Gun Lawyer Episode 94
firearm, new jersey, gun, state, charged, rifle, home, law, meaning, police, gun laws, hollow, presumption, pistol, ammunition, lawyer, unlawful possession, assault, legal, definition
Evan Nappen, Speaker 3
Evan Nappen 00:00
Hi, I’m Evan Nappen, and welcome to Gun Lawyer. So, just this week, I got a case that came in, and it’s a case that I think a lot of us can learn from. It really illustrates the problems and makes it clear what we’re still dealing with in New Jersey. This case involves my client who possessed a firearm similar to a Troy A4. I don’t know if you’re familiar with the Troy A4, but the Troy A4 is lawfully sold in New Jersey pursuant to a State Police letter that evaluated it and said it was okay. You can see this State Police letter online. You can even go to the Troy website (https://techopsinternational.com/troy-a4-other-firearm/) where they talk about the gun being Jersey legal.
Evan Nappen 01:23
They have this letter as well and what the letter says is very interesting. Because it says that in reference to the request submitted to review the following firearm and determine legality. So, they looked at the Troy A4, and they said that it is designed and manufactured as a “firearm” as defined by the Federal Gun Control Act of 1968. They then proceed, they being the State Police, to determine where this firearm falls under New Jersey law. The letter first reviews the definition of firearm, which does include any gun which may be fired by means of a cartridge. Then they look at the definition of handgun, and they have underlined “originally designed or manufactured to be fired by the use of a single hand.” Then a rifle which is a firearm, and they underline here, “designed to be fired from the shoulder.” And then a sawed-off shotgun means a shotgun having a barrel less than 18 inches or a rifle having a barrel less than 16 inches.
Evan Nappen 02:41
So, they are looking at all the appropriate laws and that is correct. Then they look at Title 13, (Law and Public Safety) Chapter 54, which is the Admin Code, and then further at N.J.S. 2C:39-1 where the definition of assault firearm is found. As you may know, assault firearm is a complex five-part definition. The first part is a laundry list of about 67 named guns. Then in conjunction with that, there was an Attorney General opinion that in the Admin Code, they consolidate the opinion into the code, even though it’s not found in the statute. So, it got put into the Admin Code in that manner. But it does talk about “substantially identical”, and what does that mean. Then they put forward the 1996 Attorney General opinion that was codified into the Admin Code, not into law now, specifically statutes, but into the Code where it talks about semi-automatic rifles that have the ability to accept a detachable magazine and that has at least two of the following offending features. So, if you have a rifle and it Page – 2 – of 8
accepts a detachable magazine, then a claim can be made that it is substantially identical if it has two (2) of the following features. If it only has one, then it’s not prohibited, but if it has two or more, then it is. Those features are: a folding or telescoping stock, a pistol grip that protrudes conspicuously beneath the action of the weapon, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate a flash suppressor or a grenade launcher.
Evan Nappen 04:40
Now these are some interesting offending features. I know that a lot of you are going out grenade launching this weekend. I hope you have a good time doing that. Now of course that’s ridiculous. A bayonet mount is an offending feature? I always loved that. Like, what does that have to do with anything? What is it because of all the drive-by bayonetings? I mean, why is it even on the list, but it doesn’t matter. There’s no logic, of course. New Jersey banned logic in 1979 I guess, so don’t go arguing logic. This is the list. That’s what it is. It’s codified from the AG opinion that was grabbed from the 1994 Federal law, basically the ’94 crime bill. I like to say the bill that was a crime.
Evan Nappen 05:21
And somehow that applied to New Jersey, the Federal law into and through the state of the state law with substantially identical meeting definitions. So, they grabbed the Federal law, which was not enacted by New Jersey, and then adopted it. Now, of course, the Federal law itself is grandfathered and has been gone since 2004. But it lives on in New Jersey. The New Jersey’s definition of assault firearm as stated. So, the State Police looked at the definition of assault firearm, they looked at these things, and then they take a look at the Troy A4 and also letters from BATF in their analysis. In the conclusion of their analysis, they say that it is a firearm as defined in the Gun Control Act. This is from the Feds, but it’s not a firearm as defined in the NFA, which is the National Firearms Act.
