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In re Application for a Firearms Identification Card for Walter

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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