In the Matter of the Appeal of the Denial of R.W.T.'s Application, Etc.

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3899-21

IN THE MATTER OF THE APPEAL
OF THE DENIAL OF R.W.T.'S                        APPROVED FOR PUBLICATION
APPLICATION FOR A                                     December 22, 2023
FIREARMS PURCHASER                                  APPELLATE DIVISION
IDENTIFICATION CARD AND
A HANDGUN PURCHASE PERMIT.
_______________________________

           Submitted November 9, 2023 – Decided December 22, 2023

           Before Judges Currier, Firko and Susswein.

           On appeal from the Superior Court of New Jersey,
           Law Division, Bergen County, Docket No.
           GPA-BER-0011-22.

           Evan F. Nappen Attorney at Law, attorneys for
           appellant R.W.T. (Louis P. Nappen, on the brief).

           Mark Musella, Bergen County Prosecutor, attorney for
           respondent State of New Jersey (K. Charles Deutsch,
           Assistant Prosecutor, of counsel and on the brief).

     The opinion of the court was delivered by

SUSSWEIN, J.A.D.

     This matter presents a question of first impression concerning the rights

and responsibilities of New Jersey gun permit applicants under the Second
Amendment to the United States Constitution. Petitioner R.W.T. 1 appeals a

July 8, 2022 Law Division order denying his application for a Firearms

Purchaser Identification Card (FPIC) and a permit to purchase a handgun

(PPH). After conducting an evidentiary hearing, the trial court issued an oral

opinion denying petitioner's application on two independent grounds. The trial

court found petitioner knowingly falsified information on the application,

triggering disqualification pursuant to N.J.S.A. 2C:58-3(c)(3). The trial court

also found petitioner was involved in past altercations with a neighbor,

demonstrating his acquisition of a firearm "would not be in the interest of

public health, safety or welfare" pursuant to N.J.S.A. 2C:58-3(c)(5). After

carefully considering the record in light of the governing legal principles and

arguments of the parties, we affirm the denial of petitioner's FPIC and PPH

based on the trial court's finding he knowingly provided false information on

his application.

      Petitioner contends both statutory provisions the trial court relied upon

violate the Second Amendment as recently interpreted by the United States

Supreme Court in N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 

, 

 (2022). In Bruen, the Court devised a new test for


1
   We refer to petitioner by initials because the trial court discussed medical
records in rendering its decision. See R. 1:38-3(a)(2).


                                                                        A-3899-21
                                      2
resolving Second Amendment challenges, displacing the "means-ends" test

traditionally used to determine the constitutionality of a government regulation

impinging on an individual's constitutional rights. 

. The Court held

the government must "not simply posit that the regulation promotes an

important interest," but must demonstrate "the regulation is consistent with this

Nation's historical tradition of firearm regulation." 

. To pass the

new test, the government must show there was "relevantly similar" regulation

of the conduct when the Second and Fourteenth Amendments were adopted by

presenting a "well-established and representative historical analogue. . . ." 

 (emphasis omitted).

      Applying this new "analogical" paradigm, we recently rejected a facial

challenge to the constitutionality of the "public health, safety or welfare"

disqualification criterion.      See In re M.U.'s Application for a Handgun

Purchase Permit, 

, 190-94 (App. Div. 2023). We have not

yet had the occasion, however, to address the falsification disqualification

provision's constitutionality.    We now hold this provision survives Second

Amendment scrutiny notwithstanding that, so far as we are aware, it has no

historical analogue.

      At first glance, this acknowledgment might seem to conflict with the

United States Supreme Court's new emphasis on the historical regulation of



                                                                          A-3899-21
                                         3
firearms. See Bruen, 

. But the falsification disqualification

provision's constitutionality follows inescapably from an important principle

rooted in Bruen: states may establish a gun-licensing regime. See Bruen, 

 n.9. Under such a licensing system, prospective gun purchasers

or persons seeking to carry a firearm outside their home must obtain a permit.

The application for the permit prompts a background check to determine if

there is a basis to overcome the presumption that the permit must be issued.

      As a matter of rudimentary common sense, a jurisdiction with any such

"shall issue" licensing regime may require applicants to provide truthful

information on their applications, and correspondingly, may deny an

application when false information is knowingly tendered. Truthfulness on an

application, after all, is an integral and indispensable part of the licensing

process and applicants are not free to lie to the licensing authority without

consequence.

      Accordingly, the constitutionality of the falsification disqualification

provision springs not from historical precursors, but rather from the

constitutionality of the licensing regime itself.    Having acknowledged the

constitutionality of the basic structure of a shall-issue licensing regime, Bruen

signaled that laws safeguarding the integrity of such licensing systems without




                                                                          A-3899-21
                                       4
imposing additional substantive limits on who can purchase a gun will also be

constitutional.

      We further hold the trial court acted within its authority in making

factual findings and applying those facts to the falsification disqualification

provision. Denial of petitioner's application on that ground is supported by

substantial and credible evidence and we decline to substitute our judgment for

the trial court's judgment in assessing witness credibility. Accordingly, we

affirm the denial because petitioner knowingly provided false information in

his application.

      Because the falsification disqualification provision categorically requires

denial, we need not address petitioner's challenges to the trial court's

determination that granting his application would be inimical to public health,

safety or welfare under N.J.S.A. 2C:58-3(c)(5). We are mindful of the general

principle that "[c]ourts should not reach a constitutional question unless its

resolution is imperative to the disposition of litigation." Randolph Town Ctr.,

L.P. v. Cnty. of Morris, 

 (2006). Here, resolution of petitioner's

arguments pertaining to N.J.S.A. 2C:58-3(c)(5) are not imperative to this

appeal's resolution because the denial of his FPIC/PPH application was

required on other grounds.

