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In re Application of Borinsky

August 28, 2003

IN THE MATTER OF THE APPLICATION OF CHARLES P. BORINSKY
IN RE: RODGER D. JONES, CRAIG S. JOHNSON, ANTHONY T. TETI
IN THE MATTER OF THE APPLICATION OF JOSEPH W. HAFFNER, JR.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County in A-2891-01 and A-5911-01, and Cumberland County in A-4304-01, A-4305-01, and A-4307-01.

Before Judges Kestin, Eichen and Fall.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 4, 2002

These five appeals raise common issues. A-4304-01, A-4305-01, and A-4307-01 were consolidated by our order shortly after they were filed. We now consolidate them with A-2891-01 and A-5911-01 for the purposes of this opinion.

Charles P. Borinsky, Rodger D. Jones, Craig S. Johnson, Anthony T. Teti, and Joseph W. Haffner, Jr. (collectively, applicants) are all"bail enforcement" or"fugitive recovery" agents employed by various entities to investigate, locate, and apprehend criminal defendants who have"jumped bail," i.e., in the terms of the pertinent statute, N.J.S.A. 2C:29-7,"person[s] set at liberty... with... bail" who have"fail[ed] to appear""at a specified time and place in connection with any offense or any violation of law punishable by a period of incarceration[.]" Pursuant to N.J.S.A. 2C:58-4c and N.J.A.C. 13:54-2.1 to -2.10, each applicant sought a permit to carry a handgun from the Chief of Police of the municipality in which he resided. The Borinsky, Jones, Johnson and Teti applications were denied on the local level; the Haffner application was approved.

Each denied applicant appealed from the local action to the Law Division. See N.J.S.A. 2C:58-4e and N.J.A.C. 13:54-2.8. The Haffner matter came before the court by reason of the court's statutory and regulatory oversight responsibilities, pursuant to N.J.S.A. 2C:58-4d and N.J.A.C. 13:54-2.5, whenever an application is approved.

The Borinsky and Haffner matters were heard in Morris County; the Jones, Johnson, and Teti appeals were heard in Cumberland County. The court in Morris County upheld the Borinsky denial for reasons articulated on the record and in a superseding written opinion; and it disapproved the Haffner application for reasons expressed on the record. The court in Cumberland County granted the permits sought for reasons stated on the record.

The applicants appeal from the Morris County dispositions. The State appeals from the Cumberland County dispositions. The Attorney General, having appeared as amicus curiae in the Borinsky matter on the trial court level, sought and received leave to appear as amicus curiae on appeal in the Jones, Johnson and Teti matters, as well. We affirm the Morris County determinations, on a basis different from that employed by the trial judge therein; and we reverse the orders entered in Cumberland County.

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Jones, Johnson and Teti Matters - Cumberland County

Jones, Johnson and Teti, the respondents in the Cumberland County appeal, have filed a joint brief. They are all employed as fugitive recovery agents by Ameritac Security and Investigation, Inc. of Millville (Ameritac). Their applications for permits to carry handguns were denied by the Millville Chief of Police on the basis that each, as a private citizen, had failed to establish justifiable need to carry a handgun. These applicants contend that in each letter memorializing his denial, the Chief of Police inaccurately stated that the applicant was"employed by private security." See N.J.A.C. 13:54-2.4(d)(2).

The hearing before the trial court on April 9, 2002 was conducted on the basis of a stipulation that each applicant had demonstrated"thorough familiar[ity] with the safe handling and use of handguns," and that each was"a person of good character, not subject to any disabilities which would prevent [him] from obtaining a permit[.]" Each applicant testified that he had been employed by Ameritac since its inception in October 2001, commencing his fugitive recovery activities in December, after completing a training course. Jones and Johnson had previously been in the trucking industry and Teti had operated a body shop.

Ameritac's first fugitive apprehension occurred on January 1, 2002. In the three months between that date and the trial court hearing, the applicants had been shot at and threatened with a variety of weapons in the course of their work. Because they were unarmed, they carefully screened cases and declined to participate in those in which the fugitives were known to be armed and dangerous.

