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In re Application of Wheeler

Superior Court of New Jersey, Appellate Division

December 30, 2013

IN THE MATTER OF APPLICATION OF JONATHAN R. WHEELER FOR A RETIRED OFFICER PERMIT TO CARRY A FIREARM OPENLY AND/OR CONCEALED.
v.
IN THE MATTER OF APPLICATION OF GEORGE A. DAUDELIN FOR A RETIRED OFFICER PERMIT TO CARRY A FIREARM OPENLY AND/OR CONCEALED.

Argued March 6, 2013

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

J. Sheldon Cohen argued the cause for appellants Wheeler and Daudelin (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Steven C. Mannion, on the brief).

Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Guerrero, of counsel and on the brief).

Before Judges Grall, Koblitz and Accurso.

OPINION

GRALL, J.A.D.

TABLE OF CONTENTS

I. Introduction 3
II. Facts 5
III. The Firearms Law 7
A. The Purpose, Requirements, Narrow Scope and Role of the Carry Permit Law 8
1. The Purpose and Requirements 8
2. The Narrow Scope 10
3. The Similar Roles of Employment-Based Exemptions from the Carry Permit Law and the "Justifiable Need" Standard 15
4. The Role of Special Permits for Retired Police Officers 18
5. The Legislature's "Justifiable Need" Requirement is Consistent with the Lawful Defensive Use of Firearms 23
B. The History of the Carry Permit Law 24
C. The Factual Justifications for the Carry Permit Law 26
D. Summary 31
IV. The Second Amendment 32
A. The Claim Presented 32
B. The Right 34
1. The Narrow Holdings in Heller and McDonald 35
2. The Broad Reasoning Supporting the Narrow Holdings in Heller and McDonald 37
3. The Threshold Question Raised by the Court's Narrow Holdings and Broader Reasoning 38
4. Limitations on the Right 42
5. The Standard of Scrutiny 52
6. "Justifiable Need" Passes Muster 62
V. Equal Protection 76
VI. Privileges and Immunities 83
VII. Preemption 85

I. Introduction

Jonathan R. Wheeler and George A. Daudelin retired from the Arson Investigation Unit (AIU) of Newark's Fire Department and later applied to the Division of State Police (Division) for a special permit authorizing certain retired law enforcement officers to carry handguns. N.J.S.A. 2C:39-6l(1)-(4).[1] These special carry permits may be issued to retirees who either served in an enumerated law enforcement agency or served with an agency in another state and are "qualified retired law enforcement officer[s], as [that term is] used in the federal 'Law Enforcement Officers Safety Act of 2004' [(LEOSA)], Pub. L. No. 108-277, domiciled in this State." N.J.S.A. 2C:39-6l; In re Casaleggio, 420 N.J.Super. 121, 128-29 (App. Div. 2011) (so interpreting subsection 1's reference to LEOSA, 18 U.S.C.S. § 926C).

Another type of carry permit is available to any qualified person who can demonstrate a "justifiable need" for carrying a handgun. N.J.S.A. 2C:58-4d. To acquire one, an applicant must show "'an urgent necessity . . . for self-protection'" based on "specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means." In re Preis, 118 N.J. 564, 571 (1990) (quoting Siccardi v. State, 59 N.J. 545, 557 (1971)). Neither Wheeler nor Daudelin applied for that type of carry permit, because they concluded they could not show "justifiable need."

The Division denied Wheeler's and Daudelin's application. Challenging the constitutionality of the carry permit laws, both requested a hearing in the Law Division. N.J.S.A. 2C:39-6l(5). After consolidating the cases and taking testimony, the judge affirmed the denials.

On appeal, the applicants acknowledge their ineligibility for either type of carry permit and renew and expand their constitutional challenges. The questions presented are: 1) whether the "justifiable need" requirement of N.J.S.A. 2C:58-4d violates the Second Amendment; 2) whether subsection 1 of N.J.S.A. 2C:39-6 arbitrarily distinguishes between eligible retired officers and others; 3) whether distinctions between retired officers domiciled in New Jersey and elsewhere violate the Privileges and Immunities Clause of Article IV, Section 2 - an issue not raised in the trial court; and 4) whether LEOSA would preempt these applicants' prosecution for possessing a handgun without a permit in violation of N.J.S.A. 2C:39-5b - an issue not properly raised in the Law Division.

Because the facts are not in dispute and the questions turn on interpretation of statutes and the Constitution, we owe no deference to the judge's determinations. Borough of Harvey Cedars v. Karan, 214 N.J. 384, 401-02 (2013); In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).[2] For the reasons that follow, we conclude the applicants are not entitled to relief on any ground asserted.

