Legislative Corner and Opinion
New Jersey continues to dismantle LEOSA
by Raoul Watson, Trustee Lodge 222
Last month, the New Jersey Attorney General published a memo which in my opinion is extremely disturbing and totally in contradiction to LEOSA (later on that). You can see the memo here.
To be honest, I was extremely disappointed with the Honorable Attorney General Gurbir S. Grewal, simply because I have historical knowledge about Mr. Grewal. In order to explain, I have digress back to around the year of 2006. At this time, Mr. Grewal was one of the AUSAs in the Eastern District and I was in charge of the IT Department at the Metropolitan Detention Center in Brooklyn. During this time, I worked closely with the US Attorneys office of the Eastern District in order to provide discovery material to around a dozen or so prisoners accused of providing the material support to the Tamil Tiger --an organization in Sri Lanka classified by the US government as a terrorist organization. This was a special effort for the MDC since I had to setup special computers and external hard drives with tons of evidence to be made available from the prosecutors to these prisoners. It was a logistical nightmare to put it mildly because the government did not want some of them to be housed together, but that's another story. To make a long story short, Mr. Grewal, as an AUSA, obviously would have no problem interpreting Federal Laws. So this is where my personal disappointment stemmed from.
After moving to the US Attorneys office in New Jersey, Mr. Grewal eventually worked for the State as a Bergen County prosecutor then landed the appointment from governor Murphy in the beginning of this year (2018) as NJ Attorney General.
So what is exactly LEOSA? In 2004, a House Resolution bill HR 218, which has been around since 1997 (it was Community Protection Act at that time introduced by Senator Randy "Duke" Cunningham R(CA)) finally passed the senate as senate bill S 1132. President Bush signed it to become Public Law 108-277 codified into 18 USC 926(b)(c). The then US Attorney General Ashcroft, put out a memo to the directors of all the agencies under the US Department of Justice, to issue a guidance for this new law known as the Law Enforcement Safety Act (LEOSA). While the LEOSA has been amended twice (in 2010 Public Law 111–272— and 2013 Public Law 112-239), the purpose of the law has never changed; to provide qualified law enforcement officers in all states local or Federal, the protection they deserve.
For the men and women of law enforcement, the LEOSA has never been a firearms issue--it is and always has been an officer safety issue. Congress understood and intended that the primary purpose of the LEOSA is to ensure that officers, regardless of their duty status, can lawfully defend themselves and their families from vindictive criminals and at the same time provide a public safety service while off duty if they so chose. So this became the law of the land, except in New Jersey.
The New Jersey commanding officer of the State Trooper said in no uncertain terms that law enforcement officers carrying under LEOSA in NJ will be arrested. I relayed this to FOP President through the FOP legislative director. While I was never privy to this internal info, a memo went out to the NJ State Trooper leadership and they changed their tune pretty fast. The Fraternal Order of Police after all, is the world's largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges throughout the United States.
So in an effort to "recognize" this Federal Law, instead of taking it verbatim as written, NJ decided to incorporate it into their State Code around 2005/2006. This produced a "customized" law with changes by New Jersey! For example (don't laugh), N.J.S.A. 2C:39-6(L) stated:
"l. Nothing in subsection b. of N.J.S.2C:39-5 shall be construed to prevent a law enforcement officer who retired in good standing...(9) of subsection c. of this section;... or is a qualified retired law enforcement officer, as used in the federal “Law Enforcement Officers Safety Act of 2004,” Pub.L. 108-277..." Okay, so far you can see they are incorporating the LEOSA into this code. So that's good right? Wait, the text continued with ".. under the conditions provided herein:"
OK, so what do they mean under the condition? This is a Federal Law, efforts has been made (and rejected by congress) of States who wanted to Opt Out or make certain changes to LEOSA. The House of Representatives also defeated — and the Senate refused to consider — proposed amendments aimed at preserving local law enforcement agencies’ discretion to regulate “the conditions under which their officers may carry firearms”; this made LEOSA the law of the land — again, except in New Jersey.
So when they added these conditions:
"(1) The retired law enforcement officer shall make an application in writing to the Superintendent of State Police for approval to carry a handgun for one year. An application for annual renewal shall be submitted in the same manner." and on top of that, this is only until you reach 75 year of age. After that, at a more vulnerable age, they no longer can protect themselves!
