Gun Lawyer Episode 28 – Transcript
gun, lawyer, gary, doc holliday, appeal, case, improvised, firearms, shotgun, improvised weapons, municipal court, evan, judge, gun rights, defendant, state, holsters, winds, government, prosecutor
Evan Nappen, Speaker 3
Evan Nappen 00:18
I’m Evan Nappen, and welcome to Gun Lawyer. Today I want to tell you about a case that I had a number of years ago, but, man, it was just insane, and it really showed me the importance of why you need to have a good judge in your case. It just hammered home how clients at times won’t tell you the whole story and how things just get all crazy. This client, we’ll call him Mr. Gary just for privacy reasons, even though that wasn’t his name, but the case was an actual case. You see Mr. Gary was at work. He told me that he brought his ammunition for the target range to work, and he brought the box of ammo into his office. He didn’t bring any gun or anything, but nonetheless, people in the office flipped out that he would have ammo and this and that. He ended up getting criminally charged with possession of hollow nose ammunition, which in New Jersey is felony level offense, and it carries up to 18 months in State Prison if you possess hollow nose ammo, unless you are within certain exemptions.
Evan Nappen 01:51
He was charged with terroristic threats. Terroristic threats. So, I’m talking to him, and I immediately feel it’s one of those persecute the responsible gun owner type deal. They don’t understand guns, and they are overreacting, etc. I am happy to represent folks like that. The guy just wanted to bring his ammo, go to the target range and shoot afterwards. I get it. Well, the charges were indictable, meaning they were felony level charges. Terroristic threats are a third degree. Looking at up to five years in State Prison. The hollow nose ammunition is 18 months. I was able to convince the prosecutor that he was actually legal for hollow nose because of the exemption, and he was eventually going to the target range. Mr. Gary could fit into that, and that he never did anything that was actually threatening in any terroristic threatening way. Maybe there was friction between him and his fellow coworkers, but it did not to rise to that third-degree level.
Evan Nappen 02:59
After doing a significant amount of work in that area, the prosecutor downgraded Mr. Gary’s charges in which the prosecutor made them disorderly persons offenses. In New Jersey, that is the equivalent of minor misdemeanor. He dismissed the hollow nose bullet charge, and he downgraded the terroristic threats to harassment, which is a petty disorderly persons offense – one of the lowest level of offenses in Jersey. Your max jail exposure is 30 days. It is no longer a felony, and it is no longer a gun disqualifier. You will not lose your gun rights, unless it is domestic violence, which is wasn’t. So, I got him in a safe zone. Out of felony land and major state prison and very happy to get it down to municipal court and just a little PDP. But he still believed that he was not guilty of even harassment. I had no problem with that. So, he wanted to try the case and that is his right. I am happy to try it.
Evan Nappen 04:22
So, we tried the case. Now, the trial took place in a municipal court in front of a municipal court judge. No jury because you don’t have a right to jury unless you’re facing over six months in jail. He was not. The max was 30 days if he got any jail at all. The state presents their case. When the state finished presenting their case of the employees complaining about Mr. Gary and why they felt they were harassed by him, the state rested. I realized right then and there, without a doubt, that the state had failed to make their prima facie. They failed to meet their proofs. Because one of the things that the state has to do when they prosecute a case is they have to ID the defendant. They have to identify who it is. Part of the proof is the identification, and the prosecutor here failed at any time to do the classic, “Do you see Mr. Gary here? Then they say, “Yes, he’s the guy next to counsel with the bow tie” or whatever. Then the prosecutor says, “Let the record reflect that the witness has identified the defendant as the perpetrator,” etc. If you do not do an identification and if the state fails to identify, then they failed in their obligation under the Constitution to prove each and every element beyond a reasonable doubt. You have got to have an identification done. They did not do it. It is fundamental. It was an absolutely fundamental mistake they made.
