdf

2012 083012 State Police motion for extension of time(1).pdf

2012 090612 Order(1).pdf

2012 092712 ACLU motion, brief(1).pdf

2012 092712 ACLU supplemental appendix.pdf

2012 093012 NJSP filing-1-1.pdf

2012 093012 NJSP Reference Form-1.pdf

2012 100112 State Police\'s motion to supplement(1).pdf

2012 100212 letter to clerk(1).pdf

2013 011713 NJ2AS reply brief 2.pdf

2013 020513 NJ SECOND AMEND MOTION STAY CONFORTI CERT 02 05 2013.pdf

2013 020513 SECOND AMENDMENT MOTION STAY CERT SERV 02 05 2013.pdf

2013 020513 SECOND AMENDMENT MOTION STAY COV LTR 02 05 2013.pdf

[LorenzoS 100]

It's so nice to see Paula Dow for the Defense, again. I wonder at what point she will begin to notice a trend.

[LorenzoS 100]

We have informed them that we will not be accepting any further requests for extension.

 

We're sorry, all our lawyers are busy defending our 120 other cases of misconduct and violations of civil rights. Can we reschedule for, say, June of 2020?

[Bob B 103]

^It does make you wonder.

[Tom-NJ2AS 31]

good stuff. Thanks Bob!

[heaterbob 53]

just donated again, hard to believe its taking so long to raise the funds. what are most forem readers also misers?

[Ray Ray 3,566]

just donated again, hard to believe its taking so long to raise the funds. what are most forem readers also misers?

 

Even 5 bucks would help. If you don't have 5 bucks to donate to help save YOUR rights you need your head checked.

[Bob B 103]

good stuff. Thanks Bob!

 

Tom, feel free to cross post to the other forums that you frequent, or download the files and post them there.

 

 

just donated again, hard to believe its taking so long to raise the funds. what are most forem readers also misers?

 

Thanks for donating. We are making steady, meaningful progress and we are working diligently on phase II of OEC.

[Tom-NJ2AS 31]

on it!

[Bob B 103]

REPLY BRIEF ADDED TO OP

 

 

I just added three other documents to my original post. Two of them are part I and part II of the NJSP's reply brief.

 

Our court date is July 12th at 9:30 AM in Trenton.

[matty 810]

Just skimmed thru the Paula Dow reply, seems to be almost entirely relying on Christie's Exec order (Thanks, Fatty!) as the opposition and the statement of LT Schlueter. Not being a LEO, what sensitive investigative techniques or procedures would disclosure possibly compromise? Isn't the 'investigation' of a firearms applicant supposed to be straightforward? Does the NJSP have access to some secret database that places like OPM (grants security clearances) does not? IIRC OPM requests the same from applicants home state. I would think that other than a national/state computer records check, possibly a local as well, prints, and receipt of the silly arsed referenced letters in the positive should do it. At least as far as the laws are currently written, the whole thing should be thrown out. Must it be such a big deal?

[PDM 91]

How do you get around the "standard operating procedures" exemption? Unfortunately, seems that Dow has a valid argument there under the letter of the law, as ridiculous as it is.

[LorenzoS 100]

How do you get around the "standard operating procedures" exemption? Unfortunately, seems that Dow has a valid argument there under the letter of the law, as ridiculous as it is.

Because constitutionally protected rights trump administrative procedures. Now that the Supreme Court has established the right to own a firearm is a constitutionally protected right belonging to individuals, the burden has to shift to the state to prove their procedures do not infringe on that right.

 

Consider this in the context of the 1st amendment. The state cannot impose secret administrative procedures used to determine whether you can publish a newspaper article.

[Malsua 1,422]

Because constitutionally protected rights trump administrative procedures. Now that the Supreme Court has established the right to own a firearm is a constitutionally protected right belonging to individuals, the burden has to shift to the state to prove their procedures do not infringe on that right.

 

Consider this in the context of the 1st amendment. The state cannot impose secret administrative procedures used to determine whether you can publish a newspaper article.

 

Did anyone happen to read the "Manifesto" by the guy that torched himself in New Hampshire?

 

If you didn't read it, I'll summarize it for you. Administrative decree and procedures have essentially become the system within a system. He called it "the second set of books". Among other things, he mentioned how using the first set of books (Law and due process) to crush the second set of books made the defenders of the second set of books very angry as they consider themselves to be the guardians of all that is right and proper. It's a fascinating, well written screed.

[Njgunowner 2]

I wish you the best of luck, but I feel you've lost before you really began.

 

I know that the plan was probably get the procedure in order to pick it a part and disqualify it, but your suit as worded is going to get torn a part. Going after the constitutionality of NJ's firearms laws probably would have gotten your lawyer access to this information. If this was a winning tactic, the NRA probably would have tried it already... Then again the NRA ignores NJ so what do I know

[I saw nothing 3]

How do you get around the "standard operating procedures" exemption? Unfortunately, seems that Dow has a valid argument there under the letter of the law, as ridiculous as it is.

 

What Hitler did was legal under their law... so yes, it is ridiculous! This is why Judges were meant to uphold and interpret the Constitution and not write laws they THINK go along with the Constitution.

[Babaganoosh 192]

Did anyone happen to read the "Manifesto" by the guy that torched himself in New Hampshire?

 

If you didn't read it, I'll summarize it for you. Administrative decree and procedures have essentially become the system within a system. He called it "the second set of books". Among other things, he mentioned how using the first set of books (Law and due process) to crush the second set of books made the defenders of the second set of books very angry as they consider themselves to be the guardians of all that is right and proper. It's a fascinating, well written screed.

 

I read it the other day and was going to post it here, but forgot. You can pretty much see how it works with all of our firearms "laws" here in NJ.