                                       I.



                                                                          A-3899-21
                                       5
      In January 2022, petitioner applied for an FPIC and a PPH. The Upper

Saddle River Police Department chief denied the application on the grounds

that it "would not be in the interest of public health, safety or welfare"

pursuant to N.J.S.A. 2C:58-3(c)(5). Petitioner appealed the chief's decision to

the Law Division pursuant to N.J.S.A. 2C:58-3(d). The trial court convened an

evidentiary hearing at which multiple witnesses testified.     We discern the

following pertinent facts from the hearing.

                                    A.
                           Background Information

      Petitioner is a forty-three-year-old married man with three daughters.

He earned a Bachelor of Science degree in finance.            Since childhood,

petitioner has been an avid hunter and sportsman. He has no disqualifying

felony convictions or juvenile delinquency adjudications, no domestic violence

disorderly persons convictions, no domestic violence weapons forfeiture, no

mental health commitments, and is not subject to a restraining order.

      Petitioner provided two letters of recommendation. The trial court read

them into the record and found they "attest to the good character of

[petitioner], given their personal relationship with him."      Petitioner also

offered into evidence his New Jersey Division of Fish and Wildlife ID card

and North Carolina Resources license.

                                        B.

                                                                        A-3899-21
                                        6
                       Falsification on Application Form

      On his FPIC application, petitioner marked "no" in response to the

question: "[h]ave you ever been attended, treated, or observed by any doctor or

psychiatrist or at any hospital or mental institution on an impatient or

outpatient basis for any mental or psychiatric condition?" At the evidentiary

hearing, petitioner acknowledged he had in fact been treated by a psychiatrist

in college for "a sports performance issue that was deemed to be a mental

block." He could not remember the psychiatrist's name, or the exact number of

times he visited the psychiatrist. When the trial court asked if he visited the

psychiatrist more than once, petitioner replied, "I'm trying, Your Honor, the

only reason I'm taking a pause is I've seen marriage counselors, and things of

that nature. I don't know if that qualifies to [t]his question." The trial court

responded, "I just heard testimony from you, you were asked, have you ever

seen a psychiatrist, you hesitated. It was a very long pause."

      After additional follow-up questions, petitioner also acknowledged he

underwent marriage counseling with his ex-wife but could not recall "whether

they were psychologists or psychiatrists." He also acknowledged he continued

to receive counseling to deal with his post-divorce issues.

      When asked why he did not disclose seeing a psychiatrist for the sports

performance issue on his application, petitioner explained his doctor did not



                                                                         A-3899-21
                                        7
deem the condition to be a "significant mental illness." Petitioner admitted

that when he filled out the application, he recalled visiting the psychiatrist. He

explained, "[t]he reason I answered no, Your Honor, is I didn't know that that

qualified as a mental condition for these purposes. I thought it was some

simpl[e] therapy." The following exchange then occurred:

            THE COURT: But just to be clear again, when you
            answered no to the question as to whether you had
            ever been attended, treated or observed by any doctor
            or psychiatrist, when you answered no, you
            considered— you recalled and you considered your
            past of seeing a psychiatrist in college, correct?

            PETITONER: Frankly it didn't even come to mind,
            Your Honor. And I apologize—

            THE COURT: You just told me a few minutes ago
            that at the time you answered that question, you
            recalled seeing a psychiatrist in college.

            PETITIONER: Yes.

            THE COURT: You just told . . . that a few minutes
            ago.

            PETITIONER: Yes.

            THE COURT: Now you're telling me something
            totally different.

            PETITIONER: I'm sorry, no, Your Honor, I didn’t
            mean to contradict myself, I'm sorry.

            THE COURT: Well maybe you didn't mean to
            contradict yourself, but you're contradicting
            yourself . . . . I have a concern when you tell me

                                                                           A-3899-21
                                        8
            something a few minutes ago and then you contradict
            yourself right after it.

      The trial court repeated its concern that petitioner had provided

"completely different answers" and asked petitioner to explain himself.

Petitioner answered, "[i]t was never my intention to mislead on the application

or mislead this [c]ourt. I at the time did not even consider those incidents

when I answered the question. I'm sorry when—."

      The trial court interceded, stating, "[s]o when you told me initially when

I asked you, did you recall seeing a psychiatrist, when you answered that

question no, and then you gave me an explanation that you didn't believe what

you were treated for fit or was applicable to that question, so that was

incorrect?" Petitioner responded, "[y]es, Your Honor, that's correct." Based

on petitioner's answer to the application's question concerning past mental

health treatment and his contradictory testimony, the trial court concluded he

knowingly falsified information in his application.

                                       C.
                                 Past Violence

      Multiple witnesses testified about a February 29, 2020 incident that

occurred at petitioner's home. Police received two 9-1-1 calls. One of the 9-1-

1 calls was made by petitioner's wife. The other call was made by petitioner's

neighbor, E.S., who was working as a contractor at petitioner's home.



                                                                         A-3899-21
                                       9
      When police arrived, they were told there had been a "dispute that turned

physical" between petitioner and E.S.       E.S.—who did not testify at the

hearing—reported to the responding officer that petitioner "came into the

house irate about the rate of [E.S.'s] production and began assaulting him."