Evan Nappen 06:20
After the State rested and was done, I moved to dismiss it because the State failed to identify the defendant, which is absolute classic criminal law 101. The judge, instead of dismissing it, which is what should have happened, said “Oh, well, I think it was enough. They talked about him. They did.” No, you have got to ID the defendant, and they didn’t. “Therefore, I’m finding him guilty, and I’m giving him a $100 fine.” I’m like, ah, it’s wrong. They should not have convicted him. Okay, but it’s a $100 fine on a most minor of offenses that will not affect his gun rights.
Evan Nappen 07:06
But, Mr. Gary, on hearing this verdict, flips out, like flips out, flips out and starts shouting religious stuff. The wrath of the Lord, and blah, blah, blah, and all of that. I’m like, Oh, my God, calm down, man. It’s a $100 fine. Oh, he’s just going nuts. And I said, relax, we can do an appeal. We will do an appeal. So, I said to him. If you want to appeal it, we can, and here’s what an appeal will cost. “Well, I don’t have any more money.” I said, Okay, well, you still have a right to an appeal. Now, as an attorney, I have to file the appeal on a criminal case, the notice of appeal, because it is the client’s right, and I need to make sure that the notice of appeal gets done. So that his right to appeal is preserved.
Evan Nappen 08:02
I called the public defender since he had no more money, and I said, he wants to appeal his conviction. After I file the notice, will you handle it for him. No problem. We will handle it for him. He can’t afford it, and we will handle it. So, you file the notice, and we’ll handle it.Okay, so I file the notice. Next thing, you know, I get a call from the public defender. “Oh, look, we’re really sorry. But since it’s only a fine, the public defender does not do appeals on just fines. There has to be an element of incarceration on these low-level offenses. So, we are not going to handle it.” I’m like, Oh, my God.
Evan Nappen 08:42
So now, I filed a notice and they said they would handle it. Now they won’t. He cannot afford to pay me, but I’m kind of stuck. I’m like, all right. I will do the appeal. I mean, what am I going to do? I’m in, and I’m stuck. Okay, not a problem. So, the appeal goes up to Superior Court because in New Jersey, the appeal doesn’t go directly to the appellate court. It goes to the Superior Court from municipal court. That is where there is a “trial de novo”, and the superior court judge will make a ruling on what occurred below. So, I’m like, okay, we are moving ahead on this. In the middle of doing this, and even though I’m feeling that I am getting screwed here, but okay. This guy files an ethics complaint against me. I’m like what? Again, it’s insane. For what? Taking his felonies down to a DP and ending with a $100 fine?
Evan Nappen 09:43
Nothing, there was nothing. It was idiotic. Well, in a way I said, “Good because now with this, I cannot continue to represent him obviously. Because I am unethical or something in his view. It is a conflict. So, I go to the judge at the Superior Court, and I moved to get removed from the case. Mr. Gary is arguing “No, no, I want Mr. Nappen to stay on the case.” And the judge was like, you filed an ethics complaint. Why do you want him now? I want him but I didn’t want. The judge says no. It is a conflict. You’re done. Mr. Nappen, you are recused. You are done. I’m like thanks. I am out of this case. I think okay, I’m done with this.
Evan Nappen 10:24
The way an ethics complaint works in New Jersey, it goes right to a review, a fast review where they immediately rejected it. Saying, this guy should be giving you a prize for what you did for him. They could not believe that I like got all these charges downgraded. “You did nothing wrong.” They just tossed it out without even going any further because there was nothing to it. Outrageous. But I guess it did a job because it got me out of the appeal. I figured, okay, it’s another sad story, but we’ll move on.
Evan Nappen 10:53
Well, a couple of months later, the police came to my office. They know me in the town. “We have an order from the judge from Superior Court on your Mr. Gary’s case.” I’m like, what, why are you coming to me? What do you mean? “The judge has ordered protection, police protection for everyone associated with this case. After he was convicted again in Superior Court, he went absolutely crazy making threats. And he’s not allowed back in the court. The judge, I think, held him in contempt even, and the judge ordered protection for everybody, including you and the prosecutor in this case. I’m like, Oh, my God. Okay. Well, I said, “Look I appreciate it. But trust me, I can take care of myself if I need to. But thank you for this.” Oh, do you believe this thing.
