On September 20, 2013, a 22-year-old private security guard named Steffon Josey-Davis was unloading his service pistol in his car when his six-year-old sister suddenly entered the garage. Hoping to avoid alarming her, Josey-Davis stopped what he was doing, placed his gun quietly into the glove box, and, having been “distracted by a chain of events,” quickly forgot all about it. Later that evening, while out for a drive with his girlfriend, he was pulled over for a minor traffic offense, at which point he volunteered to the officer that he had a loaded firearm in the front of the car, in violation of New Jersey’s transportation rules. The pistol was confiscated, and, when he went to pick it up later in the week, he was arrested and charged with illegal possession — a second-degree felony.
Of all the states in all the country, Steffon Josey-Davis had to screw up in this one.And yet a couple of factors complicate the story somewhat. The first is that, at the time of his arrest, New Jersey was experimenting with a firearms amnesty that explicitly applied to the very provisions of which Josey-Davis was eventually found guilty. Evan Nappen, the prolific firearms attorney who has now taken charge of Josey-Davis’s appeal, holds that his client should never have been detained in the first place. “He shouldn’t be in this situation,” Nappen says over the phone. “The amnesty was in force.”
Nappen has a point. Not only is the plain language of the law on his side, but he has a solid legal precedent to point to as well. In State of New Jersey v. Onn Rapeika, decided in January of this year, Judge James J. Guida dismissed a series of firearms-related indictments that had been leveled against a drug dealer because an “amnesty program (P.L. 2013, c.117) passed by the Legislature . . . was in effect at the time” when the police found his guns. “Armed with statutory construction and the synopsis that the law provides a ‘window’ to dispose of certain unlawfully possessed firearms,” Guida wrote, “the only logical conclusion to be reached is that defendant cannot be prosecuted for possession.” “The plain reading of the statute,” he added, “indicates defendant had until February 4, 2014 to exercise one of the disposal options authorized.” And yet the “firearms were seized on January 3, 2014,” a month before the deadline.
Indeed, if the appeals court agrees with Nappen’s logic, Josey-Davis may well find himself freed by the perverse breadth of the very rules that were used to prosecute him. Unlike most states, New Jersey does not have a law on the books that explicitly prohibits carrying a firearm without a permit; instead, the state requires anybody who is discovered in possession of a firearm to demonstrate either that he has a concealed-carry permit or that he is exempt from prosecution under one of the few legal exemptions that the state has reluctantly carved out in Title 2c:39–6 of its Code of Criminal Justice. Or, put another way, rather than presuming that its citizens may do anything with their firearms that has not been explicitly prohibited, New Jersey presumes that all gun owners are guilty of illegal possession unless they — or their temporary behaviors — are exempted from the law. The practical upshot of this is that if a gun owner cannot prove that he is exempt from prosecution, he is deemed by default to be in illegal possession — regardless of whether he has purchased his firearms legally (which Josey-Davis did), or whether he intended to commit a crime (which Josey-Davis did not).
This being so, Nappen’s amnesty claim makes a great deal of sense. Subsection b of Section 2C:39–5 of the New Jersey Code states that “any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.2C:58–4, is guilty of a crime of the second degree.” This, sadly, was the situation in which Josey-Davis found himself on September 20, 2013. And yet the amnesty law holds that “any person who has in his possession a handgun in violation of subsection b. of N.J.S.2C:39–5 . . . on the effective date of this act may retain possession . . . for a period of not more than 180 days after the effective date of this act.” If we take the precedent in State of New Jersey v. Onn Rapeika into account, the fact that Josey-Davis did not intend to hand in his firearm is besides the point. As Judge Guida noted, “the court cannot add the requirement that defendant take affirmative steps to dispose of the firearms prior to their discovery or presume that defendant had no intent to dispose of the . . . firearms within the time prescribed by the statute.”
If a state is going to go the trouble of issuing concealed-carry permits, it stands to reason that there should be meaningful punishments in place for those who refuse to play ball. There are, I would imagine, a good number of people reading this who would consider Josey-Davis to be extraordinarily lucky if, after a successful appeal, he is spared the consequences of his mistakes by a law that he did not know existed when he made them. But it is worth remembering that we are talking here about the state of New Jersey, a serial violator of the right to bear arms and the proud owner of an inexplicably arcane set of firearms laws that routinely destroy the lives of innocent people in retribution for what almost everywhere else would be considered minor infractions. Ignorance of the law is not an absolute excuse, of course. Nor, for that matter, can we expect the state to routinely turn a blind eye to violators. But can we find any virtue in destroying a young man’s life for such an inconsequential error?
In most of the country, the answer to this question is “no.” Had Josey-Davis made his mistake in 19 of the 50 states, he wouldn’t have been arrested in the first place (a growing number of jurisdictions allow those who are legally permitted to own firearms to carry in a vehicle without a permit); and, had he been stopped in 24 of the remaining 31, he would have been charged only with a misdemeanor. At present, there are only seven states in the union that treat permitless carry as a felony: New Jersey, Connecticut, Delaware, Michigan, Pennsylvania, Massachusetts, and Rhode Island. Whatever one may think of the man’s absent-minded blunder, Josey-Davis’s primary misfortune here seems to have been to live in a place so brutally unforgiving of error.
Alas, he is paying a cruel price for his lapse. Happily, his guilty plea and his lack of a previous criminal record were enough to keep him out of prison. As part of his deal, the state prosecutor agreed to waive the Graves Act (which imposes mandatory minimum sentences for certain firearms violations) and to allow him to serve his sentence on probation. Unhappily, however, he was not spared the felony conviction that has all but ruined his prospects. At the time of his arrest, Josey-Davis was employed as a security guard; as a felon he is now prohibited from working in that role. Before his conviction, he had hoped to become a police officer; as a felon he cannot so much as apply for an interview. Worse still, he is now barred from voting, and he is prohibited by law from purchasing, owning, or carrying a gun. As he puts it in a Change.org petition that has attracted more than 85,000 signatures, his “future has been derailed” by overly punitive rules. And why? Because he committed a “crime” that caused no harm to anybody.
There is one positive, perhaps. Back when Josey-Davis was convicted, he remained unaware of New Jersey’s ugly reputation as a disaster area for gun owners, and in consequence resigned himself to his predicament. In recent months, however, he has changed his mind. “Because of Shaneen Allen,” Evan Nappen tells me, “Steffon saw that others had suffered similar fates. So he’s become vocal. He didn’t realize that he could bring an appeal. Now we’re in a fight.” If recent history is anything to go by, that fight could well be won.
In February, prosecutors in Cumberland Country dropped a set of charges that had been leveled against a 72-year-old retired history teacher who had been caught with an 18th-century pistol. In September of last year, a single mother of two was spared prison time after widespread public outrage shamed the authorities in Atlantic County into treating her concealed-carry infraction as a non-violent mistake that warranted leniency and not damnation. “I am asking you,” Josey-Davis writes in his petition, “to please support me and ask Governor Christie to grant me a pardon so that I can continue to follow my dreams.” We might all hope that Christie hears him and comes through, and that he then engages with the hard work of corralling enough legislators into place to ensure that future indiscretions are not permitted to so casually ruin promising and innocent lives.
— Charles C. W. Cooke is a staff writer at National Review.