E.S. also told police petitioner struck him in the face and placed him in a

chokehold, causing him to have an asthma attack that required medical

attention. The trial court noted "[t]here [were] some visible injuries observed

on [E.S.] with his bloody lip. He was having an asthma attack. Trouble

breathing."

      Petitioner reported E.S. "pushed him into the doorframe, causing

[petitioner] to strike his head." Petitioner told police he "retaliated in self -

defense." Petitioner's wife testified that E.S. grabbed petitioner by the side of

the head and "slammed his head in the side of the door frame."              Both

combatants sustained injury, but no arrests were made and no criminal charges

were filed.

      The police chief testified he was concerned about granting petitioner's

FPIC application because of the possibility of future violent incidents. The

chief explained, "because of a report that there had been other incidents, that

there's been a history of violent confrontations [between petitioner and E.S.]




                                                                          A-3899-21
                                       10
. . . being that they're neighbors, was concerning in the fact that we had no idea

whether there were any other incidents or not."

      The trial court recognized the report concerning other confrontations

between petitioner and E.S. was "based solely upon hearsay." The trial court

also acknowledged that if E.S. was the aggressor and physically assaulted

petitioner in his home, as petitioner and his wife claimed, petitioner "had every

right to defend himself." However, the trial court expressed concerns with

petitioner's credibility.

      Furthermore, the trial court noted petitioner's testimony confirmed there

had been a physical altercation. The trial court explained, "[y]ou corroborate

that in your testimony, that there was a physical confrontation between you

and [E.S.]. Okay. So that incident happened . . . . and there was a physical

altercation or scuffle between you and [E.S.]. That is not hearsay. That's

corroborated by your own testimony." The trial court also gave weight to the

responding officer's testimony.     Based on the foregoing evidence, the trial

court concluded petitioner was "disqualified pursuant to [N.J.S.A.] 2C:58 -

3(c)(5), that it wouldn't be in the interest of public health, safety or welfare."

      This appeal follows. Petitioner contends that under the Bruen analysis,

both the falsification and public health, safety or welfare disqualification

provisions are unconstitutional because they are inconsistent with our Nation's



                                                                              A-3899-21
                                         11
historical regulation of firearms. He also contends the trial court erred in

applying the falsification disqualification criterion because the information

petitioner failed to disclose on the application was irrelevant and immaterial.

Petitioner further argues he cured any deficiency by retracting and amending

his application answer during the hearing. With respect to the public health,

safety or welfare criterion, petitioner contends the trial court failed to explain

why he constitutes a threat sufficient to deny him the right to purchase a

firearm.

                                       II.

      Applications for an FPIC or PPH are governed by N.J.S.A. 2C:58-3.

The statutory framework "recognizes that the right to possess firearms is

presumed, except for certain good cause." In re Z.L., 

(App. Div. 2015) (citing N.J.S.A. 2C:58-3(c)). The statute lists a series of

disqualifying circumstances including, as we have already noted, one that

specifically provides that no FPIC or PPH shall be issued "to any person who

knowingly falsifies any information on the application form for a handgun

purchase permit or firearms purchaser identification card." N.J.S.A. 2C:58-

3(c)(3). The other statutory provision at issue in this case read at the time of




                                                                           A-3899-21
                                       12
petitioner's application 2 that "[n]o [PPH or FPIC] shall be issued . . . to any

person where the issuance would not be in the interest of the public health,

safety or welfare." N.J.S.A. 2C:58-3(c)(5) (Dec. 2022).

      The statute requires the chief police officer or the superintendent of the

State Police "to investigate the application to determine whether or not the

applicant has become subject to any of the disabilities set forth in this

chapter." N.J.S.A. 2C:58-3(e). A police chief's denial of an application for an

FPIC/PPH is subject to de novo review by the Law Division. In re Osworth,

 (App. Div. 2003) (citing Weston v. State, 

(1972)). "The chief has the burden of proving the existence of good cause for

the denial by a preponderance of the evidence." 

 "[I]n evaluating the

facts presented by the [c]hief, and the reasons given for rejection of the

application the court should give appropriate consideration to the [c]hief's




2
   Following the hearing in this case, the statute was amended to bar issuance
"[t]o any person where the issuance would not be in the interest of the public
health, safety or welfare because the person is found to be lacking the essential
character of temperament necessary to be entrusted with a firearm. . . ."
N.J.S.A. 2C:58-3(c)(5) (Jan. 2023). Because we are not addressing the facial
or as-applied constitutionality of this disqualification criterion, we need not
decide whether the original or revised version applies in this case—an issue
not briefed by either party. Nor do we address whether and how the additional
language in the revised version might impact the Bruen analysis—an issue also
not briefed by the parties.


                                                                          A-3899-21
                                       13
investigative experience and to any expertise he appears to have developed in

administering the statute." Weston, 

.

      An appellate court's review of "a trial court's legal conclusions regarding

firearms licenses [is] de novo." In re N.J. Firearms Purchaser Identification

Card by Z.K., 

 (App. Div. 2015). However, we must

accept the trial court's fact findings if they are supported by substantial

credible evidence. In re Return of Weapons to J.W.D., 

(1997).

                                      III.

      We first address whether the falsification disqualification provision is

unconstitutional on its face. We start by providing a succinct overview of

foundational Second Amendment principles. The Second Amendment states:

"[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.

amend. II.