II. Facts

Daudelin was assigned to Newark's AIU in 1984 and served in that unit for about sixteen years before retiring in 2000; he first applied for a special carry permit in April 2011. Wheeler was assigned to the AIU in 1997 and retired with no more than eleven years of service in 2008; he filed this application for a special permit in February 2011.[3] Both held leadership positions and retired in good standing.

Acknowledging their ineligibility for special permits, they offered evidence to demonstrate that their exclusion from the list of eligible retirees is arbitrary. Active members of an AIU have powers equivalent to those of police officers only "while engaged in the actual performance of arson investigation duties, " N.J.S.A. 40A:14-7.1d, and may carry handguns only "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 . . . to carry weapons." N.J.S.A. 2C:39-6a(8) (emphasis added).[4] But these applicants were on duty or on call except when on vacation, and they intervened whenever they observed crimes in progress, even crimes unrelated to their duties, and they worked with officers from the police department, county prosecutor's office and the Bureau of Alcohol, Tobacco and Firearms when investigating arsons related to other crimes.

They also presented evidence of inconsistent application of the special carry permit law. Some AIU retirees had been issued special carry permits based on subsection 1's reference to LEOSA, but they received those permits prior to this court's decision in Casaleggio.

Neither Wheeler nor Daudelin made any attempt to establish the "justifiable need" necessary to obtain an ordinary carry permit. Instead, they argued that if retired officers, who have no police powers, can obtain a carry permit without showing "justifiable need, " then no one should be required to make that showing.

III. The Firearms Law

Discussion of the constitutional challenges to the "justifiable need" component of the carry permit law requires an understanding of the role of "justifiable need" in the "'careful grid' of regulatory provisions" comprising our firearms law. Preis, supra, 118 N.J. at 568 (quoting State v. Ingram, 98 N.J. 489, 495 n.1 (1985)). Accordingly, the importance of this component of that grid is best understood in context.

The carry permit law is distinct from laws that provide enhanced punishment for persons who commit crimes with guns or other deadly weapons, which are also part of the careful grid. Id. at 568-69. As the discussion that follows demonstrates, the carry permit law is one of the regulatory provisions of the firearms laws designed to protect the public before any harm is caused. The regulatory provisions address the danger of serious injury inherent in the ownership and carrying of firearms.

A. The Purpose, Requirements, Narrow Scope and Role of the Carry Permit Law

1. The Purpose and Requirements

Some regulatory provisions of the firearms laws "keep firearms from all such persons whose possession would pose a threat to the public health, safety or welfare, " under any circumstance. Burton v. Sills, 53 N.J. 86, 93 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969). In order to lawfully acquire a handgun, rifle or shotgun, one must demonstrate that he or she is not disqualified by reason of youth, criminal record history, domestic violence restraining order or disability affecting one's ability to carry a firearm. N.J.S.A. 2C:58-3a-c (requiring prior authorization -a permit to purchase a handgun or a purchaser identification card for rifles and shotguns - and enumerating the disqualifying conditions).[5]

The carry permit law serves a different purpose - addressing the "serious dangers of misuse and accidental use" inherent even when the person carrying a handgun is law-abiding and responsible. Siccardi, supra, 59 N.J. at 558 (construing N.J.S.A. 2A:151-44 (L. 1966, c. 60, § 35, p. 501)). An applicant for a carry permit must demonstrate more than absence of a disqualifying condition. The applicant must show that he or she is "thoroughly familiar with the safe handling and use of handguns" and that he or she has "a justifiable need to carry a handgun." N.J.S.A. 2C:58-4d. These two additional requirements make the carry permit "the most closely-regulated aspect of [this State's] gun-control laws." Preis, supra, 118 N.J. at 568-69.

The additional requirements minimize the danger the carry permit law is intended to address. The showing of proficiency reduces the risk of mishandling. Moore v. Madigan, 702 F.3d 933, 941 (7th Cir. 2012) (noting the obvious menace when the untrained carry guns in public), reh'g en banc denied, 708 F.3d 901 (7th Cir. 2013). And the demonstration of particularized need that serves to limit "widespread handgun possession in the streets, somewhat reminiscent of frontier days, would not be at all in the public interest." Siccardi, supra, 59 N.J. at 558.

2. The Narrow Scope

Although the carry permit is the most closely-regulated aspect of our firearms laws, it affects a very narrow range of conduct.

