IN RE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF JAMES L. MCFADDEN (UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2017
• Docket: A-1149-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1149-15T2

IN RE APPLICATION FOR PERMIT TO CARRY A HANDGUN OF JAMES L. MCFADDEN

Submitted June 7, 2017 – Decided July 24, 2017

Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Union County.

Roberts & Teeter, attorneys for appellant James L. McFadden (Michael B. Roberts, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent, State of New Jersey (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

James L. McFadden, a licensed security officer, appeals a Law

Division judge's October 20, 2015 order denying his application

for a permit to carry a firearm in conjunction with his employment

with Triple Canopy, a security firm. We affirm.

McFadden's application was approved by the chief of the

Hillside Police Department. The Law Division judge's denial was accompanied by a written statement of reasons. He said that the

law "reject[s] the notion that employees of private security firms

have a 'preferred right' to a permit to carry because of their

work-related status." The judge also said that N.J.S.A. 2C:58-

4(d) provides that an applicant for a permit to carry a handgun

must demonstrate a justifiable need. In making the determination,

a court must decide if the applicant is subject to a substantial

threat of serious bodily harm, or if carrying a handgun is

necessary to reduce the threat of unjustifiable serious bodily

harm to any person. Since the "bare statements" in McFadden's

application said, in general terms, only that he was "subject to

a substantial threat of serious bodily harm," the judge found that

the information did not meet the standard for the issuance of a

permit to carry.

Included in McFadden's appeal appendix is a barely legible

form letter. In the letter, the author, presumably an employee

of Triple Canopy, states that the company contracts to provide

security services for federal buildings, and that because of the

current climate, the protection of a federal building requires

that security officers be armed. No specifics are given either

as to the precise nature of the contract, although examples of

buildings to be protected are enumerated, nor is McFadden's precise

role described.

2 A-1149-15T2 On appeal, McFadden states that the letter sufficed to

demonstrate a justifiable need to carry a handgun, that the law

of the case applied because McFadden in past years had been issued

a permit to carry in conjunction with his security work, and that

collateral estoppel required he be issued such a permit. The

contentions that prior permits raised issues regarding the law of

the case as well as collateral estoppel in this scenario are so

lacking in merit as to not warrant discussion in a written opinion.

R. 2:11-3(e)(2). McFadden also asserts that he was entitled to a

hearing in the matter, although it is not certain that the request

was ever made other than in this appeal.

It is clear, however, that before a permit to carry a handgun

will be issued to a security employee, N.J.A.C. 13:54-2.4(d)(2)

requires that he or she demonstrate need. This requires a showing

that in the course of performing statutorily authorized duties,

the applicant is subject to a substantial threat of serious bodily

harm. Ibid. Issuance of a permit may be appropriate where the

applicant can demonstrate that carrying a handgun is necessary to

reduce the threat of unjustifiable serious bodily harm to anyone.

Ibid.

The letter was signed by McFadden and a representative of

Triple Canopy and notarized, but it was not in the form required

by Rule 1:4-4(a). It is not clear if the attachment was intended

3 A-1149-15T2 to comply with Rule 1:4-4(b), as although the document states only

that "[t]he undersigned hereby certify that all statements

contained in this letter are true." The certification did not

comply with 1:4-4(b) because it did not include the phrase included

in the rule regarding the applicant's knowledge regarding the

consequences for willfully false statements.

We have considered the arguments made by McFadden, and in

light of our review of the record and the applicable principles

of law, we simply do not agree that the bare bones letter attached

sufficed to meet the requirements of N.J.A.C. 13:54-2.4(d)(2).

Generalized statements regarding threats to national security are

simply not enough.

We agree with McFadden that the Law Division judge incorrectly

stated that the court in In re Preis, 118 N.J. 564 (1990), applied

the standard from Siccardi v. State, 59 N.J. 545 (1971), to

security agency employees. The Preis Court included the

proposition from Siccardi merely to explain the Siccardi rule,

which applies to private citizens. Preis, supra, 118 N.J. at 571.

Regardless, this misstatement of the law is ultimately

harmless. The trial court was correct in holding that McFadden

did not provide the necessary information in order to establish

that he had a justifiable need to carry a handgun. It is not

enough for courts to issue handgun permits to carry to an

4 A-1149-15T2 individual because his or her employer, a security agency, believes

that there is a generalized urgent need for protection.

With regard to McFadden's request for a hearing, it is not

at all clear from our review of the record if that issue was ever

raised to the trial court. We therefore do not consider this

request. We deny McFadden's appeal, without prejudice to any

future right to make a further application correctly supported

with information that satisfies the regulation.

Affirmed.

5 A-1149-15T2