Courts upholds retired officers’ right to carry concealed weapons
NJ State PBA Legal Corner
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
As a result of a recent decision by a federal court in New Jersey, qualified retired law enforcement officers living in New Jersey may now have an easier path to carry concealed firearms if they meet the requirements set forth under the federal Law Enforcement Officer Safety Act (LEOSA). In Federal Law Enforcement Officers Association v. Grewal, the court concluded that LEOSA superseded the requirements under New Jersey law.
By way of background, LEOSA, which was enacted in 2004, permits a “qualified retired law enforcement officer,” who is carrying the required identification, to carry a concealed firearm. Importantly, the statute provides that it applies, “notwithstanding any other provision of the law of any state or any political subdivision thereof[.]”
To be a qualified retired law enforcement officer (QRLEO), the officer must meet seven requirements set forth in LEOSA, including: (1) being separated from service in good standing with a public agency as a law enforcement officer; (2) prior to separation, being authorized by law to engage in or supervise the prevention, detection, etc. of any person for any violation of law, and having had statutory powers of arrest or apprehension under relevant law; (3) prior to separation, having served as a law enforcement officer for a combined 10 years of more, or being separated 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) during the most recent 12-month period, meeting the relevant standards for qualification in firearms training; (5) not being found unqualified for mental health-related reasons; (6) not being under the influence of alcohol or another intoxicating drug or substance; and (7) not being prohibited by federal law from receiving a firearm.
Under LEOSA, the QRLEO must also possess certain photographic identification confirming that he or she has been employed as a law enforcement officer and indicating that he or she meets the active duty standards for qualification in firearms training as established by the agency. Or that a law enforcement officer attaches a separate certification confirming that the officer has met active duty standards as established by the state. Or, if there are no such standards set by the State.
New Jersey law makes it a crime to carry a handgun without a permit or an exemption. State law does exempt law enforcement officers, including QRLEOs, from this restriction if they obtain a retired officer permit from the state, the requirements of which are set forth under N.J.S.A. 2C:39-6(l). The requirements include, in relevant part, that the QRLEO be under 75 years of age, submit a written application to the NJ State Police superintendent and an annual reapplication for renewal; submit documentation confirming that he or she has met the state’s active duty firearms qualifications standards for law enforcement officers for the firearm(s) that he or she wants to carry; verification of service by the NJ State Police superintendent; and a criminal background check by the Firearms Investigation Unit. Even after the completion of all of the necessary steps, however, the superintendent may deny any application he believes is not “in the interest of public health, safety or welfare.”
New Jersey also makes it a crime under N.J.S.A. 2C:39-3(f) to possess “hollow nose” ammunition unless the person is an active law enforcement officer. This law is not subject to any exemption even if the person carrying has a permit.
In 2018, the attorney general issued guidelines reinforcing these New Jersey firearms laws and stated that LEOSA did not provide an “alternate path to eligibility” to carry a firearm where a retired law enforcement officer living in New Jersey was not eligible for a permit under state law. The 2018 guidelines also stated that a New Jersey retired law enforcement officer could not carry hollow point bullets, and that LEOSA did not provide any additional authority for a retired officer to do so. In 2021, the attorney general issued updated guidelines, which carved out three categories of retirees and clarified that, while the first two categories of retirees (federal/out-of-state retirees residing in New Jersey and New Jersey retirees residing out of state) did not need to apply for a permit to carry a firearm in the state as long as they met the requirements of LEOSA, the third category of retirees (New Jersey retirees residing in New Jersey) were required to meet the statutory standards and obtain a permit in accordance with state law.
In Federal Law Enforcement Officers Association v. Grewal, three retired officers were denied permits to carry in New Jersey despite meeting the requirements under LEOSA because they did not meet the state statutory standards. These officers filed suit in federal court, arguing that LEOSA preempts the state laws under which the officers were denied permits.
The court agreed with the retired officers and found that LEOSA preempts state law. First, the plain language of the statute — specifically the notwithstanding clause of the statute — suggests the intent of Congress to override state and local laws regulating QRLEOs with proper identification. Second, the Congressional findings demonstrate that Congress intended LEOSA to “override state laws” and “allow current and retired police officers to carry a concealed weapon in any of the 50 states.” Third, three federal courts of appeals and several district courts previously affirmed that a QRLEO who is carrying the identification required by LEOSA may carry a concealed firearm “notwithstanding any other provision of any state.”
In response to the state’s argument that a finding of preemption would “directly force state law enforcement agencies to issue certain identification as part of a federal concealed carry scheme” in violation of the Tenth Amendment of the U.S. Constitution, the court noted that its interpretation was limited to QRLEOs who already have LEOSA-compliant identification, and that the State would retain its authority to issue identification under the LEOSA statute. For example, if the state wanted to stop retired officers from exercising the right to carry under LEOSA, it could order its law enforcement agencies to not issue photographic identification to retirees.
The court’s ruling in FLEOA v. Grewal expands the rights of qualified retired law enforcement officers residing in New Jersey to carry concealed firearms. As long as they meet the requirements under the LEOSA, the QRLEOs no longer need to meet the additional permit requirements under state law. However, law enforcement officers in New Jersey should keep in mind that this broadened right applies only to those officers who already have LEOSA-compliant identification. Officers who are not compliant with LEOSA must still comply with state firearms law. And, of course, this decision is also subject to an appeal by the Attorney General. We will keep the NJSPBA advised of any further developments.