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 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.DONATE
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