Episode 164-NJ Makes It Easier to Prosecute Gun Owners

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Gun Lawyer Episode 164

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Gun Lawyer — Episode 164 Transcript

SUMMARY KEYWORDS

new jersey, firearms, gun, law, culpability, gun owners, marijuana, carry, knowingly, great, prosecute, regulatory provisions, disregard, terms, reckless, conduct, exemption, book, prohibited, place

SPEAKERS

Evan Nappen, Speaker 3

Evan Nappen 00:00

Hi. I’m Evan Nappen, and welcome to Gun Lawyer. Well, I have some breaking news about a bill that’s halfway through the legislature. This bill is designed to make it easier to prosecute gun owners throughout New Jersey, and I’m going to explain in detail how this works. It’s done in a sneaky way. It’s promoted, of course, without mentioning that that’s actually what it does – big surprise. If you don’t understand how criminal law works, you might not understand why this does what I’m going to explain to you. But after I’m done explaining it to you, I’m sure you’ll see the light as well. Now, this is something that we have to be very concerned with. It is why we constantly have to be vigilant, especially in New Jersey, as they attempt in multiple ways to disenfranchise us of our Second Amendment rights, turn us into criminals, and make it easier to cost law-abiding citizens their rights and their freedom and destroy their lives using criminal law. It’s what New Jersey does.

Evan Nappen 01:38

So, what we have here is, is a bill that has been put forward, and you can see it as Senate Bill 3085. (https://legiscan.com/NJ/text/S3085/2022) What this bill purports to do and says in the synopsis is, “Expands culpability requirements for firearms trafficking offenses and violations of regulatory provisions relating to firearms.” What does that mean in English? Let me tell you what it means in English, “expands culpability requirements”. Now, what is a culpability requirement? (N.J.S. 2C:2-2. General requirements of culpability) Why is it so important? What does that have to do with anything? Well, you see, folks, “culpability requirement” is the fundamental element in a criminal prosecution. It determines what standard and burden of proof the prosecutor is going to have to show in terms of your mens rea, or your mental state, your mental state. This is very important, and it’s critical anytime you deal with a criminal charge. So, let me explain it further.

Evan Nappen 03:12

When someone’s charged with a criminal charge, the standard of culpability is normally set at either “purposely”, so that the criminal act had to have been done purposely, or at a lower level than purposely but still requiring intent is “knowingly”. Purposely, in New Jersey, means a person acts with purpose, with respect to the nature of his conduct as a result thereof if it is his conscious object to engage in the conduct, okay, to cause the result. It’s a requirement that you meant to do it. You did it on purpose. I think we can all wrap our heads around that. When you commit a crime purposely, when you intentionally commit that crime with purpose. Fair enough. The level below purposely is called Page – 2 – of 8

“knowingly”. So, you can be convicted, and many crimes require the culpability standard of knowingly. The prosecutor there would have to prove that you acted “knowingly” with respect to the nature of the conduct or with the attendant circumstances that you were aware of your conduct is of that nature, or that such circumstances exist, or that there’s a high probability of their existence. A person acts “knowingly” with respect to a result of the conduct if he is aware that it is practically certain that his conduct will cause such a result. “Knowing”, “with knowledge” or equivalent terms have the same meaning in the statutes.

Evan Nappen 05:08

Normally in criminal cases we’re dealing with purposely or knowingly for the commission of the crime. But here, New Jersey is lowering the culpability standard to “recklessly”. Recklessly does not require purpose or knowledge. It doesn’t require that knowingly, purposely. No. Now we’re talking “recklessly”, and recklessly is lesser of a culpability requirement. And what it says is, “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.” Okay, so it’s a conscious disregard of the risk. The risk must be of such nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Recklessness”, “with recklessness” or equivalent terms have the same meaning. So, that “reasonable person” is going to be the jury. The jury is looking at it after the fact, as to whether there was a “conscious disregard” of a risk that the jury feels was unjustifiable in terms of being reasonable. And now you no longer need to have “purposely” done it or “knowingly” done it. This sets that standard lower.