      In District of Columbia v. Heller, the United States Supreme Court

identified the "core" of the Second Amendment as "the right of law -abiding,

responsible citizens to use arms in defense of hearth and home." 

 (2008). The Court nonetheless acknowledged "the right secured by the

Second Amendment is not unlimited," adding that "nothing in our opinion



                                                                          A-3899-21
                                       14
should be taken to cast doubt on . . . laws imposing conditions and

qualifications on the commercial sale of arms." 

. To underscore

that point, the Heller Court noted these kinds of restrictions on the sale of

firearms are "presumptively lawful." 

 at 627 n.26.

      Two years later, a plurality of the Court reaffirmed that Heller "did not

cast doubt on such longstanding regulatory measures as 'prohibitions on the

possession of firearms by felons. . . .'" McDonald v. City of Chicago, 

 (2010). But the McDonald Court also clarified "that the Second

Amendment right is fully applicable to the States" through the Fourteenth

Amendment. 

.

      That brings us to Bruen, which fundamentally changed the landscape of

Second Amendment jurisprudence.             Bruen involved a New York law

criminalizing possession of a firearm without a license, both inside and outsid e

the home.    Bruen, 

.       To obtain a firearm license, the

applicant had to demonstrate "proper cause," that is, "a special need for self-

protection distinguishable from that of the general community." 

(citation omitted).   The Court held the Second Amendment protects an

individual's right to carry a handgun for self-defense both in and outside the

home. 

. The Court further held the proper cause requirement was

unconstitutional because it "prevent[ed] law-abiding citizens with ordinary



                                                                          A-3899-21
                                       15
self-defense needs from exercising their right to keep and bear arms." 

.

        Importantly, as we have already noted, Bruen fashioned an entirely new

analytical framework for resolving Second Amendment challenges. Under the

new standard, the government must justify its regulation by demonstrating that

it is "consistent with the Nation's historical tradition of firearm regulation." 

. The Court explained this "analogical reasoning requires only that

the government identify a well-established and representative historical

analogue, not a historical twin. So even if a modern-day regulation is not a

dead ringer for historical precursors, it still may be analogous enough to pass

constitutional muster."      

 (emphasis in original).        The Court

cautioned, however, that "courts should not 'uphold every modern law that

remotely resembles a historical analogue,' because doing so 'risk[s] endorsing

outliers that our ancestors would never have accepted.'"             

 (quoting

Drummond v. Robinson, 

 (3d Cir. 2021)). "To be clear," the

Court explained, "analogical reasoning under the Second Amendment is

neither a regulatory straightjacket nor a regulatory blank check." 

                                         IV.

        Petitioner argues the falsification disqualification provision runs afoul of

Bruen because "[a]t the time of our Nation's founding, a citizen could be the



                                                                             A-3899-21
                                         16
biggest liar in the country, yet still enjoy the right to keep and bear arms." We

note at the outset that petitioner's framing of the argument misconstrues the

falsification disqualification feature.    The provision does not account for,

much less depend on, the applicant's reputation for veracity, but rather looks at

the truthfulness of the information within the four corners of the application.

Although a falsification must be made knowingly to trigger disqualification,

this statutory provision focuses on the application, not the applicant.

      After carefully reviewing the text and underlying rationale of Bruen, we

hold the falsification disqualification provision survives Second Amendment

scrutiny notwithstanding that we cannot point to a historical analogue for it. 3

We need not cite historical precursors in this instance because the Bruen Court

has already clarified that "shall-issue" licensing regimes 4 are permitted under


3
   In his brief, petitioner states, "[c]ounsel is unaware of any regulation in
place against the general citizenry at the time of our Constitution’s framing
that barred citizens from exercising Second Amendment rights if they
incorrectly filled out a firearm permit application form, or for that matter, any
falsification allegation." We note the State in its responding brief has not
identified any historical analogue for the challenged falsification
disqualification provision.
4
   Bruen, 

 n.9. N.J.S.A. 2C:58-3 falls within the rubric of a
"shall issue" regime because an applicant may not be denied an FPIC or PPH
unless he or she is subject to a statutorily specified disability. See N.J.S.A.
2C:58-3(f) ("There shall be no conditions or requirements added to the form or
content of the application, or required by the licensing authority for the
issuance of a permit or identification card, other than those that are specifically


                                                                            A-3899-21
                                          17
the Second Amendment so long as they contain "narrow, objective, and

definitive standards to guide officials in determining whether applicants were

'in fact, "law-abiding, responsible citizens."'" State v. Wade, 

, 502 (App. Div. 2023) (quoting Bruen, 

 n.9), leave to

appeal denied, ___ N.J. ___ (2023). The Bruen Court recognized forty-three

states have shall-issue licensing regimes, stressing that "nothing in our analysis

should be interpreted to suggest the unconstitutionality [of those regimes]."

Bruen, 

 n.9; see Bruen, 

 (Kavanaugh, J.,

concurring) ("[T]he Court's decision does not prohibit States from imposing

licensing requirements for carrying a handgun for self-defense."); see also

M.U., 475 N.J. Super. at 204 n.11 ("Bruen emphasized that its holdings did not

effectuate a wholesale invalidation of the various states' gun licensing and

permit systems.").

      We deem it noteworthy that Bruen endorsed the concept of shall-issue

licensing regimes without citing any historical analogues. The Court, in other

words, acknowledged the constitutionality of modern licensing systems

without identifying a single example of an 18th Century statute or ordinance

requiring citizens to apply to a government agency for a permit before they
_____________________

set forth in this chapter."). We note petitioner does not dispute that he is
challenging portions of a "shall-issue" licensing regime.


