By Donald J. Mihalek
New Jersey recently won its stay request of a previous federal court ruling that barred the state from enacting its “sensitive locations” law throughout the state. This win allows New Jersey to continue to bar lawful concealed carry in many areas of the state.
The previous federal judge ruling had noted that the reforms signed into law last December are “aimed primarily – not at those who unlawfully possess firearms – but at law-abiding, responsible citizens,” and called the law “plainly unconstitutional.”
The Third federal circuit court disagreed and stayed the federal judge’s ruling that effectively allows New Jersey to continue enforcing this new law. This new law is in a state that seems laser-focused on prohibiting lawful concealed carry, including for law enforcement officers, vs attacking those who carry unlawfully.
This is the same federal circuit that is currently reviewing New Jersey’s appeal of their loss in federal court of the Law Enforcement Safety Act (LEOSA) lawsuit that allows retired law enforcement officers to have a limited concealed carry right throughout the United States and its territories.
Congress passed LEOSA in 2004 and has amended and updated it twice since, to ensure that law enforcement officers around the nation didn’t violate a patchwork of concealed carry laws, that could bar officers in one state from carrying in an adjacent state – even while on duty. It also provided a nationwide limited concealed carry waiver for qualified retired law enforcement officers. Enshrined in 18usc926c, LEOSA plainly states that its stipulations are in effect “notwithstanding any state or local law,” including in New Jersey.
All of this “sensitive locations” effort stems from the Bruen Supreme Court decision that threw out the need for Americans who are permitted to lawfully possess a firearm to have to prove that a “proper cause” exists. That decision prompted both New York and New Jersey to find novel ways to curb otherwise lawful concealed carry, hence the creation of “sensitive locations” laws.
In New York, they made sure to cavort out certain individuals from these sensitive locations including retired law enforcement officers certified under the Law Enforcement Officers Safety Act (LEOSA). New Jersey did not expressly include LEOSA-qualified officers in their exemptions, which has prompted renewed questions about LEOSA carry in a state that seems more focused on curbing retired law enforcement officers vs. criminal concealed carry.
In April 2021, under pressure from the LEOSA lawsuit, the New Jersey Attorney General’s office amended its FAQ’s CONCERNING RETIRED LAW ENFORCEMENT OFFICER PERMITS TO CARRY FIREARMS AND THE FEDERAL LAW ENFORCEMENT OFFICER SAFETY ACT OF 2004 (LEOSA). In a sudden and shocking Administrative change, on question 8: “May RLEOs who are considered QRLEOs under LEOSA, who reside in New Jersey, and who separated from an out-of-state or federal law enforcement agency, carry a firearm without applying for an RPO permit under State law?”
The memo answers with, “Yes, provided that the RLEO meets all of the requirements of LEOSA. The RLEO must be a QRLEO as defined by LEOSA, discussed above in the answer to Question 4, see 18 U.S.C. 926C(c), and possess the identification required by LEOSA, discussed above in the answer to Question 5. See 18 U.S.C. 926C(d)(1) to (2)” which includes the carry of hollow point ammunition.
This Administrative change issued by the Attorney General’s office clearly fully embraced LEOSA certifications for federal officers living in New Jersey and out-of-state officers that either move to or live in New Jersey, but the state continued to differentiate and not allow their own officers the same right.
As the LEOSA lawsuit has progressed, New Jersey has gone to lengths to separate federal and out-of-state officers from their own law enforcement officers. In the lawsuit filed by FLEOA on behalf of members Richard Bowen, Joseph Jakubiec, and Christopher Martinez with the NJ FOP, when a decision was finally made, New Jersey lost on the merits of the case.
The federal judge then issued an order that made enforcement of any New Jersey law that infringes upon LEOSA carry unlawful, which would include this new “sensitive locations” law.
The salient points of the federal judge’s order issued June 21, 2022, and remains in effect are: “that N.J.S.A.2C:39-5, N.J.S.A. 2C:39-6(1), and N.J.S.A. 2C:39-3(f) are preempted by LEOSA, as applied, to any retired law enforcement officer who is qualified under 18 U.S.C. § 926C(c) (“QRLEO”) and has identification required by J 8 U.S.C. § 926C(d), regardless of their residence; and it is further…….that any QRLEO who has identification required by 18 U.S.C. § 926C (d) may carry a concealed firearm in the State of New Jersey, including hollow point ammunition, without obtaining a Retired Police Officer permit under New Jersey law regardless of their residence or the agency from which they retired. ORDERED that the State of New Jersey is enjoined from arresting and/or prosecuting any QRLEO who has identification required by 18 U.S.C. § 926C(cl) regardless of their residence or the agency from which they retired.”
New Jersey tried to ask for a stay of the Judge’s order and was denied by the district court. They appealed the ruling and in March, had oral arguments before the federal Third Circuit Court of Appeals. We await that court’s ruling. In the meantime, the federal order would clearly seem to overrule any state law that was or could be enacted, including New Jersey’s new “sensitive locations” law.
About the author
Donald J. Mihalek is the Executive VP of the FLEOA Foundation, an ABC News Contributor, a retired senior Secret Service agent and a regional field training instructor who served on the President’s detail and during two presidential transitions. He was also a police officer and served in the U.S. Coast Guard.