Evan Nappen 06:22
So, the State Police, and I give them credit following suit of the Feds in their analysis, the State Police say that they found that Troy A4 is an “other firearm”, that’s a definition that they’re called, “others”, are considered firearms by New Jersey law. But they’re not a handgun, a rifle or a shotgun. Because the definition, since it’s designed for use with two hands and not shoulder fired. So, because it’s designed for use with two hands, it’s not a handgun. Because it’s not shoulder fired, it’s outside of shotgun and rifle. The State Police say as such the firearm does not fit in the definition of assault firearm. Aha. Why is that? Well, it’s not a rifle, and it’s not a shotgun. So, if it is not a rifle, not a shotgun nor a handgun, it can’t come under an assault firearm definition according to the State Police. Then it says what’s substantially identical and it must be specifically named, and they don’t fall under that “substantially identical” because it doesn’t pass the test as found in the ’96 guidelines that were incorporated into the Admin Code that I just read you. In summary, the New Jersey State Police found that the submitted Troy A4 other firearm are legal for sale in the State of New Jersey and are not considered to be an assault firearm.
Evan Nappen 08:01
But why review this now? Why talk about A4s? I mean, it’s nice, it’s good. It’s something cool and fun to shoot. I get all that. Well, it’s because, legally speaking, this is now coming to the surface with a lot of problems ahead for these guns. And I want you to be aware of it and how the interplay works in terms Page – 3 – of 8
of an actual case that I was just dealing with. So, here this fellow has one of these where it is specifically determined, based on these features and based on this analysis, etc. that it’s not an assault firearm. But nonetheless, he gets charged with possession of an assault firearm. Now a lot of that can be out of ignorance, just because law enforcement looks at it, and they don’t know what they’re looking at. But a gun that is absolutely an “other” and falls under this category, as you can see, requires this intense analysis, but they don’t know it. Or maybe they don’t care. I don’t know the answer. But nonetheless my client gets charged with assault firearm possession. Now the problem becomes when one is charged with possession of an assault firearm, not only is that criminal offense, unbelievable, unbelievably serious. It’s a Second-Degree crime. It carries up to 10 years in State Prison. It has a minimum mandatory three and a half years, no chance of parole. There’s no way around it. If you’re convicted, the judge’s hands are tied. He must or she must give you at least three and a half years with no chance of parole. You will do every day of the three and a half years for your possession.
Evan Nappen 09:42
In this case, my client had lawfully acquired this from a dealer, lawfully purchased it in New Jersey. It still didn’t matter. He gets charged with it and now we end up dealing with New Jersey so-called bail reform. This is where it can go from bad to worse, and you need to be aware of just how bad it is. New Jersey’s bail reform, you may have heard in the media and such they talk about it, they make it appear that bail reform lets all these bad guys get released. It’s a revolving door and blah, blah, blah. Well, to some degree, depending on who’s prosecuting or who the District Attorney is, or the Attorney General is, whoever’s handling this case, it’s possible that these individuals can get released like that, only because bail itself has virtually been eliminated in New Jersey. When it comes to bail reform, once you’re charged on a warrant, it’s either going to be that you are going to be released on some type of pretrial release, essentially, like the old ROR meaning Release on your Own Recognizance, or some degree of that, or you’re going to be held. You are to be given a pretrial detention, meaning you are going to be held in jail until your trial, folks. That can be years with no bail. That’s right. Unless you work it out sooner with some kind of plea deal or win on some motion, your butt is sitting in jail having been convicted of nothing. But in jail, you will stay.