                                                                           A-3899-21
                                       18
could purchase or carry a firearm. (Of course, there would be no precursors

for a falsification disqualification provision if there are no historical analogue s

for modern licensing systems requiring gun permit applicants to submit a

completed application.)

      Relatedly, the Court expressly recognized modern gun-permitting

regimes "often require applicants to undergo a background check. . . ." Bruen,

 n.9. But again, the Court did not mention any jurisdiction in

early America that required prospective gun owners to undergo a background

check by a government agency.

      The Court's general acceptance of background checks provides important

guidance in addressing the novel constitutional question before us. Requiring

applicants to answer questions truthfully on a form is no more intrusive of

Second Amendment rights than requiring background checks.               Cf. United

States v. Holden, 

 (7th Cir. 2023) (noting in a criminal

prosecution for making a false statement to a firearms dealer that "Congress is

entitled to require would-be purchasers to provide information—their names,

addresses, Social Security numbers, criminal histories, and so on . . . . The

power to collect accurate information is of a different character—and stands

on a firmer footing—than the power to prohibit particular people from owning

guns."). Indeed, answering the questions on an application form is the initial



                                                                             A-3899-21
                                        19
step—and an essential part—of the background check process. Those answers

provide basic information to facilitate a follow-up inquiry, if needed, by the

agency responsible for conducting the background check.

      Read in context, it is clear that Bruen's focus on the Nation's early

history of firearm regulation pertains to the substantive criteria used by

licensing regimes to deny applications, not to whether states may require

citizens to file a truthful application for a gun permit.       The falsification

disqualification provision is sui generis among the statutory disqualification

criteria set forth in N.J.S.A. 2C:58-3. Unlike the other disabilities, it does not

focus on the applicant's background or suitability to possess a firearm. Rather,

it is designed to safeguard the integrity of the licensing and background check

process. In practical effect, this provision establishes a procedural bar to the

issuance of an FPIC or PPH, not a substantive one. Stated another way, this

provision does not impose substantive limitations on who is qualified to obtain

a firearm.   Indeed, anyone, regardless of their background or physical or

mental health, can avoid falsification disqualification simply by telling the

truth on their application.

       Because Bruen allows states to require individuals to apply for a firearm

license/permit, it logically follows that those states may also require the

information in the application be complete and truthful.            We deem a



                                                                           A-3899-21
                                       20
falsification disqualification feature integral to and inseparable from the

inherent structure of a gun-licensing regime.       Because the United States

Supreme Court has already endorsed the concept of shall-issue licensing

regimes, we must presume that an implementing law safeguarding the integrity

of any such regime by insisting the application is complete and truthful will

likewise pass constitutional muster.

      Relatedly, and even more simply, Bruen carefully instructs:

            When the Second Amendment's plain text covers an
            individual's conduct, the Constitution presumptively
            protects that conduct. The government must then
            justify its regulation by demonstrating that it is
            consistent with the Nation's historical tradition of
            firearm regulation. Only then may a court conclude
            that the individual's conduct falls outside the Second
            Amendment's "unqualified command."

            [Id. at 2129-30 (emphasis added) (quoting Konigsberg
            v. State Bar of Cal., 

, 50 n.10 (1961)).]

      It is clear the Second Amendment's plain text does not cover lying on an

application. That conduct is simply not protected by the Second Amendment

and so regulation of that conduct is not subject to the analogical test.

Petitioner's facial challenge to the falsification disqualification feature thus

fails under the threshold question raised in the Bruen analysis.

                                       V.




                                                                         A-3899-21
                                       21
      We next consider whether the testimony elicited at the hearing

established by a preponderance of the evidence that petitioner knowingly

falsified any information on his application, triggering disqualification for

falsification.   We address petitioner's three arguments: (1) the inaccurate

answer on his FPIC/PPH application was not material to the determination of

whether he is fit to purchase a gun, (2) he "cured" any deficiency in his

application by explaining and retracting his answer during the hearing, and (3)

the trial court erred in concluding he knowingly falsified information on his

application.

                                       A.
                                    Materiality

      Petitioner contends the falsification disqualification provision applies

only to material falsifications and that his answer to the question pertaining to

past treatment for a mental or psychiatric condition was "irrelevant and

immaterial to his current eligibility [for an FPIC or PPH]."          He further

contends "what matters is not whether a person falsifies, but whether the

falsification is relevant and material."

      We disagree. Petitioner's argument belies the plain language of N.J.S.A.

2C:58-3(c)(3), which expressly and unequivocally provides that an FPIC or

PPH shall not be issued to an applicant "who knowingly falsifie[d] any

information on the application form. . . ."       (emphasis added).   "Where 'a

                                                                          A-3899-21
                                           22
statute's plain language is clear, we apply that plain meaning and end our

inquiry.'" In re Registrant H.D., 

, 418 (2020) (quoting Garden

State Check Cashing Serv., Inc. v. Dep't of Banking & Ins., 

(2019)).      Courts must not "rewrite a plainly-written enactment of the

Legislature nor presume that the Legislature intended something other than

that expressed by way of the plain language." State v. Frye, 

(2014) (quoting O'Connell v. State, 

 (2002)). It is also well-

established that when the Legislature uses the word "any," the intent is to

cover all applications. See State v. Pleva, 

 (App.

Div. 1985).

