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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS R. ROGERS, and
ASSOCIATION OF NEW JERSEY RIFLE
& PISTOL CLUBS, INC.,
Plaintiffs,
v.
GURBIR GREWAL, in his official capacity
as Attorney General of New Jersey,
PATRICK J. CALLAHAN, in his official
capacity as Acting Superintendent of the New
Jersey Division of State Police,
KENNETH J. BROWN, JR., in his official
capacity as Chief of the Wall Township
Police Department,
JOSEPH W. OXLEY, in his official capacity
as Judge of the Superior Court of New Jersey,
Law Division, Monmouth County, and
N. PETER CONFORTI, in his official
capacity as Judge of the Superior Court of
New Jersey, Law Division, Sussex County,
Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
David H. Thompson*
Peter A. Patterson*
John D. Ohlendorf*
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
(202) 220-9601 (fax)
dthompson@cooperkirk.com

Daniel L. Schmutter
HARTMAN & WINNICKI, P.C.
74 Passaic Street
Ridgewood, New Jersey 07450
(201) 967-8040
(201) 967-0590 (fax)
dschmutter@hartmanwinnicki.com

*Pro hac vice application forthcoming
Attorneys for Plaintiffs

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LOCAL CIVIL RULE 10.1 STATEMENT
The mailing addresses of the parties to this action are:
Thomas R. Rogers
3005 Clayton Dr.
Wall Township, NJ 07719
Association of New Jersey Rifle & Pistol Clubs, Inc.
5 Sicomac Road
Suite 292
North Haledon, New Jersey 07508
Gurbir Grewal
Office of the Attorney General
RJ Hughes Justice Complex
25 Market Street, Box 080
Trenton, NJ 08625
Patrick J. Callahan
Office of the Superintendent
New Jersey State Police
P.O. Box 7068
West Trenton, NJ 08628
Kenneth Brown Jr.
Wall Township Police Department
2700 Allaire Rd.
Wall Township, NJ 07719
Joseph W. Oxley, J.S.C.
Superior Court of New Jersey
Monmouth County Courthouse
71 Monument Park, 2nd Floor
Freehold, NJ 07728
N. Peter Conforti, J.S.C.
Superior Court of New Jersey
Sussex County Courthouse
43-47 High Street, 2nd Floor
Newton, NJ 07860

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INTRODUCTION
Plaintiffs Thomas R. Rogers and the Association of New Jersey Rifle & Pistol Clubs, Inc.
(collectively “Plaintiffs”), by and through the undersigned attorneys, file this Complaint against
the above-captioned Defendants, in their official capacities as the Attorney General of New Jersey
and state and local officials responsible under New Jersey law for administering and enforcing the
State’s laws and regulations governing the carrying of firearms outside the home. Plaintiffs seek
declaratory and injunctive relief: a declaration that New Jersey’s limitation of the right to carry
firearms to those who can satisfy licensing officials that they have a “justifiable need” to exercise
that right is unconstitutional under the Second and Fourteenth Amendments to the United States
Constitution, and an injunction compelling Defendants to refrain from enforcing that invalid limit
and to issue handgun carry permits to Plaintiffs or to otherwise allow Plaintiffs to exercise their
right to carry firearms outside the home. In support of their Complaint against Defendants,
Plaintiffs hereby allege as follows:
1.

The Second Amendment to the United States Constitution guarantees “the right of

the people to keep and bear Arms.” U.S. CONST. amend. II. When the People, by enacting that
amendment, enshrined in their fundamental charter the right to “carry weapons in case of
confrontation” for the “core lawful purpose of self-defense,” District of Columbia v. Heller, 554
U.S. 570, 592, 630 (2008), they did not mean to leave the freedom to exercise that right at the
mercy of the very government officials whose hands they sought to bind. No, “[t]he very
enumeration of the right takes out of the hands of government . . . the power to decide on a caseby-case basis whether the right is really worth insisting upon.” Id.
2.

In defiance of that constitutional guarantee, New Jersey has seized precisely the

power forbidden it by the Second Amendment: the power to decide, on a case-by-case basis,

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whether an applicant for a permit to “carry weapons in case of confrontation,” id. at 592, has, in
their estimation, shown a sufficiently “justifiable need” that a permit should issue, N.J.S.A. 2C:584(c).
3.

