TO:
All County Prosecutors
Colonel Joseph R. Fuentes, Superintendent, Division of State Police
All Police Chiefs
All Law Enforcement Chief Executives
FROM: Peter C. Harvey,
Attorney General
DATE: June 7, 2005
RE:
Guidance Regarding the Law Enforcement Officers Safety Act of 2004
[Pl. 108-277 (H.R. 218)].
The recently enacted Law Enforcement
Officers Safety Act of 2004, 18 U.S.C.A. §926B and §926C ("H.R.
218") allows full-time active duty and retired law enforcement
officers, how meet specific criteria, to carry concealed firearms
anywhere throughout the nation without having first obtained permits
to carry from a foreign state. The passage of H.R. 218 has
raised a number of questions with regard to New Jersey's police
officers traveling out of state as well as with police officers from
other jurisdictions visiting our state.
A. Full-Time Active Duty
Officers
With respect to full-time active duty
police officers, we discourage agencies from permitting their officers
to take the agency issued weapons out of state. Nonetheless,
each New Jersey law enforcement agency should, in consultation with
its legal counsel, make its own determination. In formulating a
policy, each agency should consider the following issues. First,
firearms issued by a police department are government property; making
each agency potentially liable for the use or misuse of that weapon by
one of its police officers. Liability may attach for the misuse
of a weapon regardless of whether the officer is on personal business
outside of his or her jurisdiction. If your agency currently
requires officers to carry their agency issued weapon off duty, then
it may be prudent to evaluate that restriction in light of the passage
of H.R. 218.
Second, H.R. 218 does not provide
active duty police officers with law enforcement powers or immunities
outside of their jurisdictions. While on personal business,
police officers are ordinary citizens who happen to have the right to
carry concealed weapons as a result of H.R. 218. Each agency
must determine whether it will provide legal representation to
officers who may fire or otherwise use their agency issued weapon
while out of state on personal business.
We recommend that all agencies clearly
and unequivocally advise their officers of the foregoing by way of a
clearly written policy. We are also requesting that all agencies
remind active full-time police officers that they do not possess
police powers or immunities in other states and are personally
responsible for checking and understanding the laws of any
jurisdictions that they visit while armed.
B. Active Duty Police Officers
From Other States
We have received a number of inquiries
from police officers from other jurisdictions inquiring as to their
"authority" under H.R. 218 while they travel through or remain in New
Jersey while on personal business. The appropriate response is
that they are ordinary citizens while visiting our state and
possess no police powers. Similarly, the federal law does
not provide immunity to out of state officers who commit firearms
related offenses within New Jersey. Please advise out of state
officers who seek guidance that if they happen upon a situation in our
state that requires police intervention, they should call the
appropriate state, county, or municipal police department to respond.
Finally, some jurisdictions permit their citizens and police officers
to openly carry their weapons. Please be advised that H.R. 218
permits only the carrying of concealed firearms.
C. Retired Police Officers
The passage of the Federal Law
Enforcement Officers Safety Act does not alter the obligation of
retired New Jersey law enforcement officers to comply with the
provisions of N.J.S.A. 2C:39-6I in order to carry a firearm in this
state. Absent statutory changes to our retired officer
permitting procedures, it remains in full effect and officers must
comply with its requirements. Furthermore, retired New Jersey
police offices who carry a gun in another state are ordinary citizens.
The right to carry a gun under H.R. 218 does not imply the right to
exercise police powers. Further information concerning the
rights and obligations of retired New Jersey police officers to carry
a firearm under H.R. 218 will be issued in the near future.
D. Other Restrictions
Finally, H.R. 218 does not supersede or
limit existing New Jersey law. Therefore, it remains permissible
for private business and government agencies (such as casinos and
schools), as many currently do, to restrict the possession of firearms
on their property.
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