Evan Nappen 11:52
At some point, I get a call from Mr. Gary. He calls the office, and yes, we’re done. What do you want? He goes “Well, I’m calling you because I want you to know that I killed my brother.” What? You killed your brother? Why are you telling me that? “Well, I am in a mental institution right now and that’s why.” I said “leave me alone. You are in an institution, and we are done with the case. He’s telling me that he killed his brother. I got an order of protection against him. I don’t want anything to do with this guy. It’s insane.
Evan Nappen 12:22
So, he brings his own pro se appeal to the Appellate Division now, and he figures that he is going to keep me in the loop even though I do not want to know anything about it. He sends me a copy of his brief. I could not believe his brief. I am not kidding. His brief was 30 pages of absolute nonsense, in which, and I’m not kidding now, every line going down every page was a different color. It went red, blue, green, orange, purple, back to red, blue, green, orange, purple and back in every single line, a different color. Thirty pages of a box of Crayola crayons, when you flip the pages. I could not believe it. It made no sense. It was pure insanity. There was no rational way to read it at all, this brief from Mr. Gary. And I’m like, Oh, no. I am like just leave me alone. But no, he served me with it, too. So, I could see I guess how you are supposed to do a brief? Hmm.
Evan Nappen 13:51
Here is the deal. The appellate court now has to make their decision, and they do. They send me notice of their decision. What they decided was as follows. Some clerk at the Appellate Division, some smart law clerk there, decided to ignore the pro se multicolored brief of the defendant, Mr. Gary, and instead actually read the transcript from the original trial. The judges agreed on appeal that the judge in the Municipal Court was absolutely wrong and should have dismissed state’s case. Not guilty finding for their failure to identify the defendant.
Evan Nappen 14:46
Folks, if the original judge had just done their job, had known the law and done what was correct, none of this would have happened. What a waste of time of police, Court, the judiciary, flipping every party out. All that insanity because the Municipal Court judge did not know how to do his job right. That is the true story of Mr. Gary and how crazy things can get when you’re a Gun Lawyer. When we come back, I got a real treat for you. I’m going to talk to you about homemade guns and improvised weapons. Cool stuff. See you when we come back.
Evan Nappen 15:35
For over 30 years, Attorney Evan Nappen has seen what rotten laws do to good people. That’s why he’s dedicated his life to fighting for the rights of America’s gun owners. A fearsome courtroom litigator, fighting for rights, justice, and freedom. An unrelenting gun rights spokesman tearing away at anti-gun propaganda to expose the truth. Author of six best-selling books on gun rights, including Nappen on Gun Law, the bright orange gun law Bible that sits atop the desk of virtually every lawyer, police chief, firearms dealer, and savvy gun owner. That’s what made Evan Nappen America’s Gun Lawyer. Gun laws are designed to make you a criminal. Don’t become the innocent victim of a vicious anti-gun legal system. This is the guy you want on your side. Keep his name and number in your wallet and hope you never have to use it. But if you live, work, or travel with a firearm, the deck is already stacked against you. You can find him on the web at EvanNappen.com or follow the link on the Gun Lawyer resource page. Evan Nappen –America’s Gun Lawyer.
Speaker 3 16:50
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcast.
Evan Nappen 17:05
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Evan Nappen 18:24
The other thing I want to mention important is how we can communicate here on Gun Lawyer. It is the way that we can help keep fellow gun owners from becoming what I call law-abiding criminals. Tell your friends to listen to Gun Lawyer radio. Have them subscribe to the podcast and visit our website at Gun.Lawyer. I’d really love for you to take a look at our Inner Circle on our website at Gun.Lawyer. Sign up for the Inner Circle. You will get the insight from me Evan Nappen. I’ll be giving you tricks and tips, insights and fun. Sign up. It’s free. Go to Gun.Lawyer. In other words, dot lawyers like dot com, only it is dot lawyer. So, it is www.gun.lawyer. Join our inner circle.