Evan Nappen 07:03

And what New Jersey has done in this bill, they are putting forward in what we call the “penalty provisions”, but it speaks to what happens in terms of violation of the regulatory provisions relating to firearms and false representation in applications. It says here that any person who “knowingly”, which was the old standard and that’s still there, or “recklessly”, now they add recklessly, so they lower that culpability standard. A person who recklessly violates the regulatory provisions, that’s the Administrative Code or even state statutes, if you violate any of the regulatory provisions related to manufacturing or wholesaling of firearms, retailing of firearms, this affects all gun dealers, and permits to purchase firearms, so, now it applies to your Permit to Purchase and therefore to transfers and not following the law for utilizing those permits, Permits to Carry firearms, now it applies to your carry permits and what’s required under your license, and licenses to obtain machine gun or assault firearm or incendiary or tracer ammo. Even that’s included. So, all the laws regarding these subjects now. If you violate the regulations “recklessly”, no longer is the culpability standard at that higher “knowingly”, but rather “recklessly”, if it’s done recklessly, where an allegation can be made that there was a conscious disregard of that risk, that that jury determines that, you can now be prosecuted.

Evan Nappen 09:10

What if you leave your gun on your workbench and somehow it gets accessed by somebody else in your household? Or what if you accidentally leave it at the range? You should have known, but you disregarded that risk. You left your gun at the range. Now somebody has accessed it at the range. I’ve Page – 3 – of 8

seen GOFUs, you know, what we call the Gun Owner Fuck Ups, and I’ll have a good one at the end of the show as I do every show. They accidentally leave it on top of the car when they’re packing the car and forget that they left it there. Or it falls out of the vehicle, or falls off the tailgate, or out of the pickup truck, etc. Hey, now you have a “reckless” conduct charge over the regulatory provisions by lowering the culpability standard. What if you leave it in the bathroom, as a GOFU that we’ve talked about? And now that got accessed? Well, now you have been “reckless” for the conduct of leaving it in the bathroom in violation of the regulatory provisions. What if you feel like you’re going to be a good guy and loan it to a friend? Well, you’re not allowed to loan a gun in Jersey, but you didn’t realize that. You loaned it to a friend and that’s reckless. It could be knowingly or now reckless, because your friend thought you gave him permission when you didn’t. But then if something happens, it’s bad in any of these situations, worse than even the act itself with them gaining that firearm. Now you can be prosecuted there. What if you leave your gun on a wall, you display your firearm on a wall. It’s legal to do that. But what if it can be seen through a window and someone breaks into your house because they saw the gun in the window? They take it and cause harm to others. Was that reckless? Was that a reckless disregard of a known risk? Because you left it in view. Even though it’s a third party thief who’s breaking in through your window and stealing that gun? Sure, they can argue that now that was reckless disregard of that risk, and you can now be prosecuted.

Evan Nappen 09:10

So, let me give you some examples. If you allowed, for example, your wife to use your gun in your home, and of course, that’s not a temporary transfer that’s allowed. If you allow that, you could say, hey, if you knowingly did that, then there could be an argument that you violated the transfer law. But what if you left it in a way where she accessed it, even though you didn’t actually give it to her, but you conscientiously disregarded the risk that she could access it? Now you can be charged with reckless over that access as well. Well, for example, here we are at Christmas and many gun owners don’t realize that air guns and BB guns are firearms in New Jersey. If you let your kid have a BB gun that you ordered from Amazon, which by the way they will ship the BB gun to you even though they’re really not supposed to under Jersey law, and you think it’s just a Daisy Red Ryder BB gun. Your kid has it. Next thing, you know, there’s a problem from that occurring. You allowed it there. You recklessly disregarded that risk, and you could face a problem here.