Worse still, New Jersey has made clear that a general desire to carry a handgun for

the purpose of self-defense—“the central component” of the Second Amendment, Heller, 554 U.S.
at 599 (emphasis added)—is not a sufficiently good reason to exercise the right. Instead, according
to New Jersey, an ordinary citizen must establish specific or serious threats or previous attacks
which put him in special and unavoidable danger to obtain a permit from the State to carry a
firearm in public. That restriction is akin to a state law concluding that the general desire to
advocate for lawful political change is not a sufficiently “justifiable need” to exercise the right to
free speech, and it cuts to the very core of the Second Amendment, no less than such a restriction
would gut the First.
4.

Indeed, the practical effect of New Jersey’s “justifiable need” requirement is to

make it wholly illegal for typical law-abiding citizens to carry handguns in public—for by
definition, these ordinary citizens cannot show that they face a serious or specific, unavoidable
threat that poses a special danger to their safety.
5.

Plaintiffs Rogers is an ordinary, law-abiding citizen of New Jersey who wishes to

carry firearms outside the home for the purpose of self-defense. He has passed all required
background checks, completed all required firearm training courses, and met every other
qualification imposed by New Jersey on the eligibility for a permit to carry firearms in public—
except that, like the vast majority of ordinary, law-abiding New Jersey residents, he cannot
establish a unique clear and present threat to his safety. Accordingly, Defendants Brown and Oxley
determined that Mr. Rogers has not shown a “justifiable need” to exercise his Second Amendment

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rights, and they denied his permit application. That result simply cannot be squared with the rights
guaranteed by the Second Amendment.
6.

Plaintiffs acknowledge that the result they seek is contrary to Drake v. Filko, 724

F.3d 426 (3d Cir. 2014), but, for the reasons explained in Wrenn v. District of Columbia, 864 F.3d
650 (D.C. Cir. 2017), that case was wrongly decided. They therefore institute this litigation to
vindicate their Second Amendment rights and to seek to have Drake overruled.
JURISDICTION AND VENUE
7.

This Court has subject-matter jurisdiction over Plaintiffs’ claim under 28 U.S.C. §§

1331 and 1343.
8.

Plaintiffs seek remedies under 28 U.S.C. §§ 1651, 2201, and 2202 and 42 U.S.C.

§§ 1983 and 1988.
9.

Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) & (b)(2).
PARTIES

10.

Plaintiff Thomas R. Rogers is a citizen of the United States and a resident and

citizen of the State of New Jersey. He resides at 3005 Clayton Dr., Wall Township, NJ 07719.
11.

Plaintiff Association of New Jersey Rifle & Pistol Clubs, Inc. (the “ANJRPC”) is

a not for profit membership corporation, incorporated in the State of New Jersey in 1936 and
represents its members. Its address is 5 Sicomac Road, Suite 292, North Haledon, New Jersey
07508. ANJRPC represents the interests of target shooters, hunters, competitors, outdoors people
and other law abiding firearms owners. Among the ANJRPC’s purposes is aiding such persons in
every way within its power and supporting and defending the people’s right to keep and bear arms,
including the right of its members and the public to purchase, possess, and carry firearms. The
New Jersey restrictions on the public carrying of firearms at issue in this case are thus a direct

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affront to ANJRPC’s central mission. ANJRPC has tens of thousands of members who reside in
New Jersey. ANJRPC brings the claims herein on behalf of its members. Plaintiff Rogers is a
member of ANJRPC.
12.

Defendant Gurbir Grewal is the Attorney General of New Jersey. As Attorney

General, he exercises, delegates, or supervises all the powers and duties of the New Jersey
Department of Law and Public Safety, including the Division of State Police within that
Department, which is responsible under N.J.S.A. 2C:58-4 for executing and enforcing New
Jersey’s laws and regulations governing the carrying of firearms in public. His official address is
Office of The Attorney General, RJ Hughes Justice Complex, 25 Market Street, Box 080, Trenton,
NJ 08625. He is being sued in his official capacity.
13.

