NJ man seeks pardon after legally owned gun makes him convicted felon

[Midwest]

New Jersey man seeks pardon after legally owned gun makes him convicted felon

(Or welcome to another episode of "Jammed Up in Jersey" )


Here we go again, NJ gun laws makes a man a felon. While the man, a security guard had his loaded 9 mm Smith and Wesson in the glove compartment. He was stopped by police for a simple traffic stop for an expired car registration, he opened up his glove compartment to get the paperwork for the car, he saw the gun (forgot he put it in there) and promptly turned it over to the police.

He claims the police told him to come to the Police Department with his security credentials and paperwork to get his firearm back the next day. He claimed he did as he was told and was charged with a second degree felony for unlawful possession of a firearm. He did NOT have a permit for the firearm at the time.

He hired famed NJ Gun attorney Evan Nappen and pleaded guilty and got a year probation according to the article. However Nappen maintains that there was some sort of an gun amnesty in NJ between August 2013 and February 2014 in which the prosecutor says there is no gun amnesty in this case.

What makes this newsworthy and very topical and relevant. This is now a national story, the defendant has asked NJ Governor Chris Christie for a pardon (which according to the article) that the Governor's office did confirm it received an application, and the governor is supposedly seeking public office and yet once again here is another story that sheds light on New Jersey's often confusing and convoluted gun laws.



http://www.foxnews.com/politics/201...on-after-legally-owned-gun-makes-him-convict/


The man's attorney says....

"New Jersey's gun control laws are out of control," he said. "It's clearly evident they need serious reform. The legislature is really ultimately to blame."


The prosecutor says...

"Describing his conduct as a simple mistake does not negate the seriousness of this law, which was created to protect police officers and the public," Carey continued. "Illegal gun possession is a second-degree offense, punishable by a prison term of multiple years. This defendant agreed to plead guilty and was placed on probation for one year."


Anti-gun Cease Fire NJ says....

"We think the law needs to take into consideration individual circumstances, but it's still a law that's for the well being of the people of New Jersey," said Rev. Robert Moore, executive director of the Princeton-based group, Coalition for Peace Action, which oversees the gun control project known as "Ceasefire NJ."

It will be interesting to see if Chris Christie gives the man a pardon. It would be equally interesting if these type of cases at least stirs debate in NJ in possibly changing their gun laws and bringing that state back into the 21st Century.

NJ seems to be stuck forever in some 1980s time warp in respect to gun rights where Handgun Control, Million Mom March and the Brady Bunch are still relevant.
.

 

[joem1945]

I hope he wins his pardon but in new jerkey the outcome is doubtful.

 

[MEHavey]

Remember all... this was having a concealed weapon (however unthinkingly it
was put in his glovebox) without a CCW, not just for having "a legal gun."

 

[gun_with_a_view]

The prosecuting attorney knows good and well after Heller the NJ law is unconstitutional, an automobile being the same as a house, a constitutionally protected area.

 

[MEHavey]

an automobile being the same as a house...

Now that's a new one.
`Anyone got a ref/cite?

 

[MedWheeler]

The prosecuting attorney knows good and well after Heller the NJ law is unconstitutional, an automobile being the same as a house, a constitutionally protected area.

There are very few states that have adopted this ideology. New Jersey is not among them (neither is my home state of Florida, which is markedly more in favor of the 2A than is NJ. This man's gun, however, would have been legal as carried were he here.)

 

[Sam1911]

Here we go again, NJ gun laws makes a man a felon.

Well...technically BREAKING the law makes him a felon. Not the law itself.

And the title is misleading. Sure the gun was "legally owned" but it was used/possessed in a manner that violated standing law. I mean, I might stave in my neighbor's head with my legally owned hammer, but the fact that I legally owned it doesn't make a whole lot of difference.

(I suppose the situation might be ever so slightly worse if I'd stolen the hammer, thus didn't legally own it, but it seems a trifling thing under the circumstances.)

"Some sort of gun amnesty" doesn't seem like a very strong defense...



I'm all full of sympathy for the guy and loathing for the laws of NJ, but we again find ourselves acting the fool with our use of language and that's just sad.

 

[BSA1]

In addition a guilty plea is a admission of knowingly breaking the law. Hard to cry it wasn't a foul after admitting you hit the foul ball.

 

[DHJenkins]

From http://www.state.nj.us/njsp/about/fire_trans.html :

The firearm should not be directly accessible from the passenger compartment of the vehicle. If the vehicle does not have a compartment separate from the passenger compartment, the firearm and ammunition must be in a locked container other than the vehicle's glove compartment or console.

Which part is convoluted/confusing?

