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In re Application for a Firearms Identification Card for Walter

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 20, 2007

IN RE THE APPLICATION FOR A FIREARMS IDENTIFICATION CARD FOR JOHN T. WALTER.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 19, 2007

Before Judges Cuff and Lihotz.

In this appeal, we review an order granting the application of John T. Walter to carry a handgun. Walter is a retired member of the Burlington County Bridge Commission (BCBC) police force. The narrow issue before this court is whether a member of the bridge commission police force is a retired member of a county police department pursuant to N.J.S.A. 2C:39-6l. We hold that he is not and reverse the order authorizing a permit to carry a handgun.

The BCBC employed Walter as a bridge police officer from April 14, 1969, until his retirement on May 1, 2005. Following his retirement, Walter submitted an application to the New Jersey State Police for a permit to carry a handgun. Walter invoked N.J.S.A. 2C:39-6l, which governs the right of certain retired law enforcement officers to carry a handgun in the same manner as an active law enforcement officer. The BCBC declined to certify the application because it contended that members of its bridge police force do not fall within any of the categories of law enforcement officers identified in the statute. Consequently, on October 31, 2005, the State Police denied Walter's application to carry a handgun.

Walter appealed this decision to the Law Division of Superior Court. N.J.S.A. 2C:39-6l(5); R. 2:2-3(a). The Law Division judge issued an order on March 16, 2006, reversing the denial of a permit to carry a handgun as a retired police officer.

In his letter opinion, the judge found that N.J.S.A. 2C:39-6l was clear and unambiguous and expressly provided that a retired member of a county police department qualified to receive a permit to carry a handgun. He also stated "[t]here is no evidence presently before the court to suggest that a bridge commission police department is anything but a 'county . . . police department' under N.J.S.A. 2C:39-6l." The judge also held that "[a]n exhaustive review of the statutory authority reveals no legislatively-imposed limitation on the powers conferred upon an officer of the bridge commission police." Thus, he held that N.J.S.A. 2C:39-6l embraces a bridge commission police department and authorizes the issuance of a permit to carry to a person in Walter's position.

The Burlington County Prosecutor filed a motion for reconsideration and the BCBC filed motions to intervene and for reconsideration. The judge granted the motion to intervene but reaffirmed his prior opinion that Walter should be considered a retired law enforcement officer and eligible to carry a handgun in that capacity. It is from this October 4, 2006 order that the BCBC appeals.

The BCBC argues that this State's gun control legislation strictly limits the persons who may carry handguns. While retired law enforcement officers may carry handguns, the Legislature has specifically denominated those members of law enforcement who may carry a handgun, and a member of the BCBC police department is not one of those permitted to do so. Finally, the BCBC argues that the powers conferred on its police officers are narrow and not co-extensive with the powers conferred on officers of county police departments.

The BCBC refers this court to proposed legislation that would confer statewide police power on officers of the BCBC police department and allow BCBC police officers to carry a handgun at all times. The BCBC argues that A-1451, legislation introduced on January 10, 2006, to alter the scope of authority conferred on BCBC police officers and to amend the statute governing authority to carry handguns, underscores its argument that retired BCBC officers do not fall within the statutory exemption that allows retired officers to carry a handgun. Reliance on the Legislature's action or inaction on proposed legislation to interpret an existing statute is fraught with difficulty. The mere introduction of legislation to amend an existing statute or to address a subject not previously the subject of legislative action is insufficient to discern the intent of the Legislature. Donaldson v. Bd. of Educ. of N. Wildwood, 65 N.J. 236, 240 (1974). As of this date, A-1451 has been referred to the Law and Public Safety Committee. So, too, the failure of this legislation to progress through the legislative process provides little, if any, assistance in the resolution of the issue before this court. The failure to adopt the proposed legislation may mean many things, including broad disagreement with the terms of the amendment or broad agreement that the amendment is unnecessary or simply legislative inaction. Romeo v. Romeo, 84 N.J. 289, 294 (1980); see also 2B Sutherland Statutory Construction § 49.10 (6th ed. 2000) (legislative inaction is a notoriously "weak reed" as an interpretive aid).

Resolution of this issue requires analysis, not only of our gun control legislation, but also of the statute authorizing the creation of the BCBC police department and the powers bestowed on that entity. N.J.S.A. 2C:39-1 to -16 is a comprehensive gun control scheme. The chapter prescribes who may carry guns, establishes the manner in which guns may be acquired, and prohibits the possession of certain guns without the appropriate license or permit. N.J.S.A. 2C:39-5a prohibits the knowing possession of a machine gun without being licensed to do so; N.J.S.A. 2C:39-5b prohibits possession of a handgun without a permit to carry one; and N.J.S.A. 2C:39-5c prohibits possession of a rifle or shotgun without having first obtained a firearms purchaser identification card. Violation of sections 5a, 5b or 5c is a third degree offense that exposes a person to a three-to five-year term of imprisonment. N.J.S.A. 2C:43-6a(3). N.J.S.A. 2C:39-6 exempts certain persons from the provisions of N.J.S.A. 2C:39-5a to -5c as long as the exempt person has satisfactorily completed a firearms training course approved by the Police Training Commission. In addition, a retired full-time member of a county police department in this State, who is less than seventy years of age, may carry a handgun in the same manner as an active law enforcement officer, if the retiree applies within six months of retirement to the Superintendent of the State Police for approval to carry a handgun. N.J.S.A. 2C:39-6l(1). The retiree must apply annually for approval to carry a handgun. Ibid. The Superintendent must verify the applicant's status as a retired law enforcement officer with the applicant's former employer. N.J.S.A. 2C:39-6l(2). If the Superintendent denies approval for a permit to carry a handgun, the retiree may seek review in the Law Division. N.J.S.A. 2C:39-6l(5).