Defendant Patrick J. Callahan is the Acting Superintendent of the New Jersey

Division of State Police. As Acting Superintendent, subject to the oversight and supervision of the
Attorney General, he exercises, delegates, or supervises all the powers and duties of the New Jersey
Division of State Police, which is responsible under N.J.S.A. 2C:58-4 for executing and enforcing
New Jersey’s laws and regulations governing the carrying of firearms in public. His official
address is Office of the Superintendent, New Jersey State Police, P.O. Box 7068, West Trenton,
NJ 08628. He is being sued in his official capacity.
14.

Defendant Kenneth J. Brown, Jr. is the Chief Police Officer of Wall Township,

New Jersey. Pursuant to N.J.S.A. 2C:58-4, he is responsible for receiving applications from
residents of Wall Township for a permit to carry a handgun, investigating the applicant, and either
approving or denying the application. His official address is Wall Township Police Department,
2700 Allaire Rd., Wall Township, NJ 07719. He is being sued in his official capacity.

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15.

Defendant Joseph W. Oxley is a Judge of the Superior Court of New Jersey, Law

Division, Monmouth County. Pursuant to N.J.S.A. 2C:58-4, he is responsible for reviewing
applications from residents of Monmouth County for a permit to carry a handgun, once those
applications have been approved or denied by the Chief Police Officer or Superintendent, and
either issuing or denying a permit. His official address is Monmouth County Courthouse, 71
Monument Park, 2nd Floor, Freehold, NJ 07728. He is being sued in his official capacity, insofar
as he performs the functions delegated him by N.J.S.A. 2C:58-4.
16.

Defendant N. Peter Conforti is a Judge of the Superior Court of New Jersey, Law

Division, Sussex County. Pursuant to N.J.S.A. 2C:58-4, he is responsible for reviewing
applications from residents of Sussex County for a permit to carry a handgun, once those
applications have been approved or denied by the Chief Police Officer or Superintendent, and
either issuing or denying a permit. His official address is Sussex County Courthouse, 43-47 High
Street, 2nd Floor, Newton, NJ 07860. He is being sued in his official capacity, insofar as he
performs the functions delegated him by N.J.S.A. 2C:58-4.
FACTUAL ALLEGATIONS
New Jersey’s “Justifiable Need” Requirement
17.

New Jersey law generally forbids any person to “ha[ve] in his possession any

handgun . . . , without first obtaining a permit to carry the same.” N.J.S.A. 2C:39-5(b). While state
law provides certain exceptions to this general ban—including one for “keeping or carrying [a
firearm] about [one’s] place of business, residence, premises or other land owned or possessed by
him,” id. § 2C:39-6(e), these exceptions do not allow the carrying of a handgun in public, either
openly or concealed, without first obtaining a permit. Violating this ban is a crime in the second
degree, punishable by between five and ten years imprisonment and a fine of up to $150,000. Id.
§§ 2C:39-5(b), 2C:43-3(a)(2), 2C43-6(a)(2).
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18.

New Jersey accordingly allows an individual to carry a handgun in public only if

he first obtains a permit to do so (a “Handgun Carry Permit”). To be eligible for a Handgun Carry
Permit, an applicant must satisfy numerous criteria. For example, he must not have been convicted
of any crime or offense involving an act of domestic violence; must not be addicted to controlled
substances, mentally infirm, or an alcoholic; must not be subject to certain restraining orders; and
must not be listed on the FBI’s Terrorist Watchlist. Id. §§ 2C:58-4(c); 2C:58-3(c). An applicant
must also pass criminal and mental health background checks, id. § 2C:58-4(c), must provide three
reputable references who certify that he “is a person of good moral character,” id. § 2C:58-4(b),
and must have satisfied extensive firearms safety training requirements, N.J.A.C. 13:54-2.4(b).
19.

In addition to these rigorous screening and training requirements, a law-abiding

citizen may only be granted a Handgun Carry Permit if he demonstrates “that he has a justifiable
need to carry a handgun.” N.J.S.A. 2C:58-4(c).
20.

