Rawls, Matter of

• Decision Date: 11 July 1984
• Citation: 484 A.2d 53,197 N.J.Super. 78
• Parties: In the Matter of Hilton RAWLS.
• Court: New Jersey Superior Court

Page 78

197 N.J.Super. 78

484 A.2d 53

In the Matter of Hilton RAWLS.

Superior Court of New Jersey, Law Division,

Essex County.

Decided July 11, 1984.

Hilton Rawls, pro se.

Richard H. Iacobucci, individually and trading as Master Investigative and Detective Agency, pro se.

Hugh Gallagher, Asst. Corp. Counsel, Newark, for the Chief of Police of Newark (John J. Teare, Corp. Counsel of the City of Newark, Newark, attorney).

VILLANUEVA, J.S.C.

The issues involved are whether a special policeman must obtain a permit to carry a handgun when employed as an armed security guard for a private security company and whether he can wear his special policeman's uniform and badge while so employed.

The primary question is whether a special policeman, employed as a guard by a security company, is controlled by the Private Detective Act of 1939, N.J.S.A. 45:19-8 et seq., rather than the law governing special policemen, N.J.S.A. 40A:14-146.

The court holds that such employment does not constitute "official duties" of a special policeman and it violates the rules governing employees of a private detective agency. N.J.A.C 13:55-1.5. Therefore, he is not permitted, without the requisite permit, to carry a handgun or other firearm while employed as a security guard for a private security company, nor may he wear his special policeman's uniform and badge while so employed.

This matter arose when the court learned, in a routine check, that a private security company employed a special policeman, wearing his uniform and badge, to act as an armed security guard at a municipal building, although the guard had never obtained a permit to carry a handgun.

Hilton Rawls was an employee of Master Investigative and Detective Agency (Master) since early 1983 working as an armed security guard at a municipal building in Newark, where he is a special policeman by legal appointment, wearing his special policeman's uniform with his badge displayed.

Even after this court questioned Rawl's status as an armed guard, he not only continued such activity but sought to have the court approve similar part-time employment for another security company. The court obviously could not grant this request because no carry permit had ever been issued to him.

Therefore, the court ¹, sua sponte, ordered both the special policeman and the security company to show cause why they should not be restrained from such activity without said employee qualifying under the Private Detective Act and obtaining a permit to carry the gun. Rawls left this employment on June 28, 1984 after receiving the order to show cause.

The New Jersey State Special Police Association, Inc., and Newark Special Police Association intervened as amici curiae.

Although Iacobucci and Master received the order to show cause on June 28, 1984, they failed to appear at this hearing. When the court called the office of Master to inquire why Iacobucci was not in court, an answering service said Iacobucci was in Europe and would return in two weeks. Rawls testified that since he received the order to show cause, he has attempted to contact Iacobucci without success. Therefore, the hearing proceeded without Iacobucci.

Unknown to the court until the hearing herein, the State Police had begun an investigation in March 1984, into a complaint that a sheriff's officer, Donald Bartell, was acting for a private detective agency as an armed security guard in the uniform of the Essex County Sheriff's Office, at a city-owned building in Newark. A check of the private detective unit files revealed that this subject was not registered as an employee of Master, required by N.J.A.C. 13:55-1.3.

At that time the state police also learned that Rawls and two other employees were not registered as employees of Master, although Rawls had been employed continuously since early 1983. The holder of a private detective license must file a verified statement of employment signed by the employee, together with his fingerprints, within 48 hours. N.J.S.A. 45:19-16.

On April 23, 1984, Sergeant Richard De Ghetto of the state police interviewed Iacobucci in reference to that investigation. Iacobucci assured DeGhetto that he would correct the problems immediately and that they would not reoccur.

Master apparently contended that since Rawls is a special policeman, he may carry his handgun wherever he is employed in Newark and that the Private Detective Act does not apply to him because he was acting as a special policeman.

The Legislature has empowered municipalities to employ three types of policemen, regular, temporary and special. L.1917, c. 152, Art. XVI, §§ 1, 3 and 7 at 359-361 (1924 Suppl. § 136-1607). These provisions have been continued substantially unchanged to the present. Until 1953, special policemen were prohibited from carrying firearms. L.1953, c. 228, § 1 at 1685 eff. July 14, 1953.