At this point, this is no longer LEOSA and is a made up law. Changes to Federal Law has to go through Congress and signed by the President. States certainly has no authority to make changes.
Now if New Jersey is pretty liberal to grant pistol permits, I would not have a problem. However, in New Jersey, it is easier for criminals to get a handgun than for retired law enforcement officer. Here is the bad thing... the courts in New Jersey would use the NJSA code in the cases brought into the court system. To illustrate this, I digress back to 2011 when Judge Graves from the Appellate court, denied the appeal of an individual named Giles W. Casaleggio. Mr. Casaleggio, in an attempt to be legit, applied for a gun permit for retired law enforcement officers. His application was denied and he appealed his case (420 N.J. Super. 121 (App. Div. 2011)).
As a quick background, Mr. Casaleggio retired in good standing after serving as an assistant prosecutor for the State of New Jersey. In his decision, Judge Graves mentioned that "Unlike police officers and investigators, both assistant prosecutors and deputy attorneys general are "lawyers first and foremost" whose "essential responsibility is to provide legal advice" so he would not classify them as "Law Enforcement Officers." Strangely enough, Judge Graves also mentioned that "Nevertheless, we recognize that "common sense should not be abandoned when interpreting a statute."
OK so let's use common sense.
N.J.S.A. 2C:39-6(a)(4) provides exemptions to carrying of firearms to "(4) A sheriff, undersheriff,... county prosecutor, *assistant prosecutor*, prosecutor's detective or investigator..." (emphasis added). So based on this, Mr. Casaleggio was issued a firearm when he was working as an assistant prosecutor --and rightfully so according to the law. So if he was good to have a gun then, why not when he retired? Well, the problem is N.J.S.A. 2C:39-6(L) which failed to enumerate his position.
"l. Nothing in subsection b. of N.J.S.2C:39-5 shall be construed to prevent a law enforcement officer who retired in good standing...(listing of positions but no *assistant prosecutor*). So basically the ones permitted to carry a handgun under the provision concerning current law enforcement officials under N.J.S.A. 2C:39-6(a)(4), these same positions are not enumerated under N.J.S.A. 2C:39-6(L).
There are other cases where New Jersey was just unfriendly to their peace officers. Such as in 2012 when they told their constables that they cannot use the word "police constables." There were also two retired arson investigators denied gun permits even though they were included in N.J.S.A. 2C:39-6(a)(4).
OK.. so what exactly is wrong with the NJ Attorney General guidance? For starters, section 2 mentioned that there is no "alternate path" for N.J. retired law enforcement officers, i.e. requiring retired officers to file for a permit in NJ. This is a totally made up law since LEOSA does not require a permit.
However, Judge Graves mentioned in his analysis whether LEOSA would have covered Mr. Casallegio, he mistakenly again referred to the NJ local law and said the legislation purpose was "to permit retired law enforcement officers from other states . . . who are domiciled in New Jersey to carry a firearm..." Of course no such condition exists in LEOSA.
Second, first paragraph of 18 USC 926(c) clearly stated "(a) Notwithstanding any other provision of the law of any State or any political subdivision thereof.." so clearly, New Jersey local law on this matter does not count.
Next comes section 4. They are also prohibiting the use of the uniformly standard law enforcement hollow point ammunition, which ballistics have proven is more effective and less penetrating than full metal jacket ammunition (it also does not ricochet which may cause injuries to bystanders). While the LEOSA stated "(e) As used in this section— (1) the term “firearm”— ... (B) includes ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act..." so hollow point is not prohibited.
Essentially New Jersey says, “LEOSA does not count. You must pay to get a separate permit and follow our rules.”
Meanwhile the criminals in
streets of Trenton and Newark clearly have no rules to follow. They seem to
inflict as much mayhem as they want. While the legislators are more
concerned about restricting guns for law enforcement by making it extra
difficult for retirees.
I personally am sending a letter to AG Grewal since I believe the AG guidance was not written by him but rather his staff (and he simply signed without looking at the details). Hopefully once brought to his attention how the memo undermined a Federal Law, and I firmly believed that the AG would not have undermined a Federal Law, some revisions may surface.
FLEOA took up the battle with NJ AG
FLEOA Legal Counsel letter to NJ AG
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The opinion presented in this section is solely the opinion of the staff writer and is not that of Fraternal Order of Police
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