Nathaniel Firethorn
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In other news, the Salem nuclear reactor is going online, despite a cracked pump. Get ready for two meltdowns in PRNJ...Probation officers challenge ruling against guns
Judiciary says law allowing them to carry weapons violates constitution
Thursday, January 13, 2005
BY MARGARET McHUGH
Star-Ledger Staff
The state Attorney General's Office and the union for New Jersey's 2,000 probation officers yesterday tried to persuade an appellate panel to overturn a ruling that struck down a law allowing the officers to carry guns.
The probation officers' boss, the state judiciary, argued that the Legislature overstepped its authority when it created the 2002 law, violating the state constitution's separation of power between government branches and trouncing the judiciary's basic mission of impartial justice.
"It transfers them (probation officers) from employees that are impartial into gun-toting policemen," said attorney Cynthia Jacob, who argued for the judiciary.
The 2002 law creating a special unit of 200 probation officers to carry firearms and enforce criminal law never took effect because the judiciary challenged it.
New Jersey is one of at least 17 states that do not allow probation officers to carry guns, according to a 2001-02 survey by the American Probation and Parole Association. Some states require probation officers to carry guns, others make it optional, while some leave it up to local jurisdictions to decide, according to the survey. Federal probation officers carry guns, according to the Probation Association of New Jersey.
The association, which represents 2,000 probation officers and 800 supervisors, argued officers should be allowed to carry guns for their protection.
"I believe the safety issue is critical," said David Fox, the association's attorney. The association has been tracking incidents in which probation officers have been threatened and assaulted.
Appellate Judge Edith Payne said the matter to be considered by the panel "is much more than simply safety issues." The issue, Payne said, is the transformation of what the judiciary views the probation department to be to what the Legislature envisions.
Probation officers supervise 130,000 adult defendants and 20,000 juveniles, and that many of them go on to commit other crimes, Fox said. The state Administrative Office of the Courts said there were only 62,950 adults and 13,500 juveniles who actually required supervision by officers as of Dec. 31.
George Christie, president of the association, said the AOC was "just playing with the numbers."
Probation officers carry pepper spray and handcuffs and wear body armor, and allowing them to carry guns is just another way to protect themselves, Fox said. He said probation officers already have some law enforcement power, making about 1,500 arrests a year.
Jacob noted those arrests are for probation violations, and probation officers are not allowed to enforce the state's criminal laws. Probation officers' mission is rehabilitation, and that of law enforcement officers is prosecution of criminals, she said.
"Those two duties are in conflict with each other," she said.
Andrea Sullivan, special counsel for the Attorney General's Office, cited numerous examples of the Legislature enacting laws that impinge on the judiciary, such as dictating the number of judges in each county and requiring the chief justice to report to the Legislature about wiretaps and domestic violence restraining orders.
In fact, Sullivan noted, the Legislature created the probation department and has revised the law in 1954, 1972 and 1991 without challenge by the judiciary. "How is it unconstitutional when it wasn't before?" she asked.
Jacob's answer: The other changes didn't "invade our constitutional obligations and our constitutional rights."
The 2002 law also would have probation officers answering to both the judicial and executive branches, since the firearms training they would undergo would be supervised by the Attorney General's Office, Jacob noted.
Whatever way the appellate panel rules, the case will be appealed to the Supreme Court, although Chief Justice Deborah Poritz will not participate as she was involved in the decision to challenge the law.
Margaret McHugh covers the Morris County Courthouse. She can be reached at mmchugh@starled ger.com or (973) 539-7119.
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