Evan Nappen 11:35
Now the anti-gunners in Jersey had proposed and tried to put forward a bill making anybody charged with any gun offense at all, that’s a Graves Act offense, meaning unlawful possession of a handgun, unlawful possession of a rifle or shotgun, unlawful possession of assault firearm, etc. Any of these offenses. They wanted to create a presumption against release. Now there is in the bail reform a section of a certain class of persons for which there is a presumption against release and that class consisted of two categories. But now there’s a third. Now they originally wanted that third category to basically be gun owners. But the first category that comes under a presumption of non-release is murderers. That’s right. If you’re charged with murder and there is probable cause to believe that you committed murder, there is a presumption against your being released back into society. I can almost understand that. We’re concerned about murderers. At least we claim to be. The second category of presumption against release are those facing extended terms. We might call three strikes, and you’re out. Those that have offenses that are going to lead to serious, maybe even life sentences. So, yeah, that’s the other category where there’s presumption against release. Now the anti-gunners wanted to put anybody charged with a gun offense into a third category, making gun offenders the equivalent of Page – 4 – of 8
murderers. That’s how serious they were going to make it if you were charged with a gun offense, which is easy to have happen in New Jersey because of how terrible the laws are. But after a long fight, and a hard fight, particularly by our State Association, ANJRPC, the Association of New Jersey Rifle and Pistol Clubs, which is the NRA state affiliate and your main gun rights group in New Jersey. Let me just say, if you live in New Jersey and you’re a gun owner and you don’t belong to the ANJRPC, then I don’t have much respect for you. That is the minimum that you must do. Now, I’m not saying what the max is, and I’m not saying don’t join other groups as well. But you better belong to your State Association because that’s the only way we get anything in a very difficult state accomplished. So, please join.
Evan Nappen 14:26
After this fight, and it was a tough one, we were able to get the bill mitigated so that only one thing remained. And that was possession of an assault firearm. So, unfortunately, if you’re charged with possession of an assault firearm, New Jersey views you in the same category as a murderer. If you’re charged with that, then there’s a presumption against your being released, and you’re going to be held in jail until your trial. Here I am with this case where the person is being held, first you are held for two days and then the State if they’re going to detain you and hold you for another five days. Here, the client had been in a week. We are having the hearing to make the final determination whether there’s going to be this detention. Luckily, he had an attorney that understood the gun laws, because we were able to show that this charge is wrong. Not only that, but the judge was also like, counsel, you know I have a presumption against releasing your client. So, you know, that’s pretty strong. It looked like he was not going to release him because of that presumption. But we were able to show and argue and convince the judge and overcome the presumption of non-release with regard to this gun.
Evan Nappen 15:47
Now, we still have to fight the criminal charge and win it over being charged with possession of an assault firearm, even though we know the State Police analysis, and it’s out there. But you see, it doesn’t stop New Jersey from still attempting to prosecute you. So, even though we have this, and we have the arguments, and we can explain it as a matter of law, it still doesn’t stop New Jersey from turning law-abiding citizens into criminals. Here we have yet another victim of gun laws, as opposed to what the antis love to talk about, which is victims of gun violence, victims of gun violence. Well, what about victims of gun law? Well, here’s one right now. Here’s a guy that bought a gun lawfully from a dealer, 100% legal, licensed Firearms ID Card holder, etc., and he is now being put through the mill over his lawful purchase. To the point where his freedom was hanging in the balance without even being found guilty of anything, to be held for months, possibly years, before he could prove his innocence over a false charge that we still have to battle. This is a true story, my friends. This is New Jersey, and it’s how it’s still operating. It has to change, but until it does, you need to protect yourself. When we come back, I have some great letters from listeners.
Speaker 3 17:28
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 Page – 5 – of 8
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.
Speaker 3 18:41
You’re listening to Gun Lawyer with Attorney Evan Nappen. Available wherever you get your favorite podcasts.
Evan Nappen 18:57
Hey, welcome back to Gun Lawyer. Thanks for being a loyal listener. Thanks for subscribing and telling your friends about it. So, we can get the word out and warn you about the treacherous actions by New Jersey and still have some fun discussing it and seeing just how absurd it is. Because you gotta laugh. You can’t lose your sense of humor through this. But I do have some interesting letters here from listeners that I want to share with you that raised some good questions about things.
Evan Nappen 19:26
I have one right here from Pavle, and he says, regarding certified firearm instructor info. I attended your seminar in New Brunswick yesterday and while explaining the steps for Permit to Carry Application, you said that written notice from certified firearms instructors need to be presented for the gun we intend to apply for. He wants to know is the basic pistol training sufficient. I want to get the class at Gun for Hire or directly from ANJRPC. You’ve also mentioned the State Police website with list of instructions, but I was not able to find it. Can you provide me with a link for Bergen County, Paramus, etc. P.S. The seminar was great with lots of useful info, and he wished there was more time for Q&A. Well, if we were doing Q&A, we would be there still, because it never ends with questions. But I love answering folks’ questions.
