On appeal from Department of Personnel, Merit System Board, Docket No. 2002-311.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
A federal statute commonly referred to as the Lautenberg Amendment prohibits any person who has been convicted of a "misdemeanor crime of domestic violence" from possessing any firearm that has been shipped or transported in interstate commerce. 18 U.S.C.A. § 922(g)(9). The question presented by this appeal is whether a simple assault under N.J.S.A. 2C:12-1a(3) constitutes a "misdemeanor crime of domestic violence." We conclude that such an assault, which consists of an "[a]ttempt by physical menace to put another in fear of imminent serious bodily injury," N.J.S.A. 2C:12-1a(3), is not a "misdemeanor crime of domestic violence," because it does not "[have], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon[.]" 18 U.S.C.A. § 921(a)(33)(A)(ii).
Appellant Freddie B. Frazier was employed by respondent Department of Corrections as a senior corrections officer. On May 2, 1998, appellant was arrested on a domestic violence assault charge. After an indictment was returned against him based on this incident, appellant was suspended without pay.
The charges against appellant were resolved by a guilty plea to the disorderly persons offense of simple assault, in violation of N.J.S.A. 2C:12-1a(3). On September 18, 2000, a judgment of conviction was entered, under which appellant received a sentence limited to fines and assessments.
On November 1, 2000, the Department of Corrections filed a preliminary notice of disciplinary action against appellant based on this conviction seeking his removal. On May 10, 2001, the Department filed an amended preliminary notice of disciplinary action, which sought appellant's removal on the basis of "conduct unbecoming an employee," in violation of C11 ("conduct unbecoming an employee") and D23 ("prohibited by law from possessing or using a firearm") under Human Resources Bulletin 84-17, and N.J.A.C. 4A:2-2.3(a)(3) ("inability to perform job duties"). The specification of charges alleged that appellant had pled guilty to simple assault, in violation of N.J.S.A. 2C:12-1a(3), and also stated: "[A]ccording to documentation received from the Division of Criminal Justice dated May 1, 2001, you are prohibited by federal law from possessing a firearm on or off duty and, therefore, cannot work as a law enforcement officer." The May 1, 2001 letter referred to in the specification, which was written by a Deputy Attorney General in the Prosecutor and Police Bureau of the Division of Criminal Justice, stated:
Based upon the information provided by your office that on September 18, 2000 SCO Frazier was found guilty before the Superior Court in Hudson County of domestic violence related simple assault, SCO Frazier is prohibited from possessing a firearm on and off duty. Because of this conviction, SCO Frazier is prohibited by federal law from possessing any firearm.
Based on these charges, appellant was removed from his position as a senior corrections officer, effective June 13, 2001.*fn1
Appellant appealed his removal to the Merit System Board, which referred the matter to the Office of Administrative Law (OAL) as a contested case.
There was a substantial delay in disposition of the matter before the OAL due first to questions concerning appellant's representation and then appellant's unsuccessful efforts to secure an expungement of his conviction.*fn2 The case was eventually brought before an Administrative Law Judge (ALJ) on a motion by the Department of Corrections for summary decision.
The ALJ concluded in his initial decision that as a result of his conviction for simple assault, appellant is prohibited from carrying a firearm under the Lautenberg Amendment and therefore is no longer qualified to perform the duties of a senior corrections officer. Accordingly, the ALJ upheld appellant's removal. ...