Evan Nappen 12:56

What if your daughter is out hunting, your young daughter’s hunting, and you know that there’s an exemption that allows it when under your direct supervision, but somehow, she manages not to be under your supervision for some period of time and something happens? There’s an issue, something, who knows. Next thing, you know, did you consciously disregard the risk that that would happen? You can just see on and on and on how this can be abused, how it will be utilized, how it will be capitalized upon by the anti-gun New Jersey prosecutors, judiciary, and law enforcement as this agenda is put forward here. And it applies even to ammo. I mean, you know, Tracer ammo is legal to possess in New Jersey, but it’s not legal to shoot in New Jersey. What if you accidentally fired tracer ammo, just by accident. It was legal for you to possess, but you start a fire. Or worse, who knows what. People get injured or anything from tracer. Well, hey, were you reckless there? Did you disregard a known risk with tracer? Because you’ll get prosecuted in the statute. Page – 4 – of 8

Evan Nappen 14:15

So, you can see the scenarios are just endless, endless, where New Jersey can now utilize this lower standard, this lower culpability level, and can attempt to arrest, prosecute, convict, and imprison gun owners at an even higher level than they do now. Then, of course, when those warrants issue for arrest, you get subjected to the Gun Owner Gulag, which is the no cash bail system. We’ve discussed that in past shows about how they try to hold you when you haven’t been proven guilty of anything. Hold you, pending the adjudication of your matter. It can be as long as trial, and you will not be able to get bail. New Jersey keeps stacking the deck, stacking the deck, against gun owners and the Second Amendment. Here is yet another attempt at that.

Evan Nappen 15:19

Yet, it doesn’t end there, folks. Additionally, they add in another section here and this is all supposed to be about “trafficking firearms”. This is not anything to do with arms trafficking. This is yet another agit prop, another attempt to utilize these words like gun violence. We all know it’s supposed to be criminal violence, but they need to focus it on the gun. So, you know, gun trafficking, right? Well, they just want to make anytime there’s a gun that is transferred, and if it’s not done properly, that’s gun trafficking. You know, we don’t believe in honest mistakes or anything like that. And of course, we need to prosecute fully. Here they want to add a condition, which is even worse for dealers who now run the risk if they sell or transfer or assign or otherwise dispose of firearms and the dealer knew, that’s currently the law, if you knew that the person was somehow prohibited, but now they want to add a standard if the dealer “should have known”. So, now they can go and say, well, you didn’t know but you should have known. They can push a second degree offense on dealers, up to 10 years in State Prison with a minimum mandatory period of incarceration. We’re talking about a minimum term here of 18 months, two years minimum if a dealer knew or should have known that person they sell, transfer, or dispose of firearm was disqualified. They want to make it even easier to prosecute a dealer who makes any such sale with some claim of “should have known”. Then they want to go after all the rest of us by lowering the culpability standards here in this bill to now include “reckless”, which is that “conscious disregard” standard, so often thought of really with civil actions where you might have negligence or recklessness. When you’re talking about criminal, talking about imprisonment, and the most severe penalties that our society can inflict on a person, now they’re lowering that especially for gun owners.

Evan Nappen 18:13

Of course, our great Association, The Association of New Jersey Rifle & Pistol Clubs is fighting this. They have a full-time paid lobbyist in Trenton, and they are vigorously trying to see if we can get these things changed, try to stop it. It was brought to my attention, and it is really critical that their work be supported by you. Without you, how can we fight this? You need to join anjrpc.org, anjrpc.org. They have a great newsletter, and you’ll get the email blasts, the alerts, you need to be part of the solution here not part of the problem. These are the kinds of fights that we deal with all the time in Jersey and ANJRPC is at the forefront defending our rights. So, please join The Association of New Jersey Rifle & Pistol Clubs.

Evan Nappen 19:19

Additionally, we are so proud to be sponsored by WeShoot. WeShoot is an indoor pistol range in Lakewood, New Jersey, and it is a top of the line range. It is my range that I go to. It’s where I got my Page – 5 – of 8

certificate qualification and training for my carry. It’s where my brother got his, where my son got his, and anybody that I know goes to WeShoot they love it. They treat everybody like family. It is super friendly, inviting, and a great place to go. Bring your spouse, your boyfriend or girlfriend. It’s a great night out. They have a clean and premier range. They have great guns that you can rent and try. They have excellent training programs not just for getting your carry but for all types of training that you may wish to improve your skills and your knowledge. And what a great staff! I’m not kidding, a great staff, great people. WeShoot in Lakewood, New Jersey. They’re so easy to get to, right off the parkway, super easy. Monmouth County, Ocean County, anywhere in Central Jersey. There’s your indoor range. And, you know, we have less and less ranges. One of the other ranges nearby just recently closed to the public. These ranges are a resource, an important resource for us, so we can shoot. What good is it if we can’t shoot? Give WeShoot your business. Check out WeShoot at weshootusa.com.

