Two Cheers for the Appeals Court of New Jersey

Monday, April 2nd, 2012

A two-judge panel has overturned (PDF) two of the three gun-related convictions against Brian Aitken. I wrote about the outrageous prosecution of Aitken for Reason a couple years ago. Basically, under New Jersey law, it is a crime to possess a gun of any kind outside your home anywhere in the state (unless you’re one of the very, very few able to obtain a permit). However, once you’ve been caught and charged, you can argue one of the exemptions to the law, and one of those is moving between residences. Aitken was moving between residences (it’s a bit more complicated than that — read my article for the full details). Inexplicably, Aitken’s trial judge refused to let him argue one of the exceptions. Even the jury appeared perplexed. He was given seven years in prison.

New Jersey Gov. Chris Christie commuted Aitken’s sentence, but Aitken and his attorney didn’t ask for a pardon so they could fight to get the absurd laws overturned. The appeals court dismissed the gun conviction and the conviction for possessing the magazine, but oddly left the conviction for possessing ammunition.

Aitken’s attorney’s response:

“It doesn’t make sense if you have a gun and an exemption that allows you to take it to your new residence and the exemption doesn’t apply toward ammunition,” he said. “Are you supposed to leave your ammunition behind like you do light fixtures and refrigerators?”

Leaving the final conviction intact means Aitken will still have a felony record, which bars him from doing quite a few things, including ever owning a gun anywhere in the U.S. The prosecution also says it is appealing the ruling and considering retrying Aitken on the other two charges.

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29 Responses to “Two Cheers for the Appeals Court of New Jersey”

  1. #1 |  Mike T | 

    What we need to counter laws like this is to empower the federal government to simply disarm, with no recourse to the federal courts, any jurisdiction or even an entire state that has laws which limit the RTKB to the point of near non-existence. That goes from everyone from the police, to the national guard units (effectively making most blue state national guards purely support personnel).

  2. #2 |  Whim | 

    Another excellent reason not to live in New Jersey.

  3. #3 |  DPirate | 

    >a felony record, which bars him from doing quite a few things, including ever owning a gun anywhere in the U.S

    Not quite so, I think. Depends upon the jurisdiction, the crime, and possibly other factors, does it not?

  4. #4 |  V-Man | 

    I think leaving the ammunition charge in is to make sure he has the felony record.

    They may not be able to put him in jail, but they’ll make damn sure he can never own one of those evil guns again!

  5. #5 |  Pinandpuller | 

    He could buy a black powder revolver for home protection and cast his own bullets.

  6. #6 |  MM | 

    From the article:

    “The statement praises the appellate court’s decision to uphold the ammunition conviction and says the state is considering whether to retry Aitken on the weapons charges.

    “With the affirmation of this conviction, Mr. Aitken will now be barred from possessing any firearms in the future,” Bernardi said. “The statute concerning these bullets was enacted by our Legislature in recognition of the devastating impact that the use of this ammunition can cause to human life.”

    He declined to comment further.”

    On what grounds do they have to retry him? How do they avoid double jeopardy?

  7. #7 |  MM | 

    And regarding the bullets. They were HOLLOW POINT:

    “The conviction for possession of hollow-point ammunition still stands. The panel determined that Aitkens was incorrect in contending that state statute prohibiting such bullets was too vague to disallow him from having them.”

  8. #8 |  Cyto | 

    Well, let’s see if the Governor mans up and gives a full pardon now. I’ll have to read to opinion to find out what twisted logic they use to justify that finding. I’m sure they have sound legal reasoning behind it… with the way courts interpret laws ‘up’ can mean ‘down’ if they need it to.

  9. #9 |  Burgers Allday | 

    All this is nice, but the guy had his guns and ammo in the vehicle for an awful long time after the move before he got caught. He also claimed that he only had the stuff temporarily out of the unit because of a party, which is kind of inconsistent with the moving theory.

    Yeah, I would bet money that this guy was driving around routinely with whatever it was he got caught with.

    Don’t get me wrong, the law is stupid, but Aitken came off as selfserving in the factual details that he related, and he probably deserves only two cheers (but no less).

  10. #10 |  JOR | 

    Flagrantly breaking a stupid law and lying about it, I’d say deserves four cheers. Maybe five, but only if your lying and bullshitting is really good.

  11. #11 |  Judas Peckerwood | 

    Grew up in the Garbage State, and if I never see it again it will be too soon.

  12. #12 |  CyniCAl | 

    There’s the asshole of the universe …

    … and then there’s New Jersey.

