Ignorance of the law is no excuse, but should criminal law give a pass to citizens who make an honest mistