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

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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.
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