[Malsua 1,422]

You can pretty much see how it works with all of our firearms "laws" here in NJ.

 

That's EXACTLY what I was thinking as I was reading it. The laws are all well and good but the Handbook and guidelines are what the PDs pay attention to.

[PDM 91]

What Hitler did was legal under their law... so yes, it is ridiculous! This is why Judges were meant to uphold and interpret the Constitution and not write laws they THINK go along with the Constitution.

Umm guys, please read the NJ2AS complaint. Do you see the Second Amendment mentioned anywhere therein? No, you don't. This lawsuit is not predicated on a violation of the Second Amendment. It only alleges violations of 1) OPRA and 2) the Common Law right of access to public records. We are all enthusiastic about protecting our 2A rights and know that those rights are routinely flouted in this state, but that's not what this particular lawsuit is about. However, enthusiasm isn't a strategy. I was simply raising a question about the merits of this lawsuit. Yes, judges are supposed to uphold the law, and this judge will undoubtedly uphold OPRA as written, including applicable exemptions. If anyone has an intelligent response to my question regarding the State's response regarding "standard operating procedures" I'd love to hear it.

[SkinsFan 2]

Just sent in a small donation.. Good luck guys

[Bob B 103]

I wish you the best of luck, but I feel you've lost before you really began.

 

I know that the plan was probably get the procedure in order to pick it a part and disqualify it, but your suit as worded is going to get torn a part. Going after the constitutionality of NJ's firearms laws probably would have gotten your lawyer access to this information. If this was a winning tactic, the NRA probably would have tried it already... Then again the NRA ignores NJ so what do I know

 

We need a "crabs in a bucket" smiley.

 

Our objective is not to pick apart the guide. We are hoping that the guide is well prepared and in line with the statutes and Administrative Code. OEC is about bringing municipal police departments in line with the statutes. Among other things, having the guide will allow us to identify and prove where the many violations that we see on a daily basis at the municipal level are originating.

 

 

Umm guys, please read the NJ2AS complaint. Do you see the Second Amendment mentioned anywhere therein? No, you don't. This lawsuit is not predicated on a violation of the Second Amendment. It only alleges violations of 1) OPRA and 2) the Common Law right of access to public records. We are all enthusiastic about protecting our 2A rights and know that those rights are routinely flouted in this state, but that's not what this particular lawsuit is about. However, enthusiasm isn't a strategy. I was simply raising a question about the merits of this lawsuit. Yes, judges are supposed to uphold the law, and this judge will undoubtedly uphold OPRA as written, including applicable exemptions. If anyone has an intelligent response to my question regarding the State's response regarding "standard operating procedures" I'd love to hear it.

 

Our reply will be done in a week or two, at which point, you will be able to see our approach. Without going into too much detail, the bottom line is that there are multiple avenues around this issue. We all know that nothing is as it seems with the law in NJ and OPRA is no different. Even though OPRA allows for the Governor to add exemptions by Executive Order, this is not a license to exempt anything for any reason whatsoever (sound familiar?). Case law supports the position that an EO can only exempt government records for legitimate reasons and the State has the burden of proving that such conditions exist.

 

Second, our request for the guide was made under OPRA AND under "common law right of access." Common law right of access has nothing to do with OPRA. In OPRA, a government record must be released unless there is an exemption. In common law right of access, there is a balancing test. The need of the government to keep the records secret is weighed against the need of the public to see the records. A record that is exempt under OPRA may be released under common law right of access.

 

Third, we have no illusions that we are going to win the first round in Trenton. We are prepared to appeal and will do so if we are not satisfied with the results.

 

Lastly, if we do not get access to the guide, this will not stop OEC. We can gain access to the guide through discovery in our next lawsuit. It is actually in the State's best interest to give us the guide. Having the guide will allow us to determine the source of the illegal additional requirements that we see and may lead to a discussion with the various police chiefs whose departments are not in compliance. Some may agree to change their procedures once we show them that what they are doing is not in the guide. By not giving us the guide, we are forced to file suit -- we are forced to take a more aggressive approach. We are prepared either way.

 

SkinsFan, thanks for the support.

[raz-0 1,259]

Bump.

 

Can't donate a lot all at once, but I can donate something. Just donated again, surly some more of us can kick in again.

[Tom-NJ2AS 31]

Thanks Raz-o

[Babaganoosh 192]

Too bad nobody has access to the guide who can copy it and make sure it gets uploaded to the intrawebs somehow...

[Njgunowner 2]

Anyone who did and got caught would be jobless shortly there after. I don't think I'd want someone losing their job for it, the job market is rough.

[JTQ911 2]

Donated $50. Keep up the good work. Will donate again next paycheck.

[Tom-NJ2AS 31]

Thank you for the donation!

[Chip 0]

Donation sent. Thanks for fighting the good fight.

[Bob B 103]

Update:

Our court date was today. I attended along with our attorney, Rick Gutman. This was oral arguments only, no witnesses.

 

In short, the judge thought the State Police's assertion regarding the need for secrecy was inadequate, however, instead of ruling against them, he gave them 45 days to file a more detailed explanation of why they consider the Guide confidential.

 

We will be back in court sometime around late August, early September.

I'll refrain from speculating about what that means, exactly. It's good that he didn't like their explanation. It's bad that he gave them another chance. Whether or not he likes their new explanation remains to be seen.

 

 

[djg0770 481]

Instead of ruling against them, he gave them 45 days to file a more detailed explanation of why they consider the Guide confidential.

 

Is this judicial approach normal or usual when dealing with this type of OPRA request? Or is it not normal but not abnormal either? I'm trying to get a feel for the judge and whether he's playing ball with the state and telling the rest of us to GTFO.