The New Jersey Division of State Police has issued regulations further

implementing the statutory requirements governing Handgun Carry Permits. See N.J.A.C. 13:542.1 et seq. Those regulations provide that “in the case of a private citizen,” the “justifiable need”
requirement is satisfied only if the applicant can “specify in detail the urgent necessity for selfprotection, as evidenced by serious threats, specific threats, or previous attacks, which demonstrate
a special danger to the applicant’s life that cannot be avoided by reasonable means other than by
issuance of a permit to carry a handgun.” Id. § 13:54-2.4(d)(1). Those regulations further provide
that “[w]here possible the applicant shall corroborate the existence of any specific threats or
previous attacks by reference to reports of such incidents to the appropriate law enforcement
agencies . . . .” Id.

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21.

In further interpreting this “justifiable need” requirement, New Jersey’s Supreme

Courts has determined that “[g]eneralized fears for personal safety are inadequate, and a need to
protect property alone does not suffice.” In re Preis, 573 A.2d 148, 152 (N.J. 1990).
22.

Accordingly, typical law-abiding citizens of New Jersey—the vast majority of

responsible citizens who cannot “demonstrate a special danger to [their] life” as “evidenced by
serious threats, specific threats, or previous attacks,” N.J.A.C. 13:54-2.4(d)(1)—effectively remain
subject to a flat ban on carrying handguns outside the home.
New Jersey’s Handgun Carry Permitting Process
23.

To obtain a Handgun Carry Permit, an individual must first apply to the Chief

Police Officer of the municipality where he resides—or, if he resides out of State or in a
municipality without a Chief Police Officer, to the Superintendent of State Police. N.J.S.A. 2C:584(c). Only if the officer (or the Superintendent) concludes, after investigation, that the applicant
meets all statutory requirements—including the “justifiable need” standard—may he approve an
application for a Handgun Carry Permit. Id.
24.

If the application is approved by the Chief Police Officer or Superintendent, the

applicant shall then present it to the Superior Court of the county where he resides. Id. § 2C:584(d). If the application is denied, the applicant may also appeal that denial to the Superior Court.
Id. § 2C:58-4(e). In either case, the Superior Court must then independently determine whether
the applicant has satisfied all statutory requirements and “has a justifiable need to carry a
handgun.” Id. § 2C:58-4(d).
25.

If the Superior Court concludes that these requirements are met, it may then issue

a Handgun Carry Permit—or, it may “at its discretion issue a limited-type permit which would
restrict the applicant as to the types of handguns he may carry and where and for what purposes

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such handguns may be carried.” Id. But the Superior Court is not bound by the decision of the
Chief Police Officer and can also deny a permit that was approved by the Chief Police Officer.
26.

In reviewing approved applications and issuing permits, the Superior Court acts as

an “issuing authority” and performs “essentially an executive function” that is “clearly non-judicial
in nature.” In re Preis, 573 A.2d at 151, 154.
Defendants’ Refusal to Issue Plaintiffs Handgun Carry Permits
27.

Plaintiff Rogers is an adult citizen and resident of New Jersey. He is not a law

enforcement official or a member of the armed forces, and he does not fall within any of the other
exceptions enumerated in N.J.S.A. 2C:39-6 to New Jersey’s ban on carrying handguns in public.
28.

Plaintiff Rogers does, however, possess all of the qualifications necessary to obtain

a Handgun Carry Permit that are enumerated in N.J.S.A. 2C:58-4; 2C:58-2(c). For example, he
has not been convicted of any crime of domestic violence; he is not addicted to controlled
substances, mentally infirm, or an alcoholic; he is not subject to any restraining orders; and he is
not listed on the FBI’s Terrorist Watchlist. He has also passed all required background checks, has
provide the three required references, and has satisfied the State’s firearms safety training
requirements.
29.

Plaintiff Rogers does not face any special danger to his life. He does, however,

desire to carry a handgun in public for the purpose of self-defense. Many years ago, Plaintiff
Rogers was robbed at gunpoint while working as the manager of a restaurant; and he currently
runs a large ATM business that causes him to frequently service ATM machines in high-crime
areas. Accordingly, Plaintiff Rogers desires to carry a handgun for self-defense when he is in
public, and he would do so now, were it not for Defendants’ enforcement of New Jersey’s ban on
the public carrying of handguns.

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30.

