Politics & Policy

False Imprisonment

New Jersey’s gun laws aren’t merely restrictive, they are gratuitously punitive.

Up until the point that they infringe on the Second Amendment, New Jersey’s lawmakers have every right to pass restrictive gun laws. To the extent that these laws have the support of the state’s population, legislators should pass them. That’s how constitutional democracy works.

What no legislator should ever do, however, is allow the police to throw innocent, well-meaning people in jail. And that’s what New Jersey’s state government has been doing for the past several years.

#ad# Utah’s Gregg Revell is a victim of this trend, but his is only the most recent story to make the news. Just last week, the Supreme Court declined to consider his lawsuit against the Port Authority of New York and New Jersey, which had been dismissed by a lower court. The court decision is debatable, but what’s certain is that what happened to Revell under New Jersey law was unconscionable.

His lawsuit stemmed from his arrest in New Jersey in early 2005. Revell had booked a flight from Salt Lake City to Allentown, Pa., which included a transfer in Newark. He was picking up a car he had bought online and driving it back to Utah, so he wanted his handgun with him for protection. As the law requires, he declared the gun when he checked his bag.

Unfortunately, his flight was late, and the airline decided to send passengers to Allentown via bus. He checked to see whether his luggage was on board — and it wasn’t. The airline had tagged it to stop at Newark. He left the secure area to get his bag, the bus left without him, and the airline decided to put him in a hotel for the night.

The next morning, though he was (once again) boarding a bus to Allentown, he needed to go through flight security — and that’s when problems started. He declared his firearm at the ticket counter, and again to the TSA. “They went in back, then came up and asked for the keys,” he recalls. “They opened them and decided they would call the police.”

Revell was arrested. In New Jersey, residents are forbidden to have their guns with them outside their homes, unless they have a New Jersey carry permit or qualify for an exemption to the law. Federal law protects people who are simply passing through a state with guns, but it does not specifically say that it applies when guns are being carried by hand, as opposed to being stored, unloaded, in a vehicle.

Police handcuffed Revell and brought him out of the airport. “All the mothers were pulling their children close to them because of this dangerous criminal coming through,” Revell remembers. He spent a total of ten days in jail. He was held first in a Port Authority holding cell, next in an Essex County cell with about 20 other inmates and a toilet that didn’t flush. He was in quarantine, about to be transferred into the general population — no place for a 57-year-old white man, other inmates warned him — when his $15,000 bail came through.

It took two months for the charges to be dropped via an “administrative dismissal.” “I thought I would lose my real-estate license, because you can’t have one if you’re a felon — and go back and be killed in jail,” he says. “Not a fun two months.” Later, the NRA and the Association of New Jersey Rifle and Pistol Clubs helped him sue the Port Authority. The courts, however, decided that the federal law protecting the transportation of handguns did not apply to his situation.

Revell isn’t the only person who’s been tortured by New Jersey’s gun laws. Especially problematic is the Graves Act, which was a perfectly fine policy when it was enacted in 1981: It stated that when someone uses a gun to commit a crime, that person shall serve a minimum sentence of three years. In early 2008, however, then-governor Jon Corzine signed an amendment to the law, aiming to combat gang violence. Now, with a few exceptions, anyone caught with an illegal gun — no matter how obscure the technicality or how innocent the mistake that made it illegal — gets a three-year sentence.

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It became clear what a mistake this was almost immediately. A young man named Ryan Narciso was caught speeding with a BB gun in his car and faced a possible three to five years in prison. Narciso avoided jail time on an exception to the law, and the attorney general released a directive that allowed dismissals and downgrades in certain cases (including those involving BB guns). But the directive also stressed that outside of those cases, when a prosecutor can charge someone under the Graves Act, the prosecutor must.

#ad# In January 2009, Brian Aitken was in the process of selling a house in Colorado and moving to Hoboken, N.J.; in the meantime, he kept some of his things with his mother in Mount Laurel, N.J. Before moving his guns between the states, he looked up New Jersey’s gun laws, and even called the New Jersey State Police for guidance.