Evan Nappen 20:29
The key question here is the whole thing about certifying for Jersey so you can get your carry. It’s not crystal clear about those requirements, although it is stated, and we’ve talked about it on the show before. So, the idea is how do you make your application the most likely to be accepted with the least amount of problems? You want to have it so that you can have it sail through with the least amount of problems and not question certification or qualification for your, “safe use and handling of a firearm”, which is what you’re going to have to prove to the satisfaction of the judge. Remember, every carry permit issued in New Jersey is issued by a judge. Carry permits are Court issued. So, you’re going to have to have the court buying this, agreeing with this, accepting this, etc. There are lots of stories about lots of things going on in the Courts, including what I’m hearing is courts requiring an appearance on every carry license, and apparently a directive is coming down. So, the Court is going to want to see everybody before they issue, which is kind of fascinating. I guess the Courts are not going to do anything else but gun licensing. I don’t know how they are going to handle all those folks. Page – 6 – of 8
Evan Nappen 21:57
Now, whether they just want to see you because they want to be benevolent and check things out, or whether it’s because there’s some other nefarious purpose behind it. Because remember, it is the courts originally to blame for creating the “justifiable need” standard. It wasn’t the legislature. It was the courts interpreting those words into an impossibility. So, you know, can we trust them now? Well, time will tell. We’ll see. One thing for sure, if they just want to see you and they want to make sure you’re decent, that’s maybe understandable since they are the issuing authority, even though they shouldn’t be, but they are. They want to make sure you don’t show up to court with a Punisher t-shirt on or something like that. Probably not a good idea. Then they are going to be questioning you.
Evan Nappen 22:45
When it comes to whether you’re qualified for the certifications that you’ve submitted, one of the tricks, one of the things is to utilize the ranges and instructors that the State Police put on their website. Therefore, if the judge is questioning, you can say look, I used the very training facility that the State Police put on their website so that adds some credentials. You can find this list under Firearms Information on the New Jersey State Police website.
Evan Nappen 23:18
(Here is the link to the Application for a NJ Carry Permit. https://nj.gov/njsp/firearms/forms.shtml . Scroll down to Permit to Carry Section. You will find a PDF of the Instructions and the Application. The Consent for Mental Health Records Search is further down on the page under “Other Forms”. It is also a PDF form that can be downloaded and then completed online. For NJ Shooting Ranges that will offer training and certification, the link is on the Instructions page.)
Evan Nappen 23:42
Of course, you can just Google Firearms Information, New Jersey State Police shooting ranges and you’ll come to this web page. We’ll have the link as well in the transcript of Gun Lawyer so you can find it there if you need it. When you look at it, it does list a number of places, and since the listener asked about some specific places, let me read you places that are on the list in case you need to know.
Evan Nappen 24:08
In Atlantic County, they list the Atlantic County Range Facility, Full Metal Jacket Gun range, and Range 129. In Camden County, they list the Police Association of South New Jersey. In Cumberland County, Bayside State Prison Pistol Range. In Essex County, The Bullet Hole Range and Essex County College Public Safety Academy. In Gloucester, they have Bob’s Little Sports Shop and Freedom Ammo Indoor Range. In Hudson, they list New Jersey Firearms Academy and Long Shot Pistol and Rifle. In Huntington, Tactical Training Center. In Middlesex, Old Bridge Rifle and Pistol Club and the East Brunswick Police Training Facility. They even list in Pennsylvania, Charles Hentz. In Monmouth County, the Monmouth County Rifle and Pistol Club. In Morris County, RTSP in Randolph. In Ocean County, Shooters Sporting Center, Shore Shot Pistol Range, Garden State Shooting Center, Shooters Sporting Center, and the Buckeye Gun Club. In Passaic, they list the Paterson Pistol & Rifle Club, Reloaderz NJ. In Wayne, the Woodland Park Range, which we all know as Gun for Hire. In Union County, Union County Rifle & Pistol Club, and RTSP of Union County. Finally in Warren County, Gunskills Training Group. These are the ones that appear on the New Jersey State Police website. Page – 7 – of 8
Look, I by no means say that they’re the only ones that can certify folks. But plainly, if you do certify by folks that are on that list, it gives you that edge should anything be questioned about what you’re submitting when you go for your carry license.
