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Gun Lawyer Episode 82
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Gun Lawyer — Episode 82 Transcript
bill, gun owner, firearm, gun, law, bail, defendant, offense, release, new jersey, held, pretrial services, abiding citizen, charged, risk assessment, facing, pretrial detention, graves, lawyer, presumption
Evan Nappen, Speaker 3
Evan Nappen 00:18
Hello, I’m Evan Nappen, and welcome to Gun Lawyer. So, the gun owner Gulag Bill has raised its ugly head again in New Jersey. This is the most, in my opinion, the most serious threat currently facing gun owners in New Jersey. Although there’s plenty of threats, this bill is absolutely beyond bounds here. We have talked before about the gun owner Gulag bill, but that’s when it was in the house. It had been put forward and a lot of pressure was put, and it got killed so that it didn’t come back until now in the Senate. (New Jersey SB 513) It’s back, and it’s back in the most sneaky and disgusting legislative approach. I’m going to explain it because this is their trick. They are doing this because they know that most folks wouldn’t understand this bill, and I’m sure they’re even going to attempt to fool and mislead other legislators into how this bill works. But I’m telling you, this is serious stuff. It makes gun owners the equivalent of murderers under the law and treated as such, just for simple gun possession.
Evan Nappen 02:13
I’m talking simple possession, on a handgun, on a rifle, a shotgun, oh, and a dreaded assault firearm, anything that is categorized as Graves Act defense. In New Jersey, a Graves Act means there is a minimum mandatory period of parole ineligibility. Over the years, every simple gun offense has been turned into a Graves Act offense. There is a minimum mandatory time so that if you’re convicted, you face draconian minimum sentences. So, that’s always been bad enough. For example, in New Jersey, if you are charged with unlawful possession of a handgun, which can very easily happen, folks. I’m talking about a gun that is even cased, unloaded in your vehicle, and you are going to the range and get stopped. The officer says I don’t know if you are going to the range, and it’s up to you to prove it and arrests you. Then you are left to prove that you were going to the range and had your gun proper, which is actually how the law works in Jersey, by the way. You are facing 10 years in state prison with a minimum three and a half years, no chance of parole, if you get convicted of that offense. Every time you hear about anybody being arrested for possession of a handgun; they are facing a Graves Act offense. Same with possession of rifle or shotgun. It’s so easy to have a technical problem.
Evan Nappen 04:02
What this new Gulag Bill does, is it takes the bail reform law and makes it so that a gun owner that gets charged is held in jail until the matter is adjudicated. Meaning until the matter either goes to trial, which can be years, or if somebody pleads guilty to it, or some motion forces a dismissal. You have not been proven guilty of anything, but it doesn’t matter. Because you will sit for days and days, weeks and Page – 2 – of 6
weeks, months and months, or years until your matter is finally adjudicated. Let’s say you do all that. You know you’re righteous. You know you’re 100% within the law, but you’re being held this whole time in jail. Then you win, because you were right, and the jury finds you not guilty. Well, that’s great, except for all the time that you were locked up pending your matter. You’re not compensated for that. There is nothing you can do. Except stay imprisoned until you finally vindicate yourself. It is disgusting. And this draconian severity is put into the bail reform bill in the section that applies to murderers.
Evan Nappen 05:52
I’m going to explain to you how this works legally, because nobody really has taken the time to actually spell it out. What you have heard maybe already and seen, is true. Our State Association (ANJRPC) put out a great news release about this current threat. It is S513. Senate Bill 513. There was a hearing today for this bill, where they were going to push it and get it through. But luckily, because they don’t give us much time at all to deal with this. By the time we learn about it, it’s already getting scheduled. Luckily, this alert went out. At the current moment, the bill that I’m going to explain to you in a minute, has been held. Right now, today, the bill was held in committee. Now what it means is there is no action taken at this time. When the bill is held, it doesn’t mean that we won, and it doesn’t mean that it was defeated. It just means it’s in a holding pattern. It can be brought back at any time, and I expect that it will be. This is why we have to stay on this vigilantly. It is extremely important.
Evan Nappen 07:19
The reason for the holding of the bill is not expressed, but I personally believe it’s because of all the outcry from gun owners that made them at least take this action. But this threat is still there. This bill is sponsored, and you want to know the name of the sponsor. This bill is sponsored by (Senator) Joseph Cryan, District 20 (Union), a former sheriff and, of course, a Democrat. And there’s your combo right there. What he’s doing in this bill is just unbelievable. The bill itself, even as it’s structured right at the moment, the bill is something that is difficult to understand unless you understand how bail reform works in New Jersey. So, I want to explain that to you. The risk here is so great because there are so many minor infractions that can get somebody tripped up as an honest citizen.
