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The Memo that let Shaneen Allen — and Chris Christie’s political future — off the hook

The Memo that let Shaneen Allen — and Chris Christie’s political future — off the hook

Attorney General legal memo gave prosecutor cover to drop the prosecution of Allen, and thereby removed a thorny political gun control problem for Christie.

Miguel from the excellent GunFreeZone blog brings the goods again with his post “New Jersey slaps some lipstick to their gun laws pig.”

In that post, Miguel shares a memorandum from acting New Jersey Attorney General John J. Hoffman that allowed County prosecutor Jim McClain to back away from his outrageous prosecution of Shaneen Allen, and may have saved Chris Christie’s Presidential aspirations from an early death at the hands of the Garden State’s draconian gun laws.

Allen is the Philadelphia nurse who broke New Jersey law by carrying her Pennsylvania-licensed handgun in her car’s glovebox into the Garden State. As punishment, the Atlantic City prosecutor demanded that Ms. Allen spend a minimum of three years in prison.

The handgun was never taken out of the glovebox while Allen was in New Jersey, except when confiscated by the New Jersey State Police after the ill-informed Allen volunteered to them at a traffic stop that she possessed the gun, in the mistaken belief that her Pennsylvania gun permit was valid in New Jersey.

Allen, who had no prior criminal history of any sort, was peremptorily denied access to New Jersey’s pre-trial intervention (PTI) program, despite the fact that no one alleged she had any intent to use the gun unlawfully or to harm any person.  (In contrast, Baltimore Ravens football player Ray Rice was quickly ushered into the state’s PTI program after videotape emerged of him punching his wife unconscious in an elevator.)

Atlantic City prosecutor McClain drew widespread condemnation, and created a particularly awkward situation for New Jersey’s Governor Chris Christie. Imprisoning a young mother who had no malicious intent was not going to help him win over America’s 100 million gun owners.

Fortunately, a memorandum released by New Jersey’s Acting Attorney General seems to have turned the situation in favor of Christie.

Without mentioning Ms. Allen directly, the memo addresses “a pending case that attracted public attention to the operation of the Graves Act.” The Attorney General’s office claims to have learned of Allen’s case on August 8, 2014, just six weeks prior to their release of this memo, despite the fact that Allen was arrested in October 2013, and that her case had received a great deal of publicity in the intervening 10 months.

Miguel has obtained a copy of that very memorandum.  The PDF is embedded at the bottom of this post, but I’ll summarize it in bullet points here:

Under current NJ law an otherwise law-abiding resident of another state who brings into NJ a lawfully acquired firearm that they could lawfully carry in their home state is subject to mandatory minimum sentencing under the state’s Graves Act.

In most of these cases imprisonment is neither necessary or appropriate to serve the interests of justice and protect the public safety.

As has been the practice in NJ, in the absence of case-specific aggravating circumstances these defendants should not be sentenced to incarceration.  Two alternative paths should instead be employed.

First, the prosecutor should consider allowing participation in PTI, basing the decision on case-specific aggravating and mitigating factors (described further below).

Second, where PTI is deemed inappropriate this memo establishes a rebuttable presumption that the prosecutor will offer an initial plea deal that imposes no more than non-custodial probationary sentencing.

Canvassing all 21 County Prosecutor’s Offices it was learned that absent some case-specific aggravating circumstance defendants of this type who commit these gun offenses inadvertently are not sentenced to State Prison. This reflects that in such cases PTI participation or a non-custodial probationary sentence is sufficient to achieve the deterrence and public safety goals of the Graves Act.

The Graves Act was intended to address gun possession crimes that pose a greater risk to public safety than the offenses committed by out-of-state visitors who do not realize that their authority to carry a weapon in their home state does not extend to New Jersey.

SCOPE:  This clarifying memorandum applies only to Graves Act cases where the defendant is an out-of-state resident who produces proof that: 1) the firearm had been lawfully acquired in another jurisdiction, 2) defendant’s possession would have been lawful in his or her home jurisdiction, and 3) defendant was under the misimpression that such possession was lawful in New Jersey.

In such cases County Prosecutors in applying their discretion should consider the following special mitigating/aggravating factors.

MINIMAL EXPOSURE OF THE FIREARM TO PERSONS IN NEW JERSEY.  For example, was the firearm kept within a vehicle at all times while the defendant was in New Jersey, or was the weapon carried or intended to be carried on their person.

GUN-POSSESSION OFFENSE WAS ISOLATED AND ABERRATIONAL. Was the defendant committing any other separate offenses at the time of the unlawful possession of the firearm. It would be expected, of course, that some other offense must have occurred to attract the attention of law enforcement, so the risk that offense posed to public safety should be considered.

VOLUNTEERING PRESENCE OF FIREARM. Admitting the presence of the gun to inquiring police is a mitigating factor, but even more so would be volunteering the presence of the firearm even absent inquiry. In contrast, lying about the presence of the gun would be an aggravating factor and an indicator of consciousness of guilt.

SURRENDERING UNLOADED FIREARM FOR SAFE-KEEPING. These are circumstances were out-of-state guests check into a hotel and request that the hotel secure their firearm to prevent it being stolen from their hotel room.

CIRCUMSTANCES CONCERNING CONFUSION OF NEW JERSEY AND OTHER-STATE LAW.  Where the defendant had not been advised of the limitations on the right to possess or carry a firearm. In contrast, if the defendant’s firearms permit explicitly stated “Not Valid In Other Jurisdictions,” that would be an aggravating factor.

This memo appears to be all but custom-crafted to precisely address the conditions of the Shaneen Allen case.

