Court Upholds Dismissal of Corrections Officer Who Could Not Possess Firearm

By: Ralph R. Smith, 3rd, Esq.

In the recent case of In re: Frazier, 435 N.J. Super. 1 (App. Div. 2014), the New Jersey Superior Court- Appellate Division had to decide whether a public employee who was disqualified from possessing a gun could lose his public employment where a condition of that employment included carrying a firearm. The Court ultimately ruled in the affirmative that a public employee who was required to carry a firearm as part of his essential job duties could indeed be discharged if that employee was disqualified from carrying a firearm under New Jersey gun laws.

In 2004, the Legislature had passed an amendment to New Jersey’s gun law (N.J.S.A. 2C:39-7(b) (2)).  It was the state analogue to an earlier amendment to the federal Gun Control Act known as the Lautenberg Amendment. (18 U.S.C. Section 9229(g)(9)) The Amendment to New Jersey’s gun law (like the Lautenberg Amendment) barred anyone convicted of certain qualifying domestic violence offenses from possessing a firearm.

Plaintiff was a corrections officer. In 1999, he was arrested on a domestic violence charge.  Although indicted on more serious charges, plaintiff eventually pleaded guilty to a disorderly persons offense involving domestic violence in 2000.  Thereafter, plaintiff was served with a Preliminary Notice of Discipline (‘PND’) by the New Jersey Department of Corrections, seeking his removal from public employment due to his disqualification from carrying a gun under Federal gun laws.  Plaintiff was ultimately removed from his corrections officer position, and after filing two appeals in state court, and having his removal overturned where other subsequently issued PND’s for the same domestic violence offense were challenged, was again cited for disciplinary removal after New Jersey passed its own version of the Lautenberg Amendment in 2004.

Noting the long and arduous procedural history of the case, the Appellate Division on this third appeal of plaintiff’s removal from service was unwilling to grant plaintiff another reprieve from the loss of his job.  The Court rejected plaintiff’s argument that he was being subjected to an ex post facto law in violation of the United States and New Jersey Constitutions, holding that the law was not retroactive because it only drew its applicability based upon events that already occurred – it did not make certain conduct illegal retroactive after the event.  Also rejected were allegations that the DOC violated New Jersey’s entire controversy doctrine because it waited too long to issue the last PND. In sum, while the Appellate Division was critical of the lack of efficiency in how the case was litigated over the years, it was nevertheless unwilling to ignore the clear legislative intent of the 2004 amendment that was designed to expand New Jersey’s gun law to prohibit the possession of a firearm by any person, without exception, convicted at any time of a disorderly persons offense involving domestic violence.

The decision in this case is certainly a major victory for public employers, as it recognized the employer’s right to remove a public employee where that employee is unable to perform an essential job requirement such as carrying a firearm.  Therefore, it is reasonable to anticipate that in future cases where similar types of disqualifications occur that impact upon a public employee’s ability to meet certain core job requirements, that similar discharges will likely be upheld under the rationale of In re: Frazier.