On appeal from Superior Court of New Jersey, Law Division, Atlantic County, CJ-2005-05438HL.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Stern, Payne and Lyons.
James Andros appeals from a judgment of March 23, 2007 that granted the State's application, under N.J.S.A. 2C:39-6L(6),*fn1 to revoke his permit to carry a firearm. Andros challenges both the denial of his motion to dismiss the application because of federal preemption under 18 U.S.C.A. § 926C enacted as part of the Law Enforcement Officers' Safety Act of 2004, which amended 18 U.S.C.A. § 921, et seq. relating to firearms,*fn2 and the determination on the merits. He contends that the revocation application is preempted; the Law Division "erred in finding that the State had presented 'good cause' for the revocation"; the trial court unduly limited his "request to cross-examine complaining witnesses"; there was a conflict of interest with respect to the complaining witnesses in one of the incidents"; the trial court was "not an unbiased fact finder"; appellant's motion to dismiss based on the proofs should have been granted; the findings that his conduct "was not justified under the relevant sections of the criminal code was clear error"; and the aggregate of errors warrants reversal of the revocation or a remand for a new hearing.
Andros was an Atlantic City police officer from 1968 to 2003. He retired on February 1, 2003, in good standing. Prior to his retirement he applied for and obtained a permit to carry a handgun. He renewed his permit annually thereafter.
On July 4, 2004, a large crowd gathered at "the cove" section of Brigantine to watch the fireworks. Thereafter, a group of friends from Brigantine Elks Club, consisting of twenty to fifty people, remained at the scene. While they were relaxing and the children were playing along the water line in the dark, Andros drove his sport utility vehicle along the water line at a high rate of speed to avoid a line of traffic trying to exit. Andros' wife was in the vehicle. As Andros drove by the Elks group, Alan Dickinson shouted to him to slow down because he felt Andros' speed was dangerous to those in the area.
Andros immediately stopped and exited his vehicle. He walked over to Dickinson, and they exchanged words during which Dickinson told Andros to return to his vehicle. Bill Glose, who was part of Dickinson's group, also told Andros to get back in his vehicle, words were exchanged, and Andros was shoved, whereupon Andros punched Glose and "nipped" his face. Glose and Andros then started wrestling in the sand until they were pulled apart. When Andros got up, he went to his vehicle and removed a handgun. He then loudly announced, "I'm packin, stay back." After hearing Andros' warning, the group backed away from him, and the police were called.
Approximately fifteen to twenty minutes later, police officers Thomas Rehill and Matthew Fannon arrived on the scene. When the officers arrived the incident was already over. The officers were told by some of those present that the group had been upset with Andros for driving his vehicle in the crowded area, and were particularly concerned for the safety of the children that were present.
Both officers stated they knew Andros prior to the incident. They spoke with him and the others present. Andros acknowledged that he was carrying his handgun. The officers eventually asked Andros to leave the scene, feeling it could "calm down the situation."
A second incident occurred on the evening of February 8, 2005. Rasheem Rose and his cousin Daril Jackson were driving on the Black Horse Pike in Egg Harbor Township. Rose was traveling in the right lane when Andros, whose wife was also in the car, cut in front of Rose's vehicle, forcing Rose to brake and swerve to the right to avoid an impact. Rose beeped his horn at Andros and endeavored to pass him. As Rose was passing, Andros flashed his middle finger. Andros then moved behind Rose in the left lane, turned on his high beam lights, and began tailgating Rose. Rose attempted to signal for Andros to back off, but Andros bumped against the back of the Rose vehicle. Rose began to slow down, and this was followed by a second, harder tap to Rose's car.
Rose managed to get back into the right lane, as Jackson attempted to get the license plate number of Andros' car. Rose then pulled onto the shoulder hoping that Andros would drive by and they could get the number. However, Andros also went into the right lane, drove past them and then pulled over onto the shoulder of the road, stopping a short distance ahead. Having expected Andros to continue on, Rose was moving back into traffic when Andros pulled off onto the shoulder. Rose pulled off once more, stopping two car lengths ahead of Andros.
Rose exited his vehicle while dialing 9-1-1 on his cell phone, and walked toward the back of his vehicle to check for damage. As he neared the back of his vehicle, Rose observed that Andros had a handgun in his right hand, causing him to drop his cell phone. Jackson also exited the car and observed Andros with the gun. Rose told ...