       Petitioner asks us to engraft onto N.J.S.A. 2C:58-3(c)(3) the materiality

element of the crime of perjury found in N.J.S.A. 2C:28-1(b).5          We have


5
    N.J.S.A. 2C:28-1(b) provides:

              Falsification is material, regardless of the
              admissibility of the statement under rules of evidence,
              if it could have affected the course or outcome of the
              proceeding or the disposition of the matter. It is no
              defense that the declarant mistakenly believed the
              falsification to be immaterial. Whether a falsification
              is material is a question of law.

       In State v. Anderson, 

 (1992), the Court invalidated the last
sentence in N.J.S.A. 2C:28-1(b), holding the materiality of a falsehood is an
element of perjury that must be proved to a jury beyond a reasonable doubt.

.


                                                                          A-3899-21
                                        23
neither cause nor authority to rewrite the falsification disqualification

provision as petitioner suggests. For one thing, N.J.S.A. 2C:58-3(c)(3) is not a

criminal statute. Petitioner has not been charged with an offense for providing

false information. The material elements of the crime of perjury have no

relationship to the purpose and scope of the falsification disqualification

provision. Unlike a criminal falsification statute, this regulatory provision is

not designed to punish. Rather, it is designed to safeguard the integrity of

New Jersey's gun-permit system.

      But even more fundamentally, the comprehensive definition of

materiality in the perjury statute shows the Legislature knows full well how to

indicate when a falsehood needs to be material to warrant condemnation under

a particular statute. See N.J.S.A. 2C:28-1(b). Notably, the crime of false

swearing, N.J.S.A. 2C:28-2, does not require that the false statement be

material because it does not incorporate by reference N.J.S.A. 2C:28-1(b). See

State v. Neal, 

 (App. Div. 2003). So too, the

unsworn falsification offense, N.J.S.A. 2C:28-3, which applies to statements

made on a form bearing notice that false statements made therein are

punishable, does not incorporate by reference the materiality element from the

perjury statute. These examples confirm a falsehood must be material only

when the Legislature expressly so provides.      We add that the falsification



                                                                         A-3899-21
                                      24
crime specifically referenced in the application's warning, N.J.S.A. 2C:39-

10(c), likewise does not include or incorporate a materiality element. That

statute provides:

            Any person who gives or causes to be given any false
            information, or signs a fictitious name or address, in
            applying for a firearms purchaser identification card, a
            permit to purchase a handgun, a permit to carry a
            handgun, a permit to possess a machine gun, a permit
            to possess an assault firearm, or in completing the
            certificate or any other instrument required by law in
            purchasing or otherwise acquiring delivery of any
            rifle, shotgun, handgun, machine gun, or assault
            firearm or any other firearm, is guilty of a crime of the
            third degree.

            [N.J.S.A. 2C:39-10(c) (emphasis added).]

      Although we need not look beyond the plain text of the falsification

disqualification statute, we note that invoking FPIC/PPH disqualification when

any falsification is tendered is consistent with the application's underlying

function, which is to provide information to facilitate the police chief's

background investigation. See H.D., 241 N.J. at 418.

      In reaching that conclusion, we acknowledge and stress that a "yes"

answer to the psychiatric treatment question does not by itself provide a basis

upon which to deny an FPIC/PPH application. Petitioner might well be correct

that ultimately, his prior mental health treatment has little or no bearing on his

present fitness to own a firearm. But petitioner's argument puts the cart before



                                                                           A-3899-21
                                       25
the proverbial horse.     The requirement for complete truthfulness on an

FPIC/PPH application is not just designed to disclose circumstances that

would automatically justify denying the application. Rather, the requirement

for absolute truthfulness serves to facilitate the police chief's background

investigation by revealing information that may warrant a follow-up inquiry.

See N.J.S.A. 2C:58-3(e) ("[T]he chief police officer or the superintendent shall

proceed to investigate the application to determine whether or not the applicant

has become subject to any of the disabilities set forth in this chapter."). The

follow-up investigation may lead to other relevant information regarding the

applicant's present fitness to be entrusted with a firearm.

      It bears noting the Legislature's decision to mandate disqualification for

any knowingly false statement serves as an incentive for FPIC/PPH applicants

to be complete in their answers. It also discourages applicants from making

their own judgment of what information might be relevant. Indeed, that is

exactly what happened here.       At one point during the hearing, petitioner

claimed he did not reveal his prior mental health treatment by a psychiatrist in

his application because the psychiatrist did not deem it a "significant mental

illness." Petitioner thus took it upon himself to decide his prior psychiatric

treatment was immaterial, that is, irrelevant to his fitness to purchase a

firearm. But under the de novo review framework recognized in Osworth, it is



                                                                         A-3899-21
                                        26
for a Law Division judge after a hearing, not an applicant before the hearing,

to determine whether evidence of mental health treatment warrants denying an

FPIC/PPH application. 

.

      We add the FPIC/PPH application form gives clear warning that no false

or incomplete statement will be tolerated. The form states:

            I hereby certify that the answers given on this
            application are complete, true and correct in every
            particular. I realize that if any of the foregoing
            answers made by me are false, I am subject to
            punishment. Falsifications on this form is a crime of
            the third degree as provided in N.J.S.[A.] 2C:39-10(c).

            (emphasis added).