    The population of New Jersey is stricken with mass-Stockholm Syndrome. They are aware they can live somewhere else, right?

  13. #13 |  Radley Balko | 

    All this is nice, but the guy had his guns and ammo in the vehicle for an awful long time after the move before he got caught. He also claimed that he only had the stuff temporarily out of the unit because of a party, which is kind of inconsistent with the moving theory.

    Both of these sentences are incorrect.

    Four people testified Aitken looked to be the process of moving his stuff from his parents’ house to his, including the arresting officer. Aitken’s car was packed full with his personal belongings. The long time between moves the judge and prosecution cited refer to his move between Colorado and New Jersey. He had stored his stuff at his parents’ place until he could find an apartment.

    Also, Aitken never claimed he put the guns in the car because of the party. He and his attorney don’t know why or how that got into the police report. They both say it didn’t come from him.

  14. #14 |  Burgers Allday | 

    No JOR,

    Aitken would only deserve four cheers if he had admitted that he always drove with guns or ammo in his car and would continue to do so because the law is stupid. That would have been heroism. Aitken chose a somewhat, but not totally, different path.

  15. #15 |  Burgers Allday | 

    Okay, thats for the correction about the party. That was the main source of confusion. That is the part that made me suspect Aitken was fudging the details. I, of all ppl, should know better than to take the police acct at face val.

  16. #16 |  Steve Verdon | 

    #7 is there a time limit in the statute? If not, then your comment is irrelevant.

  17. #17 |  Steve Verdon | 

    Damn, meant #9 not 7.

  18. #18 |  JOR | 

    Heroism is for suckers. Deception is a valid part of all combat, be it legal, political, or personal. If people are trying to lock you up for no good reason, you have no obligation to fight back “fairly” or “honorably”, i.e. on their terms at a game rigged in their favor.

  19. #19 |  Burgers Allday | 

    @18: Okay. However, I had to withdraw my previous statements because I got some misinformation about the facts of the case. Mr. Balko corrected me upthd.

  20. #20 |  David | 

    The reason he can be retried is because the court found that the jury received improper instructions, not that he was definitely innocent.

  21. #21 |  The Crip Bandit | 

    #3, It is impossible to get the Feds to give the rights back.

    #5, Black powder will depend on state law.

  22. #22 |  Onlooker | 

    So how exactly do you get your gun and ammo from the store to your house? I’m really perplexed by this. Is there some kind of authorized delivery service?(somewhat tongue in cheek, but who the hell knows)

  23. #23 |  Robert | 

    What’s the economic impact of a citizen turning into a felon? I’d like to know what this costs, over time.

  24. #24 |  Burgers Allday | 

    So how exactly do you get your gun and ammo from the store to your house? I’m really perplexed by this. Is there some kind of authorized delivery service?(somewhat tongue in cheek, but who the hell knows)

    The case only makes sense when you realize that the police really did believe that this guy was driving around his gun for more than just isolated trips. Mr. Balko says the police are wrong and I believe him. Nevertheless I could imagine Aiken driving along with belongs for an extended period so that if he ever got pulled over then he could say he was moving.

    There really was a lot more he-said-she-said in this case than I would have liked.

  25. #25 |  Mad | 

    Jersey is the most stupid place on earth there hallow point law a felloney for every hallow point bullet you have there right there with new york ran by a buch of idiots

  26. #26 |  Joel | 

    If people would learn two words ( jury nullification ). Instead of a defense fund, they should buy a front page of a local paper, post the story and the power of jury nullification, let them know they can throw out stupid laws.

  27. #27 |  Norm N | 

    Thank you comment #13 and well said comment #18. Our hard earned extorted taxes pay for the deviousness that too many judges are too proud of and can spend all day and all year spinning but in the end it is the truth that prevails.

  28. #28 |  CyniCAl | 

    #23 | Robert — “What’s the economic impact of a citizen turning into a felon? I’d like to know what this costs, over time.”

    Since all government spending no matter how wasteful adds to GDP, I have to conclude that more felons increases prosperity. The criminal justice system is the perfect growth industry.

  29. #29 |  Pi Guy | 

    While jury nullification is ethical, legal, and Constitutional, the courts seem to think that informing potential jurors that they have that option is a crime.

    http://newsandinsight.thomsonreuters.com/Legal/News/2012/03_-_March/Jury_nullification_a_danger,_judge_says/

    Yeah, I know. You’d think a judge and a bunch of lawyers would’ve actually known about this whole Constitution thingy as a part of their legal training.

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