He broke the law, admitted he broke the law then plead guilty to breaking the law. Any "honest mistake" argument should have been made at trial.

 

[Rob G]

I think as gun owners we need to realize something very important: just because we disagree with a law or feels it's unfair, unconstitutional, etc. doesn't change the fact that breaking it will likely end in our arrest and prosecution. In the even of a truly unconstitutional law a great deal of time and money may lead to an overturned conviction but in the meantime you'll still be a criminal and you'd better be rich enough to afford the appeals.

If this guy really did accidentally drive around with his gun in the glove compartment then I feel bad that his life is being messed up. However he "forgot" he had a loaded gun in his car, which is just irresponsible at best, and then drove around with said weapon, in complete violation of local law which he is responsible for following. I really don't think he has much of a case and flame me if you want but I don't think I want somebody out there owning a gun who can so easily forget where he left a loaded weapon.

 

[Officers'Wife]

I look at it this way, this person was foolish enough to believe if he worked with the system he would get a fair shake. It's no great tragedy for someone that stupid to lose his freedom and have his rights suppressed.

 

[RMc]

Alabama law for transporting a handgun in a vehicle W/O a "pistol permit" differs little from NJ except for the misdemeanor level penalty. All stated bordering Alabama do not require a pistol permit for transporting a loaded handgun in a vehicle.

Caveat: IANAL

 

[herrwalther]

There is no such thing as a legally owned firearm in New Jersey.

(Obvious hyperbole but pipe dream for NJ politicians.)

 

[gun_with_a_view]

very few states that have adopted this ideology. New Jersey is not among them

Heller was a SCOTUS case, and the opinion applies equally to all U.S. jurisdictions. New Jersey doesn't get to run it's own show. It just takes while for things to trickle down. In the meantime, that DA knows the New Jersey statute is unconstitutional, but will continue to prosecute such cases. Election time will come again one day.

 

[MEHavey]

Heller was a SCOTUS case...

State laws notwithstanding, I'm still waiting to hear how Heller specifically
applies to a concealed weapon in a car's glove compartment.

 

[MedWheeler]

Heller was a SCOTUS case, and the opinion applies equally to all U.S. jurisdictions. New Jersey doesn't get to run it's own show.

Heller also affirmed licensing, in the court's opinion, as a reasonable restriction on carrying firearms for defense.

This man had no such carry license.

Defense argument 1: Vehicle an extension of one's home? Nope.

Defense argument 2: Heller affirms all restrictions on possession outside the home as unconstitutional? Absolutely not.

 

[gun_with_a_view]

A person has the same expectation of privacy in an automobile under their control as they do in their home, consequently Heller applies. While New Jersey law may read differently, it remains unconstitutional law in the wake of Heller, albeit enforceable in New Jersey for the time being. Notice how they plead this guy out rather than risk going to court and thereby risk an overturn of the state law.

 

[MEHavey]

A person has the same expectation of privacy in an automobile under
their control as they do in their home, consequently Heller applies.

Uuuuuuh... No.

The jury's still out by a mile on that one:

~~~~~~~~~~~
The “NO Right to carry in public” side, more or less, includes Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); People v. Dykes, 209 P.3d 1, 49 (Cal. 2009); Little v. United States, 989 A.2d 1096 (D.C. 2010); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010); Williams v. State, 10 A.3d 1167 (Md. 2011); Commonwealth v. McCollum, 945 N.E.2d 937 (Mass. App. Ct. 2011); and People v. Perkins, 880 N.Y.S.2d 209 (App. Div. 2009). Indeed, McCollum went so far as to say that possessing a gun in someone else’s home can be punished, without regard to whether the resident has allowed or even asked the gun owner to bring the gun.
~~~~~~~~~~~

~~~~~~~~~~~
The “Right to carry in public” side — though subject to regulations, such as shall-issue licensing schemes — consists of Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar (Ill. 2013); State v. Christian, 307 P.3d 429 (Ore. 2013); People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012) (dictum); Ex parte Roque Cesar Nido Lanausse, No. KLAN201000562 (P.R. Cir. 2011) (seeming to hold this view); Hertz v. Bennett, 751 S.E.2d 90 (Ga. 2013) (Blackwell, J., concurring, for three of the seven Justices); and now this two-judge position in the Ohio Court of Appeals.
(Wash Post Srcs)
~~~~~~~~~~~

I'd not advise an " I-got-my-rights" defense pending another SCOTUS ruling that does address the particulars.

 

[lilguy]

"He hired famed NJ Gun attorney Evan Nappen and pleaded guilty and got a year probation according to the article"

Now infamous gun attorney Evan Nappen.

 

[BSA1]

A person has the same expectation of privacy in an automobile under their control as they do in their home, consequently Heller applies.

