On one hand it is a bullshit law.  But, on the other, the police should not be above the law- that they helped create.  Caution: this story contains sweet irony and poetic justice.


BY MATTHEW J. DOWLING
Star-Ledger Staff

The prosecution of a former Far Hills police sergeant on charges that he illegally owned an assault weapon has raised questions about the extent that law enforcement officers are exempt from New Jersey's 1990 assault weapons ban.

The case against former Sgt. Kenneth Moose centers on whether police officers are allowed to possess assault weapons listed as banned under the law or only those weapons that pertain to their official police duties, such as machine guns issued to SWAT team officers.

The New Jersey Police Benevolent Association, the largest police union with 33,000 members, has intervened in Moose's case arguing that the exemption for law enforcement includes the possession of personal assault weapons.

"Thousands of police officers who belong to the PBA would be affected by this decision," said Robert Fagella, the PBA attorney. "Police officers have always been exempt."

Moose was suspended from the five-member Far Hills police force in August pending a psychiatric evaluation and had to surrender his service and personal weapons to authorities. Among those personal weapons was a World War II-era M-1 carbine assault rifle, which is on the banned list in New Jersey.

He was indicted on a third-degree charge of possession of an assault weapon and could face up to five years in prison if convicted. Moose has a hearing scheduled for today before Superior Court Judge Edward Coleman, where he will seek to have the indictment dismissed.

Somerset County Assistant Prosecutor Matthew Murphy has argued in court documents that the law enforcement exemption in state's assault weapons ban does not apply to the M-1 carbine owned by Moose, which was given to him as a gift in 1990 and never registered.

"There can be no rational basis for treating citizen-police officers differently from all other New Jersey residents and permit the secret acquisition and private possession of unregistered assault firearms that have no connection to law enforcement," Murphy wrote in his brief.

Former Gov. James Florio, who signed the assault weapons ban into law, said the exemption for law enforcement officers was not intended to apply to personal assault weapons like the one Moose kept in his home.

"The police exemption was included because of the weapons they would use as part of their responsibilities," Florio said in a recent interview. "The reason why there is an exemption for police officers is because they are special individuals performing a special function."

Robert Del Tufo, who was attorney general under Florio when the ban was enacted, gave a similar interpretation of the exemption only applying to assault weapons used for law enforcement duties.

The PBA gave a crucial endorsement to the landmark assault weapons ban in 1990 that helped Florio win approval for the legislation. Fagella said that endorsement came with the understanding that law enforcement was entitled to a broad exemption.

"Both the Legislature and the Florio administration specifically intended that police officers be completely exempt from the assault firearms ban," Fagella stated in a recent court filing.

Murphy called the PBA's position "shocking" and argued it would "be opening the door and sanctioning a veritable underground of unregulated assault firearms," in his brief to Coleman last week.

The PBA, however, points out that in the first 12 years the assault weapons ban has existed, no police officers have been prosecuted under that interpretation of the law. A case similar to the one against Moose is currently pending in Atlantic County.

Fagella obtained a statement from Wayne Fisher, former deputy director of the New Jersey Division of Criminal Justice from 1988 to 2002, indicating he understood the exemption for police officers allowed for the possession of assault weapons.

"To the best of my knowledge, neither the Attorney General nor the Division of Criminal Justice has ever purported to regulate the mere possession of any type of off-duty weapon, including assault weapons, owned by a municipal police officer," according to Fisher's statement to the court.

Moose's attorney, Bruce Goodman, said the fact that there are conflicting opinions on the intent of the exemption in the assault weapons ban should be enough to dismiss his client's case.

Moose, 39, who retired from the Far Hills police department in December after 14 years on the force, obtained the carbine in 1990 from Virginia Dillon, a family friend. Dillon gave Moose the weapon after her husband John -- a World War II veteran -- died, according to court documents.

Moose fired the gun on one occasion at a shooting range shortly after it was given to him in 1990 and then placed it in storage. It was being kept in a case under his bed without ammunition at the time he surrendered it to authorities in August, court documents state.

Goodman said the series of events that led to Moose's suspension in August were motivated by an internal power struggle for control of the department as the borough's longtime chief retired.

Moose had applied for the chief's job, but another officer who had less than three years experience in Far Hills was appointed to head the department. That officer, questioning Moose's fitness for duty, ordered his suspension in August pending a psychological examination, which required Moose to turn over all weapons. Moose was cleared for duty a week later, but by then the carbine had already been confiscated.

Moose was indicted on the charge of illegal possession of an assault weapon in October. Goodman said his client has struggled financially since his retirement because he is unable to find work and is barred from receiving his pension with the pending indictment.

Of course cops should be exempt from the laws we mortals have to follow.Just ask Randy Weaver.

Old news.

CRC

Prosecute.
I would be.

Prosecute.
The laws of this country apply to all equally. There are no priviledged classes.

Would he prosecute you?

Looks like NJ stepped on there own dicks with this one.  Its too bad that it has to come to this concering firearms.

If the psych eval was BS politics, there might be an argument to supress the evidence from his having to turn in his weapons, but that sounds like a long shot.  

OTOH if it was due to a use of force, or other non-manufactured incident, I'd say he's out of luck.

If the force is only five, I guess the town is small, and I smell an expensive lawsuit and  hope he gets a really sharp attorney.

By the way, the opioion of Florio and the opinion of the old AG maay not have much bearing in court.   The legislature writes the law, the governor sign it or not.  

The current AG's position is important as a guide post to how they will try to enforce it, and the former AG's position seems meaningless.  After all, he's not the AG now, is he?

And I'm not sure the judge even needs to listen to anything about either AG's interpretation.
IF there is case law, he will listee to that, and maybe to arguments based on legislative records.   But the AG's are just lawyers.

