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Jordan v. Harvey

November 1, 2005

L. LOUIS JORDAN AND THE CITY OF ASBURY PARK, PLAINTIFFS-APPELLANTS,
v.
PETER C. HARVEY, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
L. LOUIS JORDAN AND THE CITY OF ASBURY PARK, PLAINTIFFS-APPELLANTS,
v.
PETER C. HARVEY, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On Appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-0801-04.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 11, 2005

Before Judges Collester, Lisa and S.L. Reisner.

This case arises from a dispute over whether the City of Asbury Park may lawfully authorize its police director to perform law enforcement duties. The Law Division concluded that the City had no such authority. We affirm.

I.

The procedural history and factual background may be summarized as follows. In May 2002, the City appointed L. Louis Jordan as police director. In addition to supervising the police department, Jordan began participating in law enforcement activities, including carrying a firearm, wearing a police uniform, and personally apprehending suspects. In November 2003, after the State Division of Criminal Justice issued a letter opining that the police director position was a civilian role and that Jordan was not authorized to engage in law enforcement activities, the City adopted an ordinance designating the police director as the "executive officer" of the police department. This ordinance also provided that the police director shall "[h]ave, by virtue of his office, . . . all authority and duties of a police officer."

In March 2004, the City and Jordan filed an action against the Attorney General in the Law Division seeking injunctive and declaratory relief against interference with the performance of Jordan's law enforcement duties.*fn1 Judge Linda Feinberg denied the application, concluding that the police director position was civilian in nature and that the City was not statutorily authorized to confer law enforcement powers on the police director. We agree with those conclusions.

II.

Municipal action is preempted where it conflicts with state law or stands "'as an obstacle to the accomplishment'" of a legislative objective, where state law is intended to be exclusive, where the subject matter requires uniformity, or where a pervasive scheme of state regulation precludes local regulation of the subject. Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461-62 (l976) (quoting Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587 (1941)). Applying these principles we conclude, as did the trial judge, that municipalities are preempted by State law from conferring law enforcement powers on a police director. The comprehensive State regulatory scheme concerning the qualifications and appointment of police officers, and police chiefs, precludes a municipality from conferring such powers on an employee in a manner other than that specifically authorized by statute.

The law enforcement functions of municipal police are pervasively regulated. In fact, the police industry is probably the most highly regulated, with respect to performance of its employees, of any industry in New Jersey. . . . [P]olice officers are members of quasi-military organizations, called upon for duty at all times, armed at almost all times, and exercising the most awesome and dangerous power that a democratic state possesses with respect to its residents -- the power to use lawful force to arrest and detain them. [PBA of N.J. v. Washington Township, 850 F.2d 133, 141 (3d Cir. 1988).]

The statutory scheme includes specifications as to appointment of municipal police officers, N.J.S.A. 40A:14-122, special law enforcement officers, N.J.S.A. 40A:14-146.10 through -146.14, and police chiefs, N.J.S.A. 40A:14-118. The statutes also specify who may exercise the power of apprehension and arrest. See N.J.S.A. 40A:14-152, -152.1 and -152.2. In light of the detailed and specific State regulatory scheme concerning who may enforce the criminal laws, we conclude that a municipality cannot accord law enforcement powers to an employee without specific statutory authority. We find no statutory authority to accord such powers to a police director.*fn2

Permitting a civilian police director to engage directly in law enforcement activities could enable the municipality to circumvent the rigorous training requirements and age restrictions applicable to police hires. See N.J.S.A. 52:17B-66 to -69.2 (mandatory training for law enforcement officers including municipal police officers); N.J.S.A. 40A:14-146.11 (mandatory training for special law enforcement officers); N.J.S.A. 2C:39-6(j)(law enforcement officers may not carry firearms without undergoing statutorily required police training); N.J.S.A. 40A:14-127, -127.1 (setting age restrictions for appointment and reappointment of municipal police officers). In that connection, we note that ...


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