On one trip to pick things up in Mount Laurel, Aitken vented to his mother about some problems he was having with his ex-wife. When he left, his mother was sufficiently worried about his mental health that she called 911, but she hung up without saying anything. The police showed up anyway, talked to Aitken’s mother, and called his cell phone. “They said I’d be taken into custody, not arrested. What’s the difference?” Aitken remembers. “I said, ‘Whatever, I’ll come back.’”

After questioning him, the police asked to search his car. They found — amongst his other possessions — three handguns. Aitken says that initially, the police offered to let him keep the guns in his father’s safe, but they wouldn’t fit. Then Aitken, like Revell, was arrested for carrying a gun without a permit. Never mind an exemption to New Jersey law that applies when an individual moves guns from one residence to another.

At trial, there was a debate over whether Aitken had in fact been moving. But when it came time to give the jury instructions, the judge refused to let them consider the question; the only issue, he said, was whether Aitken had the guns in the car. The jury resisted, sending the judge several requests for information about the issue. When he refused to answer the first two, they made sure the third expressed their frustration:

Why did you make us aware at the start of the trial that the law allows a person to carry a weapon if the person is moving or going to a shooting range, and during the trial both the defense and prosecution presented testimony as to whether or not the defendant was in the process of moving, and then in your charge for us to deliberate we are not permitted to take into consideration whether or not we believe the defendant was moving?

The judge later claimed it “wasn’t relevant” whether he was moving, and that there was “no evidence” anyway — when in fact it was relevant, and the strength of the evidence is a question of fact, which juries decide.

With its hands tied, the jury found Aitken guilty in August 2010. His prison term: seven years. He stayed there until Gov. Chris Christie commuted his sentence in December. Now, he’s trying to have the conviction expunged from his record.

Clearly, not all of Aitken’s problems stem from the Graves Act; the jury should have been able to consider the moving exemption. But even if he wasn’t moving, should the government have thrown him in prison for seven years — for transporting unloaded, legally owned guns in the trunk of his car? It costs about $20,000 to keep someone in prison for a year, and that’s not even counting the tax revenue that’s lost from his being out of the workforce (and then, as a felon, making less thereafter). Wouldn’t a small fine send the message that this behavior is illegal?

Obviously, these cases demonstrate that the law isn’t working. It’s taken longer than it should have, but some members of the New Jersey state government are trying to fix the problem.

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There’s Assemblyman Jon Bramnick, for example, a Republican who co-sponsored the 2008 change to the law. “I’ve got serious problems about how the penalties have been interpreted,” he says. He notes that someone who legally owns a gun in another state, and inadvertently brings it into New Jersey, can face serious prison time. “I’ve spoken to a number of defense attorneys, and the bottom line is that it’s so difficult to keep someone out of jail, even someone with a clean record,” he says.

Bramnick says it’s difficult to draft a law that will give leniency in sympathetic cases, while still being tough on people who keep guns with them for illegal purposes. However, he says that if it’s drafted properly, such a law will win the support of his mostly Democratic peers.

#ad# State senator Jeff Van Drew, a Democrat who’s working on several pieces of legislation related to guns, is also optimistic. He points out that the law’s fuzzy language can ensnare even New Jersey residents with gun-purchase permits — if they stop for lunch, or to visit a family member, on the way to the shooting range, it’s not clear that they fall under the current exemptions. “Someone who doesn’t have any evil intention and is not involved in anything inappropriate should not be at the mercy of an onerous law like this,” he says. He concedes, however, that “any issue dealing with guns, and especially pistols, in New Jersey is a challenge.”

Assemblyman Michael Patrick Carroll is working on a bill that would punish minor gun crimes with civil penalties (essentially a light fine), but he’s not holding his breath. “I’ve been here 16 years, and we’ve never done anything right,” he says. His biggest hopes are for the federal courts to find that New Jersey’s gun laws run afoul of the Second Amendment, or for Republicans to take over the state government.

There is also talk of expanding the federal law that protects the transportation of guns between states, the Firearm Owners Protection Act, so that it would unambiguously cover cases such as Revell’s. NRA spokeswoman Rachel Parsons says the organization is pursuing the matter, but was unable to provide specifics.

It shouldn’t take federal oversight, however, to prevent states from locking up innocent people. The ball is in the state government’s court. Let’s hope they do the right thing with it.

— Robert VerBruggen, a National Review associate editor, runs the Phi Beta Cons blog.

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