The whole case is goiung to hinge on what the law means, and if he loses, there may well be an appeal.

I say prosecute!!  If I can't own it, and he'd prosecute me for owning it?  Then there's no reason for him to be able to own it.  Not like he takes it to work with him!!   Of course, I do believe that we should all be able to own them, but I'm tired of double standards in this country for LEOs!

He needs to be subject to the same rules as he is a CIVILIAN!  His prosecution may serve to illuminate the idiocy of these draconian laws, maybe.  More likely it will get some BS ammendment passed to protect even further the police force(standing army).  Thus continues the militarization of our nation's police force.  These will be the Red Coats of the next Revolution.  

It does seem a little wacky that those of us who carried the M16A2 cant even purchase a AR15 in the same state/country that we served. I guess the DD-214 of mine that says "HON discharge" means nothing to those who make the laws here in the PRK.

Clearly, he needs to be prosecuted. Why should a retired cop in NJ need an M1 (Assult Weapon) Carbine anyway? These kinds of things are just far too dangerous in the hands of the public, including retired policemen.  We need to protect the children.

Pintop

Prosecute. Why should cops be allowed to carry anything I can't? Or vice versa?

But, if you support prosecution, isnt that like supporting what we dont want to happen? Hmmm, a paradox.

No, it will help show the unwashed soccer moms how GD stupid these bans are. The 600lb gorilla here is the police union that supports the cop. The anti's are always spouting how the police support "their" side, this will help force a split, hopefully.

What irritates the shit out of my is them proseuting over a M1 Carbine, an anemic caliber. Not to mention a gun that helped defend America but not good enough for the unwashed masses of NJ!!!  Grrrrrrrrr.

Maybe the first 50 inland miles of both coasts will slide off one night & the US will be a better place for it.    [}:D]

The soccer moms will hear about the "bad cop" and believe he was bad AND he had an assault weapon.  There will be no fracture of the establishment.

This is quite an interesting thread.  Odd how suddenly the ends justifies the means for you guys who normally take the moral high ground.  If he should be prosecuted, then you must also believe that any one of us should also be prosecuted under these laws.  If you believe that ANYONE should be prosecuted under this law, then by definition you hold it to be a just law.  
Nice to know you guys are on my side.[rolleyes].  Wishing a conviction on this guy to prove a point is, well, pointless and actually counter productive to your goals.  Unless of course, you actually want more gun control.

For me, I say do not prosecute.  If I was on the jury, he would not be found guilty.

Where is Imbroglio when we need him?

This is old news. Covered by previous posts.

FYI, the Judge dismissed the indictment.

Mike

so what does the dismissal mean? that leo in nj can own any banned firearm they want?

I thought that this was funny when I saw it.

Sounds like this guy is getting a little pay-back.

On a serious note:  It is a sad day when we cannot own/keep the tools that our fourfathers used to defend our freedoms.  This is so close after memorial day That it is not funny.  I have a cousin serving in the sand dune that did not get to see his first baby( a boy ) being born and has yet to hold it, because he is serving our country and helping to free another country.

It is time that our law makers under stand what is near and dear to our country.

It is not the guns that is is the problem.

Rant off-

Badredfish [devil]

You're right about one thing.  The town is small, but it's one of the "richest" communities in the country.  I used to live in the towns on either side of it, Peapack and Bernardsville.  The town has the money to smear him like a shitstain if they want to.  He obviously pissed somebody off badly.

As much as i don't like the double standard, no he shouldn't be. However they do need to go and clerify that law, and by clerify i mean take it off the books

Yes, no and no.

Yes, because he violated the law, and there was no exemption that let him possess a completely privately owned weapon, the M1 Carbine, that had nothing to do with official duty or law enforcement purposes. While my state laws allow me to possess Department-owned FA weapons (which I really enjoy), that does not extend to me possessing my own personal Post-86 MG. He is not above the law, and should be prosecuted (and is).

No, because NJ's AWB, and the federal one, are both unconstitutional. They are still the law, though, until overtutrned by an apellate court, and should be enforced equally.

The final "no" is trickier, but probably his most valid case at not getting convicted. The administrative order to surrender his weapons, and the "administrative" search of his residence for weapons were both covered under "Garrity" rules, which stem from a New York case from many years ago. Basically, Police Officers lose their rights to self-incrimination, unlawful search and 1st Amendment issues as far as internal Department matters go, but, anything that comes from those administrative searches, IA interogations, and other management driven stuff cannot be used in subsequent criminal investigations. The M! carbine was the fruits of an administrative search, and it should be supressed from his criminal AW violation trial. He would lose the weapon, but so would the prosecutors.

Since all of those "assault weapons" are illegal in that state I don't see why the cops would need them either.

Prosecute.

natez,

The statues specifically states that he could possess an assault weapon "at all times" while in NJ. It is not depandant upon being "on duty" or department authorized.

Mike

Not being from NJ, I didn't know that. The Carbine should still be excluded as evidence of criminal conduct, because it was the product of an "administrative search," and Garrity very clearly states that the products of police unconstitutional administrative actions against their own officers, while legal, can only be used for administrative and not criminal purposes.

The law states he can have the weapon but all the whiny liberals were mad that they BLANKET exempted LEOs. The law obviously needs to be clarified.

They are upset the cops can own "assault weapons" THAT DON'T ENFORCE THEIR LEFT WING LAWS!

CRC

He should be Prosecuted! Is a cops life more precious than your own or your kids? I am tired of the double standards.This is the same as those "hate crime" laws. Is some pole smoker or carpet munchers life so much more important than a straight man or womans? New Jersey is just a piece of land that prevents Pennsylvania from being beachfront property! Those assholes deserve what they get, look who they vote for!

If a law is unconstitutional is it still a law?????
BIG