Evan Nappen 21:01

And of course, it is indispensable that you have my book, which is New Jersey Gun Law. It is the Bible of New Jersey gun law. It is the 25th Anniversary Edition, and I’m really proud of it. I know many of you have the book. Many of you have told me that the number one thing you never do with the book is lend it to someone, because you’ll never get it back. However, with the holidays here, it does make a great gift. Because whoever you give it to is going to love it. It’s 120 topics, all question and answer, all explained in an easy to read format. So that you can try to stay free in New Jersey and exercise your Second Amendment rights without getting into trouble. It’s the resource. It’s the go to resource. You can get your copy at EvanNappen.com. Go right to my website, EvanNappen.com, and you’ll see the big orange book. Click on it to have a copy in a matter of days. You’ll be glad you did. When you get the book, scan the front cover, that QR code, because that lets you subscribe for free, 100% free, to my subscriber portal where you will get free updates. You get access to the archive for all the free updates. I send out email alerts on all types of topics. As soon as the laws change, court decisions, attorney general opinions, there’s going to be new things coming out shortly, let me tell you those important things that you’ll want to know, coming very, very soon. So, make sure you subscribe. Make sure you’re part of that free service that I offer to keep you informed and to keep your book updated.

Evan Nappen 22:53

We have an interesting article that I found. t’s not something that we normally care about necessarily as gun owners, but it does affect many people that are gun owners. And it’s about marijuana. That’s right. Marijuana that is now legal in New Jersey, by way of New Jersey law, but not legal under federal law. So, that makes New Jersey one of the largest drug dealers in America, how nice. But look, I don’t care about that topic, that’s neither here nor there. What I do care about is how it affects gun rights and gun owners. The federal law still has that prohibition which says you can’t be a user of marijuana and have a gun or get a gun. Now, interestingly, Hunter Biden is challenging his gun charges raising the Constitutionality of that very law. I honestly hope Hunter Biden wins, and I hope he kills the gun law. Nothing’s better than killing a gun law than when you’re Hunter Biden and all your father does is promote gun laws. But regardless of whether he’s successful, I did find out something interesting that I want to share with you. Page – 6 – of 8

Evan Nappen 24:16

Although I did coin the term “Bang or Bong, you can’t have both” and that still applies today, even in New Jersey, where marijuana is legal, I found an interesting article on a website called Marijuana Movement. It was very well written, extremely well written by a fella named Kyle Jaeger. It pointed out something really fascinating. Medical marijuana growers and caregivers are not prohibited under the “Bang or Bong” rule. So, if you have a weed card in New Jersey, a medical marijuana card, that is prima facia bans you federally. They say, hey you have a weed card, forget it. You can’t have a gun because you’re a user. But if you’re a caregiver, you can, under this memo that they uncovered from the FBI that caregivers should not be prohibited because they’re not users, and also growers can’t because they’re not necessarily users. So, you can grow it, and you can give it to others. But if you use it yourself, well, then you are prohibited under federal law. You can check that article out. (https://www.marijuanamoment.net/medical-marijuana-growers-and-caregivers-can-own-guns-but-patients-cant-fbi-says-in-little-noticed-memo/) It goes into pretty clear explanations. It’s pretty well written and I give it credit. It makes it clear that unlawful users are prohibited, and now the user card, the Feds view that prime aphasia as a problem. Additionally, if you’ve had a marijuana conviction within the last 12 months, they view that as making you a user. If you’ve given up your card, your weed card, then you’re going to have to let a year go by from giving it up to not have that act anymore as a disqualifier, going to what may be a user. But apparently, caregivers, growers and providers, they’re not prohibited under the federal prohibition. So, that is an interesting distinction. If you’re a caregiver, grower, or provider for another party, you would not be disqualified unless they can establish “use” and that’s what the FBI says in this memo.