Warrantless searches of motor vehicles has been upheld many times by the Supreme Court.

Starting in 1925 Carroll v. United States, 267 U.S. 132, the United States Supreme Court upheld that the warrantless search of an automobile is known as the automobile exception. In what is known as the Carroll doctrine: a vehicle could be searched without a search warrant if there was probable cause to believe that evidence is present in the vehicle, coupled with exigent circumstances to believe that the vehicle could be removed from the area before a warrant could be obtained.

In Chambers v. Maroney Citation, 399 U.S. 42 (1970) the court reasoned that there was little difference between seizing a vehicle without a warrant and holding it until a warrant is obtained and simply searching the vehicle without a warrant

More recent cases in which the Court affirmed warrantless searches.

Harris v. United States, 390 U.S. 234 (1968) officer who opened door of impounded automobile and saw evidence in plain view properly seized it.

Texas v. Brown, 460 U.S. 730 (1983) contraband on car seat in plain view of officer who had stopped car and asked for driver's license.

New York v. Class, 475 U.S. 106 (1986) evidence seen while looking for vehicle identification number.

The Supreme Court has upheld "Plain View" searches of private residences many times also. When I was taking pre-law classes I had a 6" thick text book of 4th Amendment Supreme Court cases.

 

[gun_with_a_view]

The jury's still out by a mile on that one

Indeed. Obviously, this issue needs a ruling from SCOTUS given all the differing lower court decisions ME has cited. It's a pretty safe bet the Supremes will eventually rule a car is a protected area for a loaded handgun, but you just never know which way any court is going to rule. That's why prosecutors like to plea these cases out before trail. They don't want their derrieres in the SCOtus squeeze box before election time. And it's always before election time everywhere.

bsa1, The issue isn't the legality of a vehicle search. It's that it's legal to have a handgun found in a search of your automobile.

 

[BSA1]

As I understand the case a Officer made a arrest after observing a legal item being used in a illegal manner that was in his plain view. While the driver was not a prohibited person and the gun by itself is legal not having a permit for it put him in violation. (Does this mean if he had a permit he would have been ok)?

I don't know what you mean by a "protected area". The Supreme Court has upheld reasonable restrictions on firearms.

In some places you must have a permit to own a gun even in your own home. Is N.J. one?

Other States place restrictions on where you can use firearms and accessories. For example state law allows legal possession of high capacity magazines only in the home and use on a shooting range. Are you saying that since my vehicle is my residence then it is legal to always keep the high capacity magazines in it? In other words negatating the state law. By doing so you are trying to apply the search and seizure standard for a residence to a vehicle. The Supreme Court has repeatedly said no.

 

[gun_with_a_view]

In other words negating the state law

Of course a Supreme Court decision will negate conflicting state law.

SCOTUS in Heller ruled for reasonable restrictions on handguns. It did not define those restrictions beyond three, however and any other restrictions face an almost insurmountable burden in a legal challenge subject to strict scutiny.

Again, the issue is not the legality of a vehicle search, but that the prosecution for possession of a handgun without a permit is unconstitutional under the basic doctrine established by Heller, namely that there are certain private, protected areas where the government cannot exercise control over your handgun. Those protected areas with multiply in number as the case history accumulates post Heller.

Meantime, that DA knows he was out of line.

 

[MachIVshooter]

I'm assuming the man is a resident of NJ?

While their laws may be beyond draconian, if you live within the state and are a gun owner, you had danged well better know the law, and abide by it if you don't fancy the idea of convictions and jail time.

Likewise, if you are not a resident of the state but will be traveling within, you need to be in compliance with the provisions of FOPA.

I feel for the folks who get snared by these stupid statutes. Really, I do. But at the same time, had they done their due diligence, they would never have been in trouble, or they'd be in a position to sue the local/state LEA that exceeded their authority by attempting to undermine/overrule federal law.

Now if, for example, someone is in compliance with FOPA while traveling through NJ and gets popped for their stupid HP ammunition law, that's a whole 'nother animal. If in compliance with FOPA and traveling from one place to another in which the weapon and ammunition are legal, that person has a right to expect safe passage through NJ. And that is exactly why FOPA was passed; to make it possible for a person to travel with firearms without having to know every little nuance of state and local laws in each of the jurisdictions through which they will be traveling, requiring only that they know the applicable laws where they are coming from and at their destination.

 

[MedWheeler]

Heller never ruled that the unrestricted possession of a firearm was a right to be enjoyed to all.

Any defense this guy could have had before pleading guilty would have nothing to do with Heller.

His defense has to be based on current law, not on the possibility that, one day in a dream, current law might be repealed.