      But even if we accepted, for the sake of argument, that the Legislature

intended only to disqualify applications with material falsifications,

petitioner's application must still be denied on that ground. N.J.S.A. 2C:58-

3(e) expressly provides the certification form prescribed by the State Police

superintendent pursuant to N.J.S.A. 2C:58-3(b)(1) must set forth:

            whether the applicant has been attended, treated or
            observed by any doctor or psychiatrist or at any
            hospital or mental institution on an inpatient or
            outpatient basis for any mental or psychiatric
            condition, giving the name and location of the doctor,
            psychiatrist, hospital or institution and the dates of the
            occurrence. . . .

This shows a legislative determination that this information is relevant and

material for the background investigation into an applicant's fitness to

                                                                         A-3899-21
                                       27
purchase a firearm. The undeniable relationship between mental illness and

the numerous mass-shootings around the Nation plainly shows why the

Legislature deemed it necessary to require gun permit applicants not only to

disclose whether they have ever been treated by a doctor or psychiatrist for a

mental or psychiatric condition, but also to disclose when and where the

treatment occurred so that a police chief can conduct an appropriate follow-up

inquiry.6

                                        B.
                                    Retraction



6
    We note the disclaimer portion of the application form states in pertinent

part:

              I am aware of my rights under N.J.S.A. 30:4-24.3,
             and the Health Insurance [Portability and]
             Accountability Act (HIPPA), 45 C.F.R. 164-50, and
             consent to the disclosure of my mental health records,
             including disclosure of the fact that said records may
             have been expunged, to the [c]hief of [p]olice and the
             [s]uperintendent of State Police, or their designees, for
             the purpose of verifying my firearms permit
             application and my fitness to own a firearm under
             N.J.S.A. 2C:58-3.         I understand that this
             authorization shall be considered sufficient
             authorization for the release of records or for the
             disclosure of the fact of the expungement.

             (emphasis in original).



                                                                         A-3899-21
                                        28
      Petitioner argues he "cured" any falsifications by amending and

retracting his application answer during the hearing. He notes his "disclosure

[that he had been treated by a psychiatrist] occurred before any decision was

made regarding his application by the [c]ourt below and against petitioner's

self-interest since no one else was even aware of it."

      In support of his argument, petitioner asks us to incorporate the

"retraction" affirmative defense to a criminal prosecution for perjury or false

swearing.7 But as we have already noted, petitioner has not been charged with

a crime and so an "affirmative defense" that can be raised in a criminal

prosecution has no bearing on a noncriminal, regulatory provision.            See

N.J.S.A. 2C:13-1(c). If the Legislature meant to allow false statements on an

application to be corrected at the hearing authorized by N.J.S.A. 2C:58-3(d), it

would have said so.

      We add that unlike perjury, false swearing, and unsworn falsification to

authorities, the falsification offense specifically referenced in the FPIC

application, N.J.S.A. 2C:39-10(c), does not expressly incorporate by reference

the retraction affirmative defense set forth in N.J.S.A. 2C:28-1(d). In other

7
  Under N.J.S.A. 2C:28-1(d), retraction is an affirmative defense if: "the actor
retracted the falsification in the course of the proceeding or matter in which it
was made prior to the termination of the proceeding or matter without having
caused irreparable harm to any party."



                                                                          A-3899-21
                                       29
words, the crime specifically addressing false information on an FPIC

application does not recognize a retraction defense.     Since the Legislature

clearly knows how to incorporate the retraction affirmative defense codified in

N.J.S.A. 2C:28-2(d) by reference, we presume its omission from the crime

designed specifically to punish falsifications in an FPIC/PPH application was

intentional. See Frye, 

 (Courts must not "'presume that the

Legislature intended something other than that expressed by way of the plain

language.'") (quoting O'Connell, 171 N.J. at ).     In sum, we read N.J.S.A.

2C:58-3(c) to mean an FPIC/PPH application that includes a knowing

falsehood is disqualified at the moment it is filed and cannot be rehabilitated

by an admission made later at a Law Division hearing.

      We note, moreover, that in this instance, petitioner did not retract his

falsification on his own initiative. This is not a situation where an applicant

withdrew the application and replaced it with one that included completely

accurate information. Petitioner's false answer was first exposed during the

hearing while being cross-examined by the prosecutor. As the trial court aptly

noted, when asked a direct question, and after taking "a very long pause,"

petitioner for the first time admitted he had in fact visited a psychiatrist. By

failing to disclose his mental health treatment in his application, petitioner

precluded the police chief from investigating his mental health history prior to



                                                                         A-3899-21
                                      30
the hearing.    The admission thus came too late to avoid the mandatory

disqualification feature.

      Finally, with respect to petitioner's retraction contention, we reject his

argument that "[a]ll NJ FPIC disqualifiers have potential 'cures,' which make

applicants eligible when they previously may not have been." In support of

that argument, petitioner points to the fact that a disqualifying restraining

order can be dismissed or vacated, alcoholics can obtain a professional

certification indicating they are safe to handle firearms, a minor can reach the

age of majority, and convicted felons may obtain an expungement.             See

N.J.S.A. 2C:58-3(c)(1)-(4).

      That is all true. But those examples of changed circumstances do not

support petitioner's argument that a knowing falsification in an application can

be rehabilitated through retraction at a Law Division hearing on de novo

review of a denial by the police chief. Any such falsification could result in a

police chief approving a permit request that might otherwise have been denied.

In that event, there would be no opportunity for a belated "retraction" at a

hearing because no hearing would be convened.