Evan Nappen 26:53

Beware of certain other things can still jam you up with marijuana like arrests for drug paraphernalia, although that’s not automatic, if you have drug paraphernalia. But if they can demonstrate use from that, then that could jam you up, and you could lose your gun rights as well. If a drug sniffing dog has tapped you as possibly having controlled dangerous substance, the fact that you got a hit by a dog doesn’t necessarily mean that you’re out of it. But if they catch you and the dog actually found marijuana, then, of course, that can be a problem. All this is out of this 2019 memo that they point out. Now there’s been developments in the “Bang or Bong, you can’t have both” world. This includes the U.S. District Court in the Western District of Oklahoma. It recently ruled that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional. Also, in the U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing guns is unconstitutional. That Judge expanded it to the sale and transfer of guns. And guess who that’s going to help out? Yep. Good old Hunter Biden, right there. Yeah, I’m sure he’s going to utilize that, at least as some legal precedent to help argue his way. So, there is progress on expansion of gun rights. The feds apparently need to get with the program here and remove the gun disqualifier. But, as much as the left loves marijuana, they hate guns. So, this is a tough one for them to wrap their head around. But I’ll tell you what, you marijuana lefties, I’m willing to trade it off. I’m willing to trade it off. Restore the gun rights and have your weed. Just don’t let it affect gun rights. Maybe you feel the same way. Maybe you don’t. But this is an ongoing issue, especially in a state that has legalized marijuana like New Jersey. Page – 7 – of 8

Evan Nappen 29:11

I’ve gotten some great letters, and here’s one of them right now. I love getting the ask Evan letters. This one is from Dean, and Dean says that he is a U.S. Law Shield Member, a lifetime NRA member, NJ2AS and ANJRPC. Great. I’m really glad he’s a member. He’s doing his part in joining these organizations, and he’s out there helping to make a difference. And he has a question that says, what if you have a significant other and you’re not married, and you visit their home, which is not your residence, and stay overnight. He’s wondering about two scenarios. Number one, they give you permission to bring your firearm into their home, your handgun. Or what if they don’t give you permission to bring the firearm into your home?

Evan Nappen 30:16

So, what we’re dealing with here is a sensitive place prohibition on private property. If you recall that sensitive place prohibition is divided. If the private property is open to the public, then you do not need permission. Okay, it’s open to the public. But if it’s not open to the public, then you do need permission. So, here visiting his significant other’s home, and even staying overnight, arguably, he needs permission. In the first scenario, he says they give you permission. All right. So, you now have permission. The next question is, can it be stored bedside, assuming no young children when you stay over? Can you store it next to your bed in another person’s home, who has given you permission to come into the home with your gun? Here’s where you’re going to run into some complications. You’re allowed to carry your gun in New Jersey concealed in a holster on your person. Now, unless you’re going to sleep next to this person with your gun concealed on your person, you’re no longer going to be concealing it on your person on private property. Now, what has to take place is, is there an exemption that allows you for possession in some other person’s home, if you’re not carrying it under the mandate of New Jersey’s crazy carry law that requires you to have it concealed in a holster on your person? The problem is there isn’t. There isn’t an exemption that allows you to do that. So, being that this is a sensitive place, arguably private property, and even though you have permission, you’re going to have to resort to the locking it up and securing it standards for your vehicle. Even though you’re at the house and have permission to be there, if you’re going to sleep over, if you’re going to not have it concealed on your person anymore, then you better lock it up and secure it in your vehicle properly, as you do on any other property of a sensitive place.