When they received such authority to carry firearms, they were prohibited from carrying a revolver or similar weapon "when off duty." This restriction was modified in 1982 to provide an exception solely in the City of Newark, under certain circumstances, to permit a special policeman to carry a revolver when off duty within that municipality if he obtains a revocable permit from the director of the municipal police force and mayor. L.1982, c. 154; N.J.S.A. 2C:39-6a(7) and N.J.S.A. 40A:14-146.

Since 1953, the Legislature has afforded special policemen a limited exemption from obtaining a permit to carry a handgun while engaged in the actual performance of their duties.

This exemption now states:

Sec. 2C:39-5 does not apply to any special policeman authorized to carry a revolver or other similar weapons while off duty within the municipality where he is employed, as provided in N.J.S. 40A:14-146, or a special policeman ... appointed by the governing body of any county or municipality ... while engaged in the actual performance of his official duties and when specifically authorized by the governing body to carry weapons. [ N.J.S.A. 2C:39-6a(7). L.1982, c. 154, (formerly N.J.S.A. 2A:151-43) ]

Special police have been used for many years to carry on the full panoply of police functions during limited periods. As early as 1837, the Newark City Council passed an ordinance authorizing the mayor to appoint special police to aid on occasions when necessary to preserve the peace and good order and to increase the public security and protection of the citizens. Charter of the City of Newark with the Ordinances and By-laws passed by the Common Council 107 (1838). When Newark created its police department in 1857, the mayor retained this power to appoint special police for temporary duty as necessary to preserve peace and order. Thus, the Mayor of Newark in 1864 and 1866 appointed special police to act in concert with the regular police on election day. He appointed 40 special police to maintain peace during a railroad strike in 1877. The History of the Police Department of Newark 63, 93 (1893). Special police "shall be under the supervision and direction of the chief of police" and "shall comply with the rules and regulations applicable to the conduct and decorum of the regular policemen." N.J.S.A. 40A:14-146. Belmar Policemen's Benev. Ass'n v. Belmar, 89 N.J. 255, 265, 445 A.2d 1133 (1982).

A section of the statute governing special policemen provides:

The identification card, badge or other identifying insignia of any person who serves as a special policeman, ... or who performs under the law any special police or law enforcement function ... shall clearly state the name of the agency by which any such person is employed and shall clearly distinguish any such person from the members of any regular and permanent State, county or municipal police department. [ N.J.S.A. 40A:14-146.6]

The purpose of this section is to enable the public to distinguish the permanently employed, regular, professional police officers from other police and quasi-police employees and volunteers. Atty.Gen.F.O.1977, No. 25.

The statute N.J.S.A. 40A:14-146 et seq., contains little guidance as to the scope of duties to be performed by special police officers. However, it provides that "they shall not be members of the police force" and that they cannot carry firearms when off-duty. This would appear to reflect a legislative determination that special police officers should not be equated with the regular, permanent members of a municipal police force. This proposition was reinforced in State v. Jones, 4 N.J.Super. 599, 68 A.2d 352 (Law Div.1949), rev'd on other grounds, 4 N.J. 207, 72 A.2d 322 (1950).

Detective Vincent Martin, speaking on behalf of the Chief of Police of Newark, stated that before special policemen are appointed, they are required to present a letter from an employer in the private sector (and obviously not from a detective or security agency) requesting such appointment, which comes only after direction from a councilman or other police authority. Such was the procedure followed by Rawls in 1976 when he was first appointed after the council received a letter requesting employment at Beth Israel Hospital. Every year a similar letter has been received. In 1983 Rawls did, however, mention his employment with Master. Therefore, he did not attempt to conceal that employment.

The policy of Newark, as evidenced in the statute N.J.S.A. 40A:14-146; is to appoint and use special policemen in the private sector, but not to be employed by a private detective agency. In Newark, special policemen are all advised that their function is primarily, if not exclusively, to be employed by a private business and that they are not to advertise nor solicit for work with various agencies.

The Newark Police Department has a rule, known by Rawls, that a special police officer must sign a roster at headquarters, stating where he is going to work, either daily or monthly depending on the continuing nature of the employment. Rawls apparently signed the...