As a standard practice, the local police department is advised before Ameritac personnel proceed in their attempts to apprehend any fugitive. Sometimes, the police insist on escorting the agents. All the applicants testified that their responsibilities as"team leaders" or"door guides" include the task of securing and controlling the area in which their unarmed team members are functioning. Johnson testified:

That's why it's imperative that the three of us be allowed to carry[,] because we're responsible for the rest of these people out in the field. We're the ones making the calls and the decisions on what's going to be going down.

B. The Borinsky Matter - Morris County

Borinsky is employed by S & S Fugitive Recovery, Inc. (S & S) of Newark. He is a former investigator for the Essex County Sheriff, was assigned for a time as a sheriff's officer to a trial judge, and had been a firearms marksmanship instructor in the United States Marine Corps. In discharging his responsibilities as a fugitive recovery agent in and around Newark, Borinsky provides assistance and intelligence to the Newark Police Department.

His experiences in the course of his work, as well as the demands of the job, are similar to those recounted by the other applicants. Borinsky's asserted need for a permit is based upon the same personal safety concerns posited by the other applicants.

The Chester Township Chief of Police denied Borinsky's application because he was unable to communicate with S & S to verify Borinsky's employment. On September 21, 2001, the Chief of Police denied the permit"based upon you failing to justify your need to carry a handgun for employment purposes." On October 3, 2001, Borinsky appealed to the Law Division in Morris County for trial court review.

At the initial hearing, the trial court continued the matter so that the Attorney General could be invited to intervene. After the plenary hearing that ensued, the court found that Borinsky's employment with S & S had been verified. In the hearing, Borinsky testified that out of concern for his safety, because he is unarmed, and a handgun is necessary for self-defense, he has not participated in a raid for some time, limiting his activities to conducting investigations, gathering intelligence, setting up surveillance, and providing other support.

The trial court specifically found there were no general factual grounds for denying the permit such as might exist as a matter of background or character evaluation. The court also found that Borinsky is familiar with the mechanics of firearms, can handle them safely, and has a good understanding of the circumstances in which it might be appropriate to use a firearm in defense. Nevertheless, the court upheld the denial of the permit on general legal and public policy grounds.

C. The Haffner Matter - Morris County

Haffner is currently employed as a bail enforcement agent by Mirage Enterprises of Rockaway. At the time of his application and the trial court hearing he was employed by Affordable Bail Bonds. He had been engaged in this kind of work for four years. Haffner testified that his duties included those of a bail bondsman as well as a fugitive recovery agent. His description of his job functions as a fugitive recovery agent and his experiences in discharging those duties was similar to those recounted by the other applicants. He testified also that, by reason of his additional bail bondsman responsibilities, he frequently carries large amounts of cash.

The Law Division judge recognized this latter factor as another basis of need for the permit.

Haffner has a college degree in business administration and formerly worked in the telecommunications industry. He has successfully completed classes in firearm handling and proficiency.

With respect to local police involvement in his fugitive apprehension activities, Haffner testified that although he always provides notice to local police, most often they are not interested in participating.

As we have noted, the procedural posture of the Haffner matter is different from the others. The Rockaway Township Chief of Police determined that a permit to carry a handgun should be issued to Haffner. The matter came before the Law Division by reason of the court's statutory and regulatory oversight responsibilities, pursuant to N.J.S.A. 2C:58-4d and N.J.A.C. 13:54-2.5, upon approval of an application.

The trial court found Haffner to be"intelligent and responsible," with no background or character-evaluation blemish or disability. The court also found that Haffner satisfied the statutory standard for familiarity with handgun use. The application was disapproved, however, essentially for the legal and public policy reasons the same judge had employed in the extensive written opinion explaining the denial of the Borinsky permit.

II. THE TRIAL COURT RATIONALES

The decision in the Borinsky matter was rendered first. The Morris County Law Division judge's findings of fact and disposition affirming the permit denial were explained on the record on January 30, 2002, and later formalized in an ...


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