Evan Nappen 19:14
This helps me communicate with you and touch base to let you know what’s going on. Because big tech, they hate us. They don’t want us to get the word out. They try to suppress us as I am sure you know. This is a way around them. So, we can stay in touch and deal with these issues and help keep our responsible gun owners responsible and not turned into law-abiding criminals. We have big issues coming up. These executive orders by Biden are going to be hitting soon with his demand to do the review in 60 days and to get the Justice Department to promulgate laws by way of abusing the Administrative Code. We have really serious issues ahead.
Evan Nappen 19:55
The ATF director, who’s a horror show, David Chipman, is the former agent at Waco, and he was a top guy at Gifford Center. He’s a rabid anti-gunner with a background as ATF at Waco, Ruby Ridge, etc. Can you imagine this guy as head of ATF? It is just a horror show waiting to happen. He has put out lies about Waco, absolute lies. He said, helicopters being shot down with 50 BMG’s. This guy is horrible. You will hear more about him, and you will see we have got a fight on our hands. So anyway, please subscribe, join the Inner Circle and help me get the word out about Gun Lawyer podcast. It’s important, and I am depending on you.
Evan Nappen 20:52
I mentioned before that I want to tell you about homemade guns and improvised weapons. We’re dealing now with this whole ghost gun thing. There is a push by Biden in one of his executive orders to get regulatory efforts on so called “ghost guns”. In order for them to be sold or transferred, they need background checks. I do not even know how they are going to structure it. When they finally promulgate this thing, we will take a look, and I will be able to explain to you. It just doesn’t even make sense what he is saying to do but that should not surprise anybody.
Evan Nappen 21:29
When you get down to the basics, a ghost gun is a homemade firearm. Americans have been making firearms in their home since before the Revolution. We built our own guns, and under Federal law, you are allowed to build your own firearm. There are states that restrict it. Of course, New Jersey does because they restrict just about everything. But you’re allowed under Federal law. So, the question becomes, what is a homemade firearm in terms of its impact on our gun rights. Well, you need to be aware that some improvised firearms are prohibited.
Evan Nappen 22:11
For example, believe it or not, Vermont actually bans zip guns, whatever that means. In the 50s you know, the idea of a zip gun, a homemade gun, but they are not real specific on what a zip gun even is, but Vermont does ban sip guns. You have got to be careful with your state. But under Federal law, you can build your own firearm and because of that, no gun ban can ever be successful. I do not care what they ban or what law they pass, people can always build their own. One of the classic build your owns is called the Four Winds Shotgun. Go on the internet and look up Four Winds Shotgun. You will see it’s a slam bang shotgun made for basically 20 bucks in supplies at Home Depot. The Four Winds Shot Gun will fire a 12 gauge shell. One tube goes inside the other, and you pump it back like a trombone. Boom! When it hits, it goes off and fires the 12 gauge shell. Now I’m not recommending that you build these. I’m sure there is danger in it. But nonetheless, this is something out there that is readily available.
Evan Nappen 23:42
This idea of the Four Winds Shotgun is something that the United States government actually promoted when we were fighting in the Philippines. If you have ever seen the movie or read the book called “American Guerilla in the Philippines” by Ira Wolfert, they are based on the true story of Iliff David “Rich” Richardson, a US Navy Ensign. They talk about how we trained the resistance to build the slam bang shotgun or the Four Winds Shotgun. Why did they call it the Four Winds? Because after you fire it, you can instantly take it apart and throw the pieces to the four winds. That is why they called it that. But the slam bang shotgun itself is a classic and it was actually used by the resistance in the Philippines. Our guys trained the Filipinos to make them. The idea in war was to shoot the enemy in the back even with the slam bang shotgun and then take their good gun from them. Take their armaments. Blow them away with your improvised shotgun and take their good guns. That was the theory militarily that we utilized in the Philippines.
Evan Nappen 24:58
But the idea of making a slam bang shotgun when this guy came home from the war, he actually made a commercial version of this, and you can find commercially made slam bang shotguns. He called it the Guerilla Gun. It was not a financial success, but they are very collectible. They are slam bang commercially made shotguns in the US by the guy that did this for the insurgents and the resistance in the Philippines. So, the history of improvised firearms is there. The history of it being readily available.