Evan Nappen 32:41

He says, can you store it in a small lockbox or safe or in a drawer? And that’s not an exemption for sensitive place. That exemption only applies in terms of transportation. It applies in terms of sensitive place. It’s not going to fly here with this not being your house, not your home. Now, normally, we’d have to lock it up in such a way if they are young children so they can’t access it. But that’s not going to get you out from under here if you’re outside the parameters of the carry killer law says. So, be careful. Be very aware of this distinction. Then he asks, are there any distinctions about being loaded or unloaded? There aren’t any distinctions because of the carry, it’s not distinguished. Now, when you secure it, it does need to be unloaded in that container. You want to have it locked and out of view in your car, and it has to be unloaded. But having it unloaded in your significant other’s house isn’t going to change your ability to have it possessed in the house. You’re just not going to have the ability to do it because there is no exemption in the law and sensitive place law isn’t going to apply. Then he says, well, similar question based on leaving it in the locked vehicle, either overnight while there or such. I’d say that’s the Page – 8 – of 8

only way because that puts you squarely within this sensitive place requirement for parking etc. and being there. Then he says, what if one should leave the property? Well, if you leave the property, then you can resume your carry concealed and carry within the parameters of your permit. Once you leave the property, you’re allowed to reload and put it back and carry it loaded and then you can protect yourself and your significant other. Good question, and it does show you how bizarre the circumstances can get and are treacherous. It can be trying to navigate New Jersey’s insane matrix. Thanks for a great question.

Evan Nappen 34:53

I have another one in a similar vein, but with a different scenario. This is from Woody. Woody says, Hello Evan and thanks for all you do for all this on a daily basis. I work in a hospital environment and at times have to park in or about the hospital parking lot. According to N.J.S.A. 2C:58-4.6(c), I believe I am able to carry into the parking area, unload and properly store my firearm in a locked storage safe in my car, and go about my business. Can you verify this? The answer is, yes, that’s exactly what you do. Because hospitals are sensitive places, you have to secure it. As we’ve discussed many times in the way that you pointed out, Woody, by securing it in that manner, you are not in violation of the New Jersey carry sensitive place gun law. Now, there may be issues if your employer doesn’t want your having guns on the property, then you have that conflict. But that’s not one based in law. That one is based on your employee/employer relationship and such. So, different story, but the way you’ve laid out the scenario, Woody, you’re doing the right thing by securing it in that manner.

Evan Nappen 36:12

Hey, what’s the GOFU? What’s the GOFU of the week that we all want to know, and I’m going to tell you the GOFU because I’ve been seeing it in the practice. We keep seeing it over and over again, folks. New Jersey requires you to carry concealed. They don’t allow open carry unless you’re providing security and you have written permission from the person responsible for the security of the place, or you carry open under SORA (Security Officer Registration Act). Short of that, you can’t carry open. If you don’t cover your gun, it’s not concealed, and you are going to get in trouble. It is a GOFU, Gun Owner Fuck Up. Unfortunately, it’s been biting people in the behind recently, and I’ve been seeing case after case. You take your jacket off and you forget to put it on, or you throw it over your arm or your shoulder or you’re carrying it in your hand and your gun shows, now you are open carrying. You know you always put your jacket on before you leave the bathroom private stall. Otherwise, you are in violation. You cannot forget to keep your gun covered. You name the scenario, but not having your gun covered is a problem. I’m seeing more and more charges of individuals being charged with unjustifiable display. That’s a fourth degree felony level charge carrying up to 18 months in State Prison for your failure to carry it concealed on your person. So, please, folks, don’t do a GOFU and forget to cover your gun. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.

Speaker 3 38:17

Gun Lawyer is a CounterThink Media production. The music used in this broadcast was managed by Cosmo Music, New York, New York. Reach us by emailing Evan@gun.lawyer. The information and opinions in this broadcast do not constitute legal advice. Consult a licensed attorney in your state.

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About The Host

Evan Nappen, Esq.

Known as “America’s Gun Lawyer,” Evan Nappen is above all a tireless defender of justice. Author of eight bestselling books and countless articles on firearms, knives, and weapons history and the law, a certified Firearms Instructor, and avid weapons collector and historian with a vast collection that spans almost five decades — it’s no wonder he’s become the trusted, go-to expert for local, industry and national media outlets.

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