Evan Nappen 08:50
I’ve been practicing gun law in New Jersey for 35 years, and I’ve seen the cases where honest citizens are charged. In any one of those cases that I’ve had in the past, if this bill becomes law, every one of those people would have been held until the matter was tried or adjudicated. We’re talking about folks that transport guns and are just stopping for food or fuel or going to the bathroom or medical treatment on the way to the range. Or transporting firearms back and forth from one’s place of business or to the gun store, hunting, fishing, target shooting, trapping, widows or widowers turning in guns of their deceased spouses to the police. Remember, this includes antique and black powder firearms as well. Even though these things are even exempted for how you’re supposed to be able to lawfully possess, those exemptions are a defense, and you can be forced to defend yourself.
Evan Nappen 10:06
New Jersey now has bail reform, and what the bail reform did was it got rid of the traditional bails that existed. If you were arrested, a judge would set a bail. Then you got a bondsman or put up the money yourself, and we could get you out. You would be out pending your legal matter, and you would be free Page – 3 – of 6
until such time as you are found guilty of the offence and sentenced to imprisonment. As long as you showed up, you remained unincarcerated. What bail reform did was set up a system that essentially eliminated bails as we know them. Instead, you’re either going to end up with a release on your own recognizance or some type of release, maybe with conditions that you have to report or something like that. Or you’re going to just be held, and that’s called a pretrial detention. This detention is what the state gets to move for. So, when you’re charged with an offense, if it’s done on a warrant, which all the gun charges, most of the time they are going to be done on a warrant, then the prosecutor gets a chance to evaluate the case and see if they want to move to hold you, to detain you pending your adjudication.
Evan Nappen 11:43
Instead of it being solely based on the traditional factors of flight risk, because bail essentially was supposed to be to ensure that you come back for your court dates, they are now able to look at this danger to public idea, this concept, even though you haven’t been convicted of anything. In so doing this is where the underpinnings for this idea of pretrial detention. To take people that are charged with crimes and hold them even when they haven’t been found guilty of anything and incarcerate them and hold them pending the charge based on some risk assessment to society and then also looking at their flight risk. This is the heart of the problem. So, already, gun owners have had problems here because they are charged with offenses of which every gun offense in Jersey is felony level, even though Jersey doesn’t call them felonies. They call them crimes. Now you’re faced with this pretrial detention issue where you are held for a couple of days for the risk assessment to be made. Then if the prosecutor wants to hold you, it can be another five days until you’re going to have a hearing on whether you’re going to be held for the rest of the time until your matter gets adjudicated. So, you’re being incarcerated right out of the bat for at least a couple days. Then held for possibly another five days and then possibly years. This is without any finding of guilt of anything. This is in complete contradiction to the presumption of innocence. What a joke! You are going to be held. Now they want to enhance this. Enhance this by making gun owners the equivalent of murderers. I’m going to explain to you the technique and how this Bill attempts to accomplish this in such a sneaky, disgusting way. I am going to explain that to you when we come back from the break.
Speaker 3 12:10
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 fierce 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, a 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. Page – 4 – of 6
Speaker 3 15:31
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcasts.
Evan Nappen 15:37
Before I get to this explanation that I know you’re all eager to hear, I want to thank you for being loyal listeners of Gun Lawyer. It gives me the chance to actually talk about these things to explain to have a moment where it’s not just sound bites, but actually explain to folks the nefarious and disgusting things that our legislators are trying to do to you and me and our Second Amendment rights. When you know and have this knowledge, it makes a big difference. And when you pay attention to these alerts and take action, it makes a big difference. That’s why this bill is currently being held. Now it’s still a threat, and we’ve got to kill it. That’s why a better understanding is that important.
Evan Nappen 16:35
So, how are they doing it? Well, here’s what the law says. This is actually the current law says as follows: When a motion for pretrial detention is filed, and I’m going to skip, pursuant to this, so this is the pretrial detention that the prosecutor files, there is a rebuttable presumption. So, it’s going to be presumed that the eligible defendant shall be detained, pending trial, because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the defendants appearance in court when required the protection of the safety of any other person or the community. So, the presumption here is just that. You’re going to be detained because the declaration is there’s no bail that could make you assured of coming back, which was the traditional bail purpose, and that the safety and protection of any other person or the community, safety of the community. Oh, in other words, what every anti-gunner says a gun owner is – a danger to the community. Guns are a danger to the community.
Evan Nappen 18:20
What are they doing about this? Well, they’re putting it into this bill, in this section, where the original party, which still is there, the original persons that they said, hey, there’s no way there should be any bail with a presumption against granting it. Those who have committed murder. So that’s number one. If you committed murder, you’re presumed to be unsafe or danger, and no bail is right for you. Okay, I can somewhat understand why that’s there, especially if someone’s a murderer. Then the second one that was already in the law was a person who committed a crime for which the defendant would be subjected to an ordinary or extended term of life imprisonment. I get it. If a defendant is facing life imprisonment, there may be more temptation for them to flee and arguably be desperate and a danger to society. So, maybe that’s okay.