Evan Nappen 25:39
So much so that our own government in the late 60s produced what are commonly called the Black Books (Improvised Munitions Black Books). Now, some of you may have heard of an Anarchist Cookbook and okay, it’s fun reading. But you know, the Anarchist Cookbook has a lot of bad info in there. A lot of stuff that is dangerous and screwy. Even though it’s so famous, but you see the Black Books, as distinguished from the Anarchist Cookbook, the Black Books were actually done by the Frankfort Arsenal, the US government. These are government printed, government developed, improvised weapons. This information is not copyrighted because it was done by the government.
Evan Nappen 26:31
There are sellers who sell these on the internet. Delta Press is one of them. They have the Black Books, Volume One, Two and Three right there. They are reprints of the Frankfurt Arsenal’s improvised weapons by the US government. That information is fascinating because it talks about every type of improvised weapon. The idea was to get our forces with the locals to be able to make improvised weapons. There are all kinds of stuff in there. Improvised explosives, improvised everything, but it’s also improvised firearms. They take it a step further than even the Four Winds and slam bangs. Fascinating reading, again, put out by the US government.
Evan Nappen 27:15
One of the things in that book, I believe it was in Book Three, was how to make a 12-gauge shotgun out of bamboo. You do not even need pipes. They actually made it with bamboo that you wrapped with wire and how it works. It is fascinating, improvised weapons. Tell me how individuals who can make their own guns at any time with common materials, no gun ban is ever going to work. Because we can always make our own.
Evan Nappen 27:42
So, this theory and this understanding I have had for many, many years. Way back in my college days, I’ll tell you an interesting little story. I was a writer for the newspaper in college, and I may reveal a secret right now that many people do not know even to this day. They may not know. But we had a college newspaper at Monmouth University. There was a writer for the paper whose name was Doc Holiday. In addition to Doc Holiday, there was another guy who wrote called Evan Nappen, and he was president of the Student Government, too. Evan Nappen would write articles and Doc Holliday would write articles. Doc was a real conservative, and even back then putting out conservative ideas on a college campus was challenging, but it was still legal. I mean, it wasn’t canceled culture. At least they tried to make believe they respected freedom of speech, right, you could do this.
Evan Nappen 28:44
What we did with the newspaper is Doc Holliday would write these outrageous conservative columns, and the President of the Student Government, Evan Nappen would write criticizing Doc Holliday for his articles. So, I was constantly criticizing him, and he was criticizing me. He was putting out his right-wing ideology, and as Student Government President, I was attacking him. We had a grand old time going at each other. Everyone knew that I was not Doc Holliday, right? Yeah, right. Because I was and that’s how it worked.
Evan Nappen 29:19
So, Doc was great. And man, people could not wait to get the student newspaper just to see what outrageous stuff Doc Holliday was going to say. Any of my college buddies know this for a fact. Doc Holliday is legend. But one of the things Doc Holliday did, and I will never forget is he took a page from the Frankfort Arsenal Black Book on how to make a 9 mm pistol, improvised out of pipe, wood, and a nail. We just took that government issued page, reprinted it in the newspaper with Doc Holiday’s byline “The Best Argument Against Gun Control.” There to the whole college was how to build a 9mm, improvised by Doc. Well, the police were notified at the university, and they were not really thrilled with what Doc did, but they all said, guess what? Doc has a right to do this. Even though I am sure they wanted to throw me out, they couldn’t because of Freedom of Speech and my First Amendment rights were good. Of course, they were not even sure who Doc Holliday was, but it caused quite a ruckus.
Evan Nappen 30:38
It is still the best argument. So that argument is still standing today. It still exists. So, whatever they try to do, they are never going to end it. Improvised firearms are there. They have been used successfully militarily. They have been all through the ages, people will find a way. So, going down the path and going after ghost guns and homemade firearms is futile, futile. Just another effort to turn honest citizens into criminals.
Evan Nappen 31:16
This is Evan Nappen, reminding you that gun laws do not protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 31:24
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.