Preis, In re

• Decision Date: 08 May 1990
• Citation: 573 A.2d 148,118 N.J. 564
• Parties: In re the Applications for Gun Permits of Drew E. PREIS and Gary R. Cline.
• Court: New Jersey Supreme Court

Page 564

118 N.J. 564

573 A.2d 148

In re the Applications for Gun Permits of Drew E. PREIS and Gary R. Cline.

Supreme Court of New Jersey.

Argued Jan. 29, 1990.

Decided May 8, 1990.

Jack L. Weinberg, Sp. Deputy Atty. Gen., Acting Asst. Prosecutor, Chief, Appellate Section, for appellant, State of N.J. (James F. Mulvihill, Sp. Asst. Atty. Gen. In Charge, Acting Camden County Prosecutor, attorney).

Ronald J. Cappuccio, Cherry Hill, for respondents, Drew E. Preis and Gary R. Cline.

Frederick P. DeVesa, Asst. Atty. Gen., for amicus curiae, Atty. Gen. of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney; Frederick P. DeVesa and J. Grall Robinson, Deputy Atty. Gen., on the briefs).

The opinion of the Court was delivered by

O'HERN, J.

The question in this case is whether employees of a private-security agency have a preferred right by virtue of their status to obtain a permit to carry a gun. We find no such preference in the legislation. We therefore concur with the Law Division's view that the statutory standard calls for a permit to be issued only to those who can establish an urgent necessity for protection of self or others--as for example, in the case of one whose life is in danger as evidenced by serious threats or earlier attacks. We reverse the judgment of the Appellate Division, which directed the issuance of permits to the employees because the private-security agency had been earlier requested to furnish armed security to a shipping concern that had assertedly been the subject of union-related violence.

I

For purposes of this appeal we draw on the statement of facts furnished by the applicants for the gun permits. Drew Preis and Gary Cline are residents and former police officers of Merchantville, New Jersey. Cline, a retired police chief, is employed by Frischling Research Associates (Frischling) and Associated Security Specialists, two related private-detective agencies licensed in New Jersey. Preis is employed by Frischling. In part, Frischling provides executive and property protection. The applicants assert that their employment requires that they have a permit to carry a handgun. No other Frischling employees are licensed to carry a handgun. Frischling had been requested to provide security service for McAllister Corporation, a tugboat company that was involved in a labor dispute. During the period of dispute, an unknown person shot out a tugboat window. The tugboat company requested armed security personnel.

Mr. Preis and Mr. Cline sought to obtain gun permits based on the company's desire to provide armed protection to executives and property. In accordance with the gun-licensing law, they first cleared their applications through the Merchantville Chief of Police, who gave favorable recommendations for both men. Evidence submitted to the trial court indicated that other security-guard companies have armed guards available.

At the close of the initial hearing, the Law Division indicated that it was inclined to grant a permit to Cline, stating that "[h]e needs a gun for [the] McAllister [job]. I'm willing to give him the gun for the McAllister job," subject to receipt of a letter from the McAllister Corporation. The court did not consider Preis' application at that hearing. On the renewed hearing date, Preis and Richard Frischling, the president of the security agency, produced the required letter from McAllister. The prosecutor concurred in the request for the handgun permits, but suggested that they be limited to the job for which sought. The court refused to grant the limited permit, ruling that it was drawing the line for future applications. Furthermore, the court said, "I am going to have applications for every [ser]vice and detective in the State of New Jersey to carry a gun and I won't grant it and I won't grant any of them until the Appellate Division tells me to grant them."

The court based its denial on several grounds. First, it stated that it was not clear whether a gun had ever been fired at the client, and concluded that there was "no evidence of any great need of armed guards on that strike." On a more philosophical basis, it reasoned that it could not justify the fact that an individual has a right to hire a gun just because he or she happens to be "an important person or executive." The court, declaring that the applicants had failed to show an "urgent need for armed detectives here in this business," accordingly denied their requests for handgun permits.