                                      C.
                        Finding of Knowing Falsification

      We next turn to petitioner's contention the court erred in finding he

knowingly falsified information on his application. As we have noted, we are

                                                                         A-3899-21
                                      31
bound to accept the trial court's fact findings in a gun permit hearing if they

are supported by substantial credible evidence. See J.W.D., 

-

17.

      Here, the trial court made extensive factual findings with regard to the

falsification, and those findings are based on petitioner's own testimony and

the trial court's assessment of his credibility. We reproduce the trial court's

thorough explanation for its conclusion:

                  I need to be clear about this for the record.
            When he's asked about this initially, he has a clear
            recollection of seeing a psychiatrist, I mean there's
            some waffling, first he says does a psychologist count.
            Then again I think there's a clarification that in fact
            this was a psychiatrist. . . .

                  I asked you whether or not you did any research
            before filling out the application. You said you did,
            some online articles. You gave an explanation, okay,
            as to why you answered no. You tried to explain that
            the reason why you answered no was, that at the time
            you answered that question, you recalled seeking help
            for this mental block, with a psychiatrist, but you
            didn't feel that whatever you were treated for,
            whatever you sought that help for, was within the
            scope of what you should have disclosed in this
            question. Okay?

                  Okay, if you're being honest, that's a reasonable
            explanation . . . Now mind you, I have no other
            evidence before me regarding your past psychological
            or psychiatric treatment . . . This is coming all from
            you. Okay. So I have to make a determination. . . .




                                                                        A-3899-21
                                      32
      That is the problem here. Okay? Because then I
have to decide, do I accept what you're telling me, all
right, where you contradict yourself completely,
within a space of a few minutes, when it deals with
whether or not you've ever been treated by a
psychiatrist, how do I know you're telling the truth?
How do I know you didn't seek treatment for some
other condition? Okay.

       Now when I add to that the fact that you
testified, and there's nothing wrong with seeking
marriage counseling, or counseling before you,
because you go through a difficult situation . . . .

       Okay, so I'm left with making credibility
findings here. And I simply cannot ignore that you
give me a detailed explanation as why you answer no,
and then you completely contradict yourself and say
well it really didn't come to mind at all.

       For that reason, I do find that the State has met
its burden by a preponderance of the evidence, that
you've knowingly falsified your FPIC application. It's
common sense. How could I conclude otherwise?
Okay. Because if I conclude otherwise, I would have
to accept that your initial answer to me with your
explanation that you sought help or treatment for a
mental block and you saw a psychiatrist for a certain
period of time. And you did research online when you
answered the application. And you didn't feel that
whatever you went to the psychiatrist for and sought
treatment for, wasn't within the scope of that question.
If I'm to accept that, well it didn't really come to mind,
how can I ignore that you gave me completely
incorrect and false answer to when you were first
asked about that. How do I ignore that? I can't . . . .

       So not only do I find that there's been knowing
falsification, you told me at the time you answered no,
you were aware and recalled that you had seen a

                                                             A-3899-21
                           33
               psychiatrist. You told me that. Those are your words.
               I'm not making this up. These are your words. And
               it's not only the knowing falsification, it's the
               contradictory answers that give me concern.

      Given the deferential standard of our review of fact findings, we have no

basis upon which to disturb the trial court's conclusion that petitioner

knowingly falsified information on his application.         Despite petitioner's

claims, the trial court did not inappropriately consider petitioner's mental

health or treatment history. The trial court properly focused on petitioner's

failure to disclose his mental health treatment on his FPIC/PPH application

and on the contradictory statements he made during the hearing.        The trial

court mentioned petitioner's mental health to express concern about his

credibility, commenting, "how do I know you're telling the truth? How do I

know you didn't seek treatment for some other condition?" We see nothing

inappropriate in the court posing those rhetorical questions in the context of

deciding whether petitioner had knowingly falsified information on h is

application.     Indeed, as we have noted, falsification disqualification was

properly invoked in this case in part because petitioner's inaccurate answer

inhibited the police chief from investigating "whether or not the applicant has

become subject to any of the disabilities set forth in this chapter." N.J.S.A.

2C:58-3(e).

                                       VI.

                                                                         A-3899-21
                                        34
      Finally, we turn to petitioner's contention the trial court erred in denying

his application on the grounds that issuing an FPIC or PPH would not be in the

interest of public health, safety or welfare pursuant to N.J.S.A. 2C:58-3(c)(5).

Petitioner repeats the constitutional arguments raised in M.U. See M.U., 475

N.J. Super. at 169-71. He also contends the trial court failed to explain how

and why he constitutes a threat if he was allowed to purchase a gun.

      As a general proposition, under the doctrine of constitutional avoidance,

courts "strive to avoid reaching constitutional questions unless required to do

so." Comm. to Recall Robert Menendez from the Off. of U.S. Senator v.

Wells, 

 (2010). Relatedly, "as a matter of judicial restraint,

'courts should not decide cases where a judgment cannot grant relief.'"

Marjarum v. Twp. of Hamilton, 

 (App. Div. 2000)

(quoting Cinque v. N.J. Dep't of Corrs., 

 (App.

Div. 1993)).   Here, as-applied constitutional scrutiny of the public health,

safety and welfare provision, which has since been amended, see supra note 2,

could have no bearing on the ultimate outcome of this appeal since denial of

petitioner's application is dictated by the falsification disqualification

provision. Therefore, we need not address the trial court's determination that

petitioner is unfit to purchase a firearm pursuant to N.J.S.A. 2C:58-3(c)(5).

      Affirmed.



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                                       35