IN THE MATTER OF JONATHAN R. WHEELER


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3329-08T43329-08T4

IN THE MATTER OF

JONATHAN R. WHEELER.

______________________________________________


Submitted October 20, 2009 - Decided

Before Judges Grall and Messano.

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

Paula T. Dow, Essex County Prosecutor, attorney for appellant State of New Jersey (Kenneth P. Ply, Assistant Prosecutor, of counsel and on the brief).

Jonathan R. Wheeler, respondent pro se.

PER CURIAM

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 engaged in the actual performance of arson investigation duties." N.J.S.A. 40A:14-7.1(d).

By amendment enacted twelve years later, the Legislature permitted certain retired law enforcement officers to apply for a carry permit through the State Police. The amendment specifically provides that criminal penalties for unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), shall not apply to "a law enforcement officer who retired in good standing, . . . who semi-annually qualifies in the use of the handgun . . . and who is 75 years of age or younger . . . ." N.J.S.A. 2C:39-6(l). The retired officers who are eligible are those who have been "regularly employed as"

[A] full-time member of the State Police; a full-time member of an interstate police force; a full-time member of a county or municipal police department in this State; a full-time member of a State law enforcement agency; a full-time sheriff, undersheriff or sheriff's officer of a county of this State; a full-time State or county corrections officer; a full-time county park police officer; a full-time county prosecutor's detective or investigator; a full-time federal law enforcement officer; or is a qualified retired law enforcement officer, as used in the federal "Law Enforcement Officers Safety Act of 2004," [18 U.S.C. 926B, 926C] . . . .

[Ibid.]

This list is less comprehensive than the list of all persons who are exempt from criminal prosecution for carrying a firearm. N.J.S.A. 2C:39-6(a). For example, "Members of the Armed Forces of the United States," while on duty, may carry a firearm without criminal penalty, ibid., but retired members of the Armed Forces may not obtain a carry permit per force of their status. N.J.S.A. 2C:39-6(l).

With one possible exception, which we discuss in greater detail below, Wheeler does not fit into any of the categories of eligible retired officers listed in the amendment. The judge seemed to reason that because the Attorney General serves as the State's chief law enforcement officer, N.J.S.A. 52:17B-101, and because arson investigators must receive the training required by the Police Training Commission, N.J.S.A. 52:17B-67, which is established within the Division of Criminal Justice in the Department of Law and Public Safety, N.J.S.A. 52:17B-70, Wheeler was "a full-time member of a State law enforcement agency." See N.J.S.A. 2C:39-6(l). But this, of course, overlooks the fact that Wheeler was employed full-time by the Newark Fire Department, and clearly was not a "full-time member" of any eligible agency listed in the amendment. To the extent the judge used the comprehensive legislative and regulatory scheme that comprises the Police and Fire Retirement System (PFRS) to construe the amendment, we simply note there is no authority for such reliance. As a result, we reverse.

We are concerned, however, that the prosecutor, the judge, and Wheeler, never addressed whether he was "a qualified retired law enforcement officer, as used in the federal 'Law Enforcement Officers Safety Act of 2004,'" N.J.S.A. 2C:39-6(l), and, thus, eligible for a carry permit under that provision of the amendment. See In re Carry Permit of Andros, 403 N.J. Super. 271, 279 n.4 (App. Div. 2008) ("The first paragraph of N.J.S.A. 2C:39-6[(l)] expressly recognizes the federal 'Law Enforcement Officers Safety Act of 2004' as a basis for maintaining licensure."), certif. denied, 197 N.J. 476 (2009). The federal statute provides in relevant part:

(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer . . . may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce . . . .

(b) . . . .

(c) As used in this section, the term "qualified retired law enforcement officer" means an individual who--

(1) retired in good standing from service with a public agency as a law enforcement officer, other than for reasons of mental instability;

(2) before such retirement, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest;

(3)(A) before such retirement, was regularly employed as a law enforcement officer for an aggregate of 15 years or more; or

(B) retired from service with such agency, after completing any applicable probationary period of such service, due to a service-connected disability, as determined by such agency;

(4) has a nonforfeitable right to benefits under the retirement plan of the agency;

(5) during the most recent 12-month period, has met, at the expense of the individual, the State's standards for training and qualification for active law enforcement officers to carry firearms;

(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(7) is not prohibited by Federal law from receiving a firearm.

. . . .

[ 18 U.S.C.A. 926C (emphasis added).]

See 18 U.S.C.A. 926B (defining "qualified law enforcement officer" as, among other things, "an employee of a governmental agency who--(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest; (2) is authorized by the agency to carry a firearm . . . ."). Although Wheeler may have been authorized to exercise the powers enumerated in the federal statute, it is unclear whether he meets the other qualifications. In short, the existing factual record does not permit us to conclude whether Wheeler meets all the requirements of being "a qualified retired law enforcement officer, as used in the federal 'Law Enforcement Officers Safety Act of 2004.'" N.J.S.A. 2C:39-6(l).

Nor have the parties briefed the significant legal issues implicated. For example, under the facts presented in Andros, supra, where the sole question was whether the federal act preempted the State's ability to revoke a retired New Jersey officer's carry permit, we noted "that the federal act merely preempts a state's ability to preclude, or change the requirements for, carrying the firearm interstate, if the state of former employment permits licensing of the retired officer." 403 N.J. Super. at 279 (emphasis added). We found "no basis for concluding that a state cannot revoke a handgun permit because Congress authorizes a carrier when licensed in one state to possess it in another state." Id. at 280 (emphasis added). Thus, we did not consider, and we express no opinion now, as to whether the amendment's incorporation of the federal statute as an independent basis for permitting "a qualified retired law enforcement officer" to carry a handgun in New Jersey applies when the retiree, like Wheeler, was not previously a resident of another state, properly licensed and trained by that state to carry a firearm.

We reverse the order under review. Wheeler may re-apply for a carry permit, and, if denied, he may appeal that decision, should he choose, and raise the issue of whether he is a "qualified law enforcement officer, as used in the federal 'Law Enforcement Officer Safety Act of 2004.'" N.J.S.A. 2C: 39-6(l).

Reversed.


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A-3329-08T4

November 20, 2009