Supremacy Clause Trumps New Jersey Restrictions on Police Officers’ LEOSA Rights

by | February 13, 2024

Federal Law Enforcement Officers Association v. Attorney General New Jersey, 2024 WL 607340 (3rd Cir. 2024)

In Garrity v. New Jersey (385 U.S. 493 (1967)), the Supreme Court held that “police , like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” In a recent case from New Jersey, the 3rd Circuit Court of Appeals reminded the New Jersey Attorney General that the Supreme Court wasn’t kidding. Officers are often the subject of civil rights lawsuits brought under 18 U.S.C. § 1983. In this case, officers were the plaintiffs.

In 2004, Congress enacted the Law Enforcement Officers Safety Act (LEOSA) to allow any qualified active or retired law enforcement officer to carry a concealed firearm almost anywhere in the United States, regardless of state or local laws otherwise restricting the officer from carrying a weapon. The State of New Jersey enacted its own law imposing additional restrictions on active and retired New Jersey officers, as well as officers from other jurisdictions. The Federal Law Enforcement Officers Association and the Fraternal Order of Police sued the New Jersey Attorney General and Superintendent of the State Police over the apparently unconstitutional New Jersey law.

“It is difficult to imagine a clearer statement of preemption” than the language of the LEOSA.

The appellate court held LEOSA does provide certain active and retired officers with an enforceable right to carry concealed firearms, whether the officers are from another state, retired from a New Jersey agency, or from federal or out-of-state agencies. The court held, “LEOSA reflects Congress’s clear and unambiguous intent to confer a right upon individual qualified retired LEOs who comply with the statute’s identification requirements to carry a concealed firearm. LEOSA’s text demonstrates that Congress’s ‘unmistakable focus’ was on the individual right-holder…It is difficult to imagine a clearer statement of preemption” than the language of the LEOSA.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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