On January 11th, 2017, Plaintiff Rogers applied to Robert Brice, the then-Chief of

Police for Wall Township, the town where Mr. Rogers resides, for a permit to carry a handgun in
public.
31.

On August 15, 2017, after investigation, Defendant Kenneth Brown, Jr.—who by

that point had replaced Mr. Brice as Chief of Police for Wall Township—denied Plaintiff Rogers’s
application. Letter from Kenneth Brown, Jr., Chief of Police, to Mr. Tom Rogers (Aug. 15, 2017)
(attached as Exhibit 1). Defendant Brown did not determine that Mr. Rogers was ineligible for any
of the reasons enumerated in N.J.S.A 2C:58-3(c), nor did he dispute that Mr. Rogers is “thoroughly
familiar with the safe handling and use of handguns,” id. § 2C:58-4(c), as that phrase is defined in
N.J.A.C. 13:54-2.4(b). Instead, Chief Brown concluded that Mr. Rogers failed to show a
“justifiable need” to carry a firearm in public, because he did not “demonstrate a special danger to
the [his] life” on the basis of “serious threats, specific threats, or previous attacks.” N.J.S.A 2C:584(c); N.J.A.C. 13:54-2.4(d)(1).
32.

Plaintiff Rogers appealed Defendant Brown’s denial of his application to the

Superior Court of New Jersey, Law Division, Monmouth County.
33.

On January 2, 2018, Defendant Joseph W. Oxley, a judge of the Superior Court,

Law Division, Monmouth County, after a hearing on Plaintiff Rogers’s appeal, also denied his
application for a Handgun Carry Permit. Opinion and Order, In the Matter of the Appeal of Denial
of a Permit To Carry A Handgun For: Thomas Rogers, G.P. No. 2017-024 (N.J. Sup. Ct.
Monmouth Cty., Jan. 2, 2018) (attached as Exhibit 2). Like Defendant Brown, Defendant Oxley
did not determine that Mr. Rogers was ineligible for a permit or that he had failed to satisfy the
statutory and regulatory training requirements. Instead, Judge Oxley concluded that Mr. Rogers
failed to show a “justifiable need” to carry a firearm in public because he did not “demonstrate a

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special danger to the [his] life” on the basis of “serious threats, specific threats, or previous
attacks.” N.J.S.A 2C:58-4(c); N.J.A.C 13:54-2.4(d)(1).
34.

In light of Defendants’ denial of his application, Plaintiff Rogers continues to

refrain from carrying a handgun outside the home for self-defense in New Jersey for fear of arrest
and prosecution. Plaintiff Rogers would carry a handgun in public for self-defense in New Jersey
were it lawful for him to do so.
35.

Plaintiff ANJRPC has at least one member who has had an application for a

Handgun Carry Permit denied solely for failure to satisfy the “justifiable need” requirement. For
example, Kenneth George Warren is an adult citizen and resident of Sussex, New Jersey. Mr.
Warren possesses all necessary qualifications to obtain a Handgun Carry Permit and has passed all
required background checks and satisfied all other requirements. See N.J.S.A. 2C:58-4; 2C:582(c). Though he does not currently face any specific threats, Mr. Warren has been threatened
several times in the past, in both 2004 and 2008, and he frequently travels in remote areas for his
work. Accordingly, in 2017, Mr. Warren applied to the Superintendent of State Police for a permit
to carry a handgun in public for the purpose of self-defense. (Sussex currently has no Chief of
Police.) On or about October 11, 2017, Defendant Callahan approved Mr. Warren’s application,
contingent on a finding by a Superior Court judge of justifiable need. On January 31, 2018,
however, Defendant Conforti denied Mr. Warren’s application. Defendant Conforti found that Mr.
Warren satisfied all necessary training and eligibility requirements, but he concluded that he had
failed to show a “justifiable need” to carry a firearm in public because he did not “demonstrate a
special danger to [his] life” on the basis of “serious threats, specific threats, or previous attacks.”
N.J.S.A 2C:58-4(c); N.J.A.C 13:54-2.4(d)(1). In light of the denial of his application, Mr. Warren
continues to refrain from carrying a handgun outside the home for self-defense in New Jersey for

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fear of arrest and prosecution. Mr. Warren would carry a handgun in public for self-defense in
New Jersey were it lawful for him to do so.
36.

