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In re Wheeler

November 20, 2009

IN THE MATTER OF JONATHAN R. WHEELER.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 20, 2009

Before Judges Grall and Messano.

The State appeals from the Law Division's order that reversed "the denial of [Jonathan R. Wheeler's] application for a retired law enforcement officer's permit to carry a handgun by the New Jersey State Police . . . ." The order further provided that the "New Jersey State Police shall continue to process . . . Wheeler's application . . . ." A subsequent order entered a stay pending our decision.

The State contends that Wheeler, who retired as a Deputy Chief of the Newark Fire Department in 2008, is not entitled to carry a weapon because he was not employed in, and did not retire from, any of the positions set forth in N.J.S.A. 2C:39-6(l) (the amendment). Wheeler, while employed by the Fire Department, undisputedly served as an "arson investigator" pursuant to N.J.S.A. 40A:14-7.1, was armed in that capacity with a firearm issued by the Newark Police Department, and received the necessary instruction and training mandated by the Police Training Commission. He contends, therefore, that he is a retired "law enforcement officer" within the intended purview of the amendment. We have considered these arguments in light of the record and applicable legal standards. We reverse.

Wheeler applied for his permit to carry a handgun by filing the appropriate forms with the State Police. On December 15, 2008, the head of that agency's Firearms Investigations Unit notified Wheeler that his application was denied because his "former employer refused to endorse and certify his application." See N.J.S.A. 2C:39-6(l)(2) (requiring the superintendent of the New Jersey State Police to request "verification of service from the chief law enforcement officer of the organization in which the retired officer was last regularly employed as a full-time law enforcement officer prior to retiring"). Wheeler appealed the denial to the Law Division. See N.J.S.A. 2C:39-6(l)(5).

At the hearing, State Police Detective Sergeant Joseph Genova explained that Wheeler did not qualify for the carry permit because "he was not . . . employed by a law enforcement agency . . . [H]is former employer was the Newark Fire Department." Wheeler testified that he had carried a firearm as an arson investigator, that he received the necessary training to do so, and that he "ha[d] to qualify at the Newark Police [firing] range twice a year to maintain [his] qualification." As an arson investigator, he "carr[ied] [a] Newark Police I.D." and had "full police powers," including the ability to "interview, . . . interrogate, . . . incarcerate, [and] testify as [an] expert witness[]."

The judge considered the arguments, observing that he "always thought police and firemen were [in] the same pension and all retired as law enforcement." He concluded that Wheeler "f[e]ll under the statute[.]" The judge explained his reasoning as follows:

I believe that as a[n] arson employee of the fire department when you were employed with the permission to carry you are under law enforcement and, as a retired member, I consider you a retired member under a law enforcement agency, specifically, the State . . . . I look at the State as an umbrella for any of those agencies because they do fall under the State.

He entered the order under review.

Undoubtedly, our gun control laws present "a 'careful grid' of regulatory provisions." In re Preis, 118 N.J. 564, 568 (1990) (quoting State v. Ingram, 98 N.J. 489, 495 n. 1 (1985)). "Very few persons are exempt from the criminal provisions for carrying a gun without a permit." Preis, supra, 118 N.J. at 569. In N.J.S.A. 2C:39-6(a), the Legislature enacted a comprehensive list of positions that provide exemption from criminal prosecution for carrying a handgun. Those statutory exemptions are to be construed narrowly. State v. Rovito, 99 N.J. 581, 586-87 (1985). In 1985, the Legislature added to the list, providing an exemption from criminal prosecution to

A full-time, paid member of a . . . fire department . . . of any municipality who is assigned full-time or part-time to an arson investigation unit created pursuant to [N.J.S.A. 40A:14-7.1] or to the county arson investigation unit in the county prosecutor's office, while either engaged in the actual performance of arson investigation duties or while actually on call to perform arson investigation duties and when specifically authorized by the governing body or the county prosecutor . . . to carry weapons. [N.J.S.A. 2C:39-6(a)(8).]

An arson investigator's right to carry a firearm is specifically conditioned upon his "successful[] complet[ion] [of] a firearms training course administered by the Police Training Commission[,]" and annual qualification in the weapon's use. Ibid. Arson investigators "have the same powers and authority of police officers within the municipality while ...


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