Evan Nappen 19:39
But the third section, which is the new section, that’s the part that gets me and you. Because what the original bill did, the original bill now, this is an amended Senate Bill. The original bill just said anybody charged with a Graves Act firearm offense gets put on this same list with murderers and those facing life in prison. After the hue and cry from gun owners, they put an amended bill forward, and here’s what the amended bill says Page – 5 – of 6
Evan Nappen 20:22
It says: When a motion for pretrial detention is filed pursuant to this section, a pretrial services recommendation of no release is prima facie evidence to overcome the presumption of being released, as long as the court finds probable cause that defendant committed any crime for which it would be a Graves Act offense. So, in other words, the changes, hey, there’s going to be that pretrial services recommendation of either release or no release and that’s based on the risk assessment that they do. The risk assessment is a scale of one to five, as to your flight risk and your danger risk. Reading that, as I read this paragraph right at the beginning of the bill, I’m thinking well, it’s still not good, but at least now, it may, in fact, distinguish between law-abiding citizens that make an honest mistake and real dangerous criminals. Because the pretrial assessment and the recommendation of no release would have to be based on that assessment. A law-abiding citizen may have this very serious gun offense, because New Jersey makes all their gun offenses so serious, but at least all the other criteria that they’re going to look at when they make their evaluation will be fine for a law-abiding citizen. Whereas a criminal with a rap sheet, a record, a danger and violence and everything else, okay, they’re going to get the bad assessment, and they’re going to get a no release recommendation, as opposed to a release recommendation.
Evan Nappen 22:21
I’m thinking, okay, this is better than the old bill, which just had a blanket, hey, if you have a Graves Act offense, you are there with murderers and life sentence defendants. Now at least there’s a risk assessment that has to get done and that should separate, at least help to separate, and give us a basis to argue to get you out as a law-abiding citizen. Right? Sounds good. It’s better, but it’s still something I wish wasn’t happening. But hey, you know, this might be at least livable, and make it so that law-abiding citizens have a chance of being released and treated fairly.
Evan Nappen 23:16
Well, folks, so much for that belief. Because if you go down through the bill, down 1234, all these sections down to the final, absolute end, the absolute end of the bill. All the way, all the way, all the way down, you will find the following ending paragraph that is added law, hidden as far away from the paragraph that I just read you as they could possibly put it. Here’s what it says under f.
Evan Nappen 24:14
The release recommendation of the pretrial services program obtained using a risk assessment, under Section 11 Blah, blah, blah, that paragraph right there precedes what I’m going to read you next. That paragraph spells out that there’s to be that risk recommendation as part of the things the judge is going to be considering. Here is the award winning, sneaky, disgusting language of the very final paragraph.
Evan Nappen 24:50
(1) Pretrial Services shall recommend no release where a defendant has been charged with any crime for which the eligible defendant would be subject to a mandatory term of imprisonment pursuant to the Graves Act, for a crime involving the use or possession of a firearm. Page – 6 – of 6
Evan Nappen 25:13
There you have it, folks. At the very end of the bill, there is a mandate on the pretrial services evaluation folks to require a no release recommendation on every Graves Act firearms offense. It thereby nullifies, completely, the first paragraph I read you, that actually seemed reasonable. Because it ties the hands of pretrial services, mandating a no release recommendation on anyone charged with a firearm offense in New Jersey, regardless of whether you’re an honest, law-abiding citizen, who either made an honest mistake, or has to prove their innocence by way of exemptions, versus truly bad people committing bad acts in their use and possession of firearms. No distinguishing anymore.
Evan Nappen 26:31
So, we’re back to the original problem. Only done this time, in a way to conceal how it works, and I’m spreading the light of truth on it. You can pull this bill yourself. You can go to S513 right online. (https://www.njleg.state.nj.us/bill-search/2022/S513) and you can see what it says. The added language at the beginning and then the added language tucked in ever so sneakily, at the very end, that completely eviscerates and guts, any reasonableness that one might read from the first paragraph. Yeah, that is how Mr. Cryan’s bill is written. Now you know the effect that it will have, and why it must be stopped. This is a huge threat. It will mean imprisonment for gun owner after gun owner after gun owner without the due process of a presumption of innocence. Even a presumption of non-imprisonment goes away on gun owners. It’s a direct attack. See it for what it is.
Evan Nappen 28:00
We have to remain vigilant and fight this as vigorously as we have fought any other political legislative battle. It is extremely serious. I can tell you, having worked in this area as an attorney, I see the incredible damage. The incredible effect this is going to have – ruining law-abiding gun owners, their families, their careers, their hopes and dreams as you’re locked away for months and/or years without a finding of guilt. Unable to work, unable to provide for your family, unable to do any of those things, and then get convicted of nothing. Is that America? Is that what you thought America was? Because that isn’t what I thought America was. But that’s what this bill does.
Evan Nappen 29:04
This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 29:17
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.
Regularly called on by radio, television and online news media for his commentary and expertise on breaking news Evan has appeared countless shows including Fox News – Judge Jeanine, CNN – Lou Dobbs, Court TV, Real Talk on WOR, It’s Your Call with Lyn Doyle, Tom Gresham’s Gun Talk, and Cam & Company/NRA News.
As a creative arts consultant, he also lends his weapons law and historical expertise to an elite, discerning cadre of movie and television producers and directors, and novelists.
He also provides expert testimony and consultations for defense attorneys across America.
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