Only the hotel-specific factor does not apply to Allen’s case; it could hardly be left out, though, as hotel stays are the most common circumstances in which the departures from the Graves Act have been permitted in Atlantic County, home to Atlantic City and it’s many out-of-state visitors.

Although the memo doesn’t roll back New Jersey’s draconian gun laws, it could serve as a tool that Christie can use to temper criticism from conservative voters about his attitude toward expanding Second Amendment rights.

Here’s the actual memo:

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

Will they return her weapon?

    jakee308 in reply to genes. | September 29, 2014 at 7:22 pm

    Heck. Is she now a felon and no longer able to possess a weapon even in PA?

    This isn’t going to save Christie. The NJ laws are dumb and tyrannical and he’s all for that.

    It will keep her cases optics off the TV during 2016 but to us hard core 2A folks, that she got off doesn’t give him a pass.

    And he’s got other problems. Just his arm in arm stroll on the beach like two lovers with Obama during 2012 is enough.

    How could he be so politically deaf? Or was it his real self being shown to the world in a moment when he forgot that the whole world was watching?

      You’re correct that this won’t help Christie as there more instances where Chris Christie’s New Jersey has delighted in persecuting legal gun owners.

      11rufus11 in reply to jakee308. | September 30, 2014 at 8:37 am

      After successful completion of the PTI program the record of her conviction and arrest will be erased as if nothing ever happened. As for her pistol being returned, not sure.

That’s not enough to save him. He’s still supports gun control, amnesty, common core, big gov and NJ finances are a mess. Add in that the NJ is one of the last primaries and that NJ likes Hillary, Christie isn’t going to get very far.

    I concur, on every count.

    But even if most of that were NOT the case, I don’t see a politician from a “slave state” becoming President of all 50 states.

    I mean a non-Progressive candidate, of course.

    –Andrew, @LawSelfDefense

BannedbytheGuardian | September 29, 2014 at 7:26 pm

This is the basic research you should have done before you got on your high horse a few days ago.

Even I found references to this directive with a simple search.(Fox ).

It is still NJ 1. Shaheen Allen 0.

Now she has to spend time in NJ learning stuff , you could maybe drop & teach her how to read .

Christi may “use this as a tool” but as for me, there is no redemption for Christi on the gun control issue. I WILL NOT VOTE FOR CHRISTI. What would be the difference between him and a democrat?

BannedbytheGuardian | September 29, 2014 at 7:32 pm

Ps – you could be her new baby daddy. She is single (surprise!)

This woman spent forty days in prison. During that time our esteemed governor was travelling the country campaigning to be president.
Pray he is NEVER even a candidate.

in the mistaken belief that her Pennsylvania gun permit was valid in New Jersey.

I have trouble believing this one.

There are some special circumstances in which it might be plausible, but I don’t think they apply here.

    There is a patchwork quilt of gun laws from federal to state down to local. Pretty sure I’ve been in violation through ignorance while traveling through other states (some of which ignore federal laws on transportation).
    Should the R’s run Christene, they’ll get their heads handed to them. He’s as lousy a choice as McCain or Dole.

      randian in reply to 4fun. | September 29, 2014 at 10:48 pm

      I’m sure that if you had the money you could eventually get your state conviction quashed on appeal in Federal court. The problem is you’d have to spend several years in jail first. More likely such a threat would convince the DA to let you go and just take your gun. They don’t want to risk their laws getting overturned in Federal court.

      Twanger in reply to 4fun. | September 30, 2014 at 10:08 am

      Yes, exactly.

      There are so many laws, too many, that nobody can know them all and therefore you are at the mercy of “selective enforcement.”

      That’s the way the system wants it.

    I don’t. Last fall, I was at a town hall meeting hosted by a state representative who has a district that spans the west side of chicago and nearby affluent suburbs. The meeting dealt with the concealed carry law. About 85% of the audience was black and the other 15% was split between OFWG and social justice anti folks.

    At one point the rep asked for an informal show of hands asking how many people have ever carried a handgun in Chicago. about 1/2 the hands in the room went up including all of the state reps staff. I think the vast majority of folks knew that they were carrying illegally, but would not be surprised if there were those that did not. Heck, my uncle thought Chicago had the same rules as Arizona regarding carry back in the 90’s… luckily he never got caught.

    I’m sure there are some people who know that they’re not exactly “within the lines” when carrying in NJ on an out of state license.

    I’m also sure they’re not aware it’s a 3 to 10 year felony sentence.

    I expect they’re anticipating something more like a traffic ticket.

    Hey, travel into a slave state, deal with the slave state laws.

    –Andrew, @LawSelfDefense

    sequester in reply to tom swift. | September 30, 2014 at 3:53 pm

    I-84 in New York snakes through portions of Connecticut without an exit. I-15 traverses Utah, snakes into Arizona and then right back into Utah.

    Tell me how you would handle this situation on your drive to work with your lawful firearm?

Chris Christie is a RINO as far as I’m concerned.

The fact that these gun control laws still exist after he’s taken office doesn’t help him either. If you’re a gun owner and you vote for him, you’re a damned fool.

New Jersey is a no-man’s land. Stay away. Don’t visit. If you have family there, convince them to move out. Abandon that sinking ship.

They’ll even give out of state cops (NYPD for example) hell if they go over there.

10 seconds on google gets you a states’ gun permit reciprocity map:

http://www.usacarry.com/concealed_carry_permit_reciprocity_maps.html

There are some laws so obscure / counterintuitive / idiotic that I feel ignorance is a defense, but this ain’t one of them.

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