The core of the carry permit law is a broadly-stated prohibition against knowing possession of a handgun "without first having obtained a permit to carry the same as provided in N.J.S. 2C:58-4." N.J.S.A. 2C:39-5b(1). But the scope of that prohibition, and consequently the obligation to establish "justifiable need" in order to carry and use a handgun, is greatly diminished by numerous statutory exceptions that make N.J.S.A. 2C:39-5b inapplicable in a wide range of circumstances. See N.J.S.A. 2C:39-6 (codifying the exceptions).

As a practical matter, the exceptions make the prohibition against carrying a handgun applicable only in public places. We use the term "public places" throughout this opinion to mean places other than one's home, business premises, property, places where handguns are lawfully sold and repaired, and places where handguns may be lawfully used for training and practice or recreationally for hunting, competition and exhibition. N.J.S.A. 2C:39-6e, f, g. Because of the exceptions, one does not need a carry permit to keep, carry or use a handgun about one's home, business premises or land, N.J.S.A. 2C:39-6e, or while lawfully hunting or shooting at a range or in an authorized exhibition, N.J.S.A. 2C:39-6f(1)-(3), or while transporting a handgun, unloaded and secured, between those places and places where guns are sold or repaired. N.J.S.A. 2C:39-6e, f, g.

In each of the instances covered by the foregoing exceptions, a lawful reason, or need, for having a handgun is obvious: keeping or transporting a handgun for lawful use; using it in lawful defense of home, family and property; using it recreationally or for training where that conduct is lawful; and transporting it, secured, in connection with acquisition, maintenance or use for one of the lawful purposes.

There are additional exceptions that apply to certain persons carrying a loaded handgun in public places. Those eligible are designated by their employment. N.J.S.A. 2C:39-6a, b. Where those exceptions apply, the likely need for use of lawful defensive force is apparent - either because the persons or things the employee must secure are inherently likely to be of interest to those bent on crime, or because the job is to keep the peace, prevent crime, apprehend, secure or prosecute suspects, or supervise and secure those convicted.

The employment-based exceptions applicable to workers in the private sector are for guards employed by railway express companies, banks, public utilities transporting explosives, nuclear power plants or companies transporting prisoners pursuant to government contract. N.J.S.A. 2C:39-6c(5), a(10), c(8), c(15). Exempted government employees are members of the military on active duty, police and sheriffs' officers, prison and jail guards, parole officers, criminal investigators and prosecutors. N.J.S.A. 2C:39-6a(1)-(5), c(6), c(10)-(14), c(16).

Generally, the carrying privileges afforded to these exempt employees are strictly tied to performance of duties warranting the arming of the employees. See N.J.S.A. 2C:39-6a(10), c(5), c(8), c(15) (private sector); N.J.S.A. 2C:39-6a(1)-(2), a(6), a(7)(c), a(8), b(1), c(2), c(4), c(6), c(7) (public sector). The exceptions for some in the public sector are not limited to times when they are on duty or on call, but those officers have statutory duties and police powers not limited to performance of duty.[6] Thus, the employment exemptions are tailored to need.

Employment-based exemptions are also conditioned on demonstration of competence in handling firearms. Every exempt employee must successfully complete training and periodically re-qualify under standards set by the New Jersey's Police Training Commission (PTC). See N.J.S.A. 2C:39-6a, c (enumerating the exceptions); N.J.S.A. 2C:39-6j (requiring training and qualification). That condition minimizes the risk of misuse and accident.[7]

When the Legislature established the PTC in 1961, it recognized the need for better trained officers upon whom the public could rely. The Legislature determined that professional training for police was required "to better protect the health, safety and welfare of its citizens, " in this "State whose population is increasing in relation to its physical area, and in a society where greater reliance on better law enforcement through higher standards of efficiency is of paramount need . . . ." N.J.S.A. 52:17B-66; L. 1961, c. 56, § 1, p. 542, (emphasis added). This explanation demonstrates the Legislature's consistent focus on "need" in addressing the dangers of carrying handguns in public places. In addition to regulating the carrying of handguns, it has made efforts to address conditions that could reasonably lead the public to perceive a need for being armed in public places.

All of the foregoing demonstrates the limited, but important, role that the carry permit law has in the grid of New Jersey's firearms laws - protection of those in public places of this densely populated State. Despite the apparent breadth of the statute criminalizing the possession of a handgun without first obtaining a carry permit, N.J.S.A. 2C:39-5b, because of the numerous exceptions available where a good reason for having a handgun is apparent, N.J.S.A. 2C:39-6, a carry permit is necessary only if one wants to have a handgun where it cannot be lawfully used to do anything but repel an unlawful attack. And where a person's employment gives reason to anticipate a need to use defensive force in places such as the highways, streets, ...


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