Plaintiff ANJRPC has numerous members who wish to carry a handgun outside the

home for self-defense but have not applied for a Handgun Carry Permit because they know that,
although they satisfy or can satisfy all other requirements of N.J.S.A. 2C:58-4, they are unable to
satisfy the “justifiable need” requirement. But for Defendants’ continued enforcement of the New
Jersey laws and regulations set forth above, those members would forthwith carry a handgun
outside the home for self-defense but refrain from doing so for fear of arrest and prosecution.
COUNT ONE
42 U.S.C. § 1983 Action for Deprivation of
Plaintiffs’ Rights under U.S. CONST. amends. II and XIV
37.

Plaintiffs incorporate by reference the allegations of the preceding paragraphs.

38.

The Second Amendment’s guarantee of “the right of the people to keep and bear

Arms” secures to law-abiding, responsible, adult citizens the fundamental constitutional right to
bear arms outside the home. U.S. CONST. amend. II.
39.

This Second Amendment right to bear arms in public applies against the State of

New Jersey under U.S. CONST. amend. XIV.
40.

This Second Amendment right to bear arms in public cannot be subject to a

government official’s discretionary determination of whether a law-abiding citizen has a
“justifiable need” to exercise that right.
41.

A government restriction that limits the right to bear arms in public to only those

few, favored citizens who can demonstrate that they face a special danger to their life effectively
operates as a flat ban on the carrying of firearms by typical law-abiding citizens, who by definition
cannot demonstrate this kind of atypical need to bear arms.

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42.

By infringing the Second Amendment right to bear arms in public in these ways,

the New Jersey laws and regulations discussed in the foregoing allegations violate the Second
Amendment, which applies to Defendants by operation of the Fourteenth Amendment, both
facially and as applied to Plaintiffs Rogers and members of ANJRPC, and they are therefore
invalid.
PRAYER FOR RELIEF
43.

WHEREFORE, Plaintiffs pray for an order and judgment:
a.

Declaring that New Jersey’s “justifiable need” requirement violates the

Second and Fourteenth Amendments and is thus devoid of any legal force or effect;
b.

Enjoining Defendants and their employees and agents from denying

Handgun Carry Permits to applicants on the basis of New Jersey’s “justifiable need”
requirement;
c.

Enjoining Defendants and their employees and agents from enforcing the

New Jersey laws and regulations establishing and defining the “justifiable need”
requirement, including N.J.S.A 2C:58-4(c) and N.J.A.C. 13:54-2.4(d);
d.

Ordering Defendants and their employees and agents to issue Handgun

Carry Permits to Plaintiffs Rogers and members of Plaintiff ANJRPC;
e.

Awarding Plaintiffs their reasonable costs, including attorneys’ fees,

incurred in bringing this action, pursuant to 42 U.S.C. § 1988; and
f.

Granting such other and further relief as this Court deems just and proper.

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Dated: February 5, 2018

Respectfully submitted,

David H. Thompson*
Peter A. Patterson*
John D. Ohlendorf*
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
(202) 220-9601 (fax)
dthompson@cooperkirk.com

s/Daniel L. Schmutter
Daniel L. Schmutter
HARTMAN & WINNICKI, P.C.
74 Passaic Street
Ridgewood, New Jersey 07450
(201) 967-8040
(201) 967-0590 (fax)
dschmutter@hartmanwinnicki.com

*Pro hac vice application forthcoming
Attorneys for Plaintiffs

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DECLARATION OF COUNSEL PURSUANT TO LOCAL CIV. R. 11.2
The undersigned hereby states that the matter in controversy is not the subject of any other
action pending in any court, or of any pending arbitration or administrative proceeding.
I declare under penalty of perjury that the foregoing is true and correct.

s/Daniel L. Schmutter
Daniel L. Schmutter
HARTMAN & WINNICKI, P.C.
74 Passaic Street
Ridgewood, New Jersey 07450
(201) 967-8040
(201) 967-0590 (fax)
dschmutter@hartmanwinnicki.com
Attorney for Plaintiffs
Dated: February 5, 2018

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