The Appellate Division reviewed the threats to the client, McAllister, with a particular emphasis on the potential dangers to the tugboat pilot. In an unpublished opinion, the court found that such circumstances established justifiable need for both applicants under N.J.S.A. 2C:58-4d. It ordered that both be granted generalized permits to carry handguns, concluding that "a potential client with an immediate need for protection might be without that needed protection if private professional services are unavailable." However, the court directed the Law Division to impose such restrictions as would define the circumstances in which the guns might be carried. In effect, by allowing the court to impose such restrictions on these permits, the Appellate Division ordered the Law Division to issue permits for future permission to carry when the applicant deemed it necessary to provide armed protection.

We granted the State's petition, 114 N.J. 499, 555 A.2d 619 (1989), and permitted the Attorney General to file an amicus brief in the case.

II

A.

We have repeatedly referred to New Jersey's gun-control laws as a "careful grid" of regulatory provisions. State v. Ingram, 98 N.J. 489, 495 n. 1, 488 A.2d 545 (1985). Our laws draw careful lines between permission to possess a gun in one's home or place of business, N.J.S.A. 2C:39-6e, and permission to carry a gun, N.J.S.A. 2C:39-6a and N.J.S.A. 2C:39-6c. The permit to carry a gun is the most closely-regulated aspect of gun-control laws. Conversely, carrying a gun is the most heavily penalized conduct when certain crimes are committed with a gun. State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983). The message is clear: if you carry a gun while committing a crime, you will go to prison. N.J.S.A. 2C:43-6c.

Very few persons are exempt from the criminal provisions for carrying a gun without a permit. Members of the armed forces of the United States or National Guard, federal-law-enforcement officers, State Police, sheriff's officers, correction officers, or regular members of municipal and county police forces have authority to carry guns both on and off duty. N.J.S.A. 2C:39-6a. Other designated occupations, such as bank guards, railway policemen, park rangers, and campus-police officers, are exempt from the gun-control act's criminal provisions "while in the actual performance of [such] duties." N.J.S.A. 2C:39-6c. All members exempt under N.J.S.A. 2C:39-6a and N.J.S.A. 2C:39-6c from the criminal provisions of N.J.S.A. 2C:39-5 must qualify annually in the use of a revolver under N.J.S.A. 2C:39-6j. Private-security officers, not being exempt from our gun-control laws, must obtain a license to carry a gun.

The licensing provisions are contained in another section of the Code, N.J.S.A. 2C:58-4. Only employees of armored-car companies are singled out for special treatment. See N.J.S.A. 2C:58-4.1. So concerned is the Legislature about this licensing process that it allows only a Superior Court judge to issue a permit, after applicants first obtain approval from their local chief of police. In this (as perhaps in the case of election laws) the Legislature has reposed what is essentially an executive function in the judicial branch. We have acceded to that legislative delegation because "[t]he New Jersey Legislature has long been aware of the dangers inherent in the carrying of handguns and the urgent necessity of their regulation," although we "might well have declined the designation" because the "functions * * * were clearly non-judicial in nature." Siccardi v. State, 59 N.J. 545, 553, 284 A.2d 533 (1971). N.J.S.A. 2C:58-4d lists the grounds for issuance of a permit:

The court shall issue the permit to the applicant if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in section 2C:58-3c [such as those for one who has been convicted of a crime or is drug dependent], that [the applicant] is thoroughly familiar with the safe handling and use of handguns, and that [the applicant] has a justifiable need to carry a handgun.

In addition, the provision allows the court, in its discretion, to issue a "limited type permit which would restrict the applicant as to the types of handguns he may carry and where and for what purposes such handguns may be carried." Ibid.

Each of the three factors is critical. The Attorney General emphasizes in his amicus brief that none should be presumed to be present, noting that even a retired police officer should not necessarily be regarded as currently familiar with the safe handling and use of handguns. Obviously, the critical question here is, "What is justifiable need?"

B.

At the time of the reenactment of the gun-licensing provisions as part of the Code of Criminal Justice of 1979, N.J.S.A. 2C:58-1 to -11, the most relevant definition of "justifiable need" was set forth in Siccardi v. State, supra, 59 N.J. 545, 284 A.2d 533. In that case, Justice Jacobs reviewed the history of our gun-control laws in the context of an application by the night manager of a theater in Plainfield to carry a gun. The manager was required to carry money in the late evening hours from the theater to a nearby bank. In support of his application, he recited numerous incidents involving beatings and robberies in the area of the theater, and claimed that his life had been threatened by persons confronting him in the theater and on the street. The Chief of Police denied the manager's...