Evan Nappen 26:19
Okay, here’s another letter from Robert regarding HP, meaning hollow point ammunition. Good afternoon, Mr. Nappen. I recently completed my NRA basic pistol shooting at Gun for Hire. During this course, one of the instructors stated hollow point ammo is acceptable and legal to use in a home defense weapon. In fact, they said it’s only illegal in the commission of a crime. In reviewing (N.J.S.) 2C:39-3f(1) and all associated/referenced laws and regs. I’m struggling to accept the guidance due to the wonderfully ambiguous New Jersey gun laws. If I keep my nightstand home defense firearm loaded with hollow point ammo, and God forbid, I ever need to fire ammunition at a perpetrator, am I committing a crime by using that ammo? Or would it serve only as additional charges for my use of force etc. I want to use the best ammo for the job and keep my family safe while being legally compliant. I know carrying hollow point would be a different story. So, I want to confirm its use in the home defense situation. Also, is it true that hollow point ammo such as Hornady Critical Defense, which comes with a “Flex Tip” insert, is actually not technically considered hollow point since the bullet isn’t hollow? Thank you for everything you do for the 2A community. Love the podcast.
Evan Nappen 27:48
Okay, so here’s the answer. You possess your firearm in your home under the exemption under N.J.S. 2C:39-6e. It allows you to possess your handgun in your home. Now there is exemption for possession of hollow nose bullets under the hollow nose bullet law that allows for possession in one’s home and from going from place of purchase to one’s home. You can have hollow nose ammunition in your home just like you can have your gun in your home. You can load your gun in your home with hollow point or hollow nose ammunition and you are legal because you’re possessing the gun and the ammunition in your home. If you are justified in using deadly force in your home, in whatever that given situation is, and you shoot a bad guy with a hollow nose, the use of the hollow nose bullet is not unlawful by you. Now once you shoot the bad guy with the hollow nose bullet, the bad guy can then be charged with possession of a hollow nose bullet because there’s no exemption for him in your home to have it. I’m just kidding about the last part, folks. Just a joke. You are allowed to use it. You can have it in your home. You can have it in your gun. You can use it in your home.
Evan Nappen 29:29
Now getting carry licenses these days, which citizens are able to do, you cannot carry hollow nose in your carry licensed firearm that you have outside the home because there’s no exemption for that. They did not exempt hollow nose on the street. No. They want you to carry high penetration ammunition on the street. So, you can go through a couple people at once. We don’t want that one shot stop. We want super penetrating ammo out there. It’s ridiculous and stupid, but it is the law. Why should that surprise you that the law is ridiculous and stupid? But it is. So, maybe one day they’ll come to their senses and say, hey, maybe we shouldn’t have just high penetration ammunition on the street. We should make hollow nose useful and legal out in the street. In your home, you are exempted. On the street, you are not. Page – 8 – of 8
Evan Nappen 30:23
Now, the critical defense ammunition. Yes, there’s debate about whether it’s hollow nose or not, but the State Police on their website has specifically stated that Critical Defense, Critical Duty etc. are not hollow nose ammunition. So, that is something there that you can rely upon. I’ve already had to use it where I had clients charged with unlawful possession of hollow nose including the famous Roosevelt Twyne case. It’s exactly what he was charged with. When in fact he had the ammunition by Hornaday that was legal and listed on the State Police website. But it didn’t stop him from initially having problems as New Jersey is famous for doing, but yes, they’re lawful. If you have the Critical Defense in your home then even if they are hollow nose, or determined to be such, you are legal to have straight hollow points there anyway, so that round is not a problem in your home. This is Evan Nappen reminding you that gun laws don’t protect honest citizens from criminals. They protect criminals from honest citizens.
Speaker 3 31:37
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.