Here, the chief of the BCBC police department verified that Walter had served as an officer in its department and retired in good standing but informed the superintendent that it was not a county police department within the meaning of N.J.S.A. 2C:39-6l. Walter argues that the BCBC police department is commensurate with a county police department thereby qualifying for a permit to carry a handgun. Our review of the statutes authorizing the formation of the BCBC police department and a county police department reveal critical distinctions in the authority bestowed on officers in those departments that precludes issuance of a gun permit to Walter.

A county government can create a county police department under the authority of Title 40A, Chapter 14, dealing with county and municipal fire and police. N.J.S.A. 40A:14-106 provides:

The governing body of any county . . . by ordinance or resolution, as appropriate, may create and establish a county police department and force and provide for its maintenance, regulation and control. Except as otherwise provided by law, the governing body may appoint a chief of the department and such other members, officers and personnel as shall be deemed necessary . . . . The governing body shall adopt and promulgate rules and regulations for the government of the department and force and for the discipline of its members.

The statute lists the laws that county police have the "power to enforce," N.J.S.A. 40A:14-107(1)-(5), and describes the jurisdiction of county police as follows:

The said members and officers have authority to arrest for the commission of any crime anywhere in the county of their appointment; they shall also have full authority to arrest for any crimes committed in their presence which are committed anywhere within the territorial limits of the State of New Jersey. [N.J.S.A. 40A:14-107 (emphasis added).]

By contrast, a county bridge commission derives its authority to create a police force from a different statute. The county is not involved in the act of creation of a bridge commission police department. The statute states:

[A]ny county bridge commission . . . may appoint policemen and all policemen so appointed are hereby authorized and empowered to make arrests on view and without warrant . . . for crimes, misdemeanors and offenses of any character, or for disorder or breach of the peace . . . committed within the jurisdiction of this State on any bridge owned by or under the control of such county bridge commission, or at the approaches thereof, or on any other property owned by or under the control of such commission. In addition, such policemen shall have all the powers conferred by law on police officers or constables in the enforcement of laws in this State and the apprehension of violators. [N.J.S.A. 27:19-36.3 (emphasis added).]

Notably, even though bridge commission police have "all the powers conferred by law on police," they may exercise those powers only in limited circumstances.

There are substantial differences between the powers of bridge commission police and the powers of county police. BCBC police are authorized to make arrests only "on view," while county police have full authority to arrest "for the commission of any crime anywhere in the county of their appointment," regardless whether they saw the crime. Compare N.J.S.A. 27:19-36.3 with N.J.S.A. 40A:14-107.

BCBC police officers are "empowered to make arrests . . . for crimes . . . committed . . . on any bridge owned by or under the control of the [the Commission], or at the approaches thereof, or on any other property owned by or under the control of [the Commission]." N.J.S.A. 27:19-36.3. County police, on the other hand, "have full authority to arrest for any crimes committed in their presence which are committed anywhere within the territorial limits of the State of New Jersey." N.J.S.A. 40A:14-107. Due to the territorial limitations on bridge commission police, their day-to-day activities tend to involve traffic control, bridge openings and assistance to stranded motorists. Moreover, the enabling statute itself does not give bridge commission police the same territorial jurisdiction as county police, even though it provides them with the same law enforcement and arrest authority while operating on bridge property.

By contrast, under the county police enabling statute, county police have (1) full arrest powers for crimes committed in their own counties, and (2) arrest power for crimes committed "in their presence" anywhere in the State. N.J.S.A. 40A:14-107. Similarly, municipal police have (1) full arrest powers for crimes in their municipality and (2) arrest power for crimes committed "in their presence" anywhere in the State. N.J.S.A. 40a:14-152 to -152.1; see also State v. O'Donnell, 192 N.J. Super. 128, 130 (App. Div. 1983). Bridge commission police have not been conferred these powers. N.J.S.A. 27:19-36.3.

Bridge commission police differ from county police in other ways. For example, BCBC police officers are appointed by a county bridge commission and paid from the proceeds of bridge tolls. N.J.S.A. 27:19-36 to -36.3. County police are part of a county police department established by the county's governing body and paid by a county's general tax revenue. N.J.S.A. 40A:14-106. The BCBC police are not eligible to participate in the Police and Fire Retirement System (PFRS) because they have only limited police powers; county and municipal police officers participate in PFRS. See N.J.S.A. 43:16A-1(2)(a); N.J.S.A. 52:17B-67.

In short, for purposes of the gun control law, while active BCBC police officers fit into the exemption for "other police" under N.J.S.A. 2C:39-6(c)(1) and accordingly, may carry guns while in the actual performance of their duties, they may not carry a handgun off duty, and by extension, they may not to do when retired.

Reversed.

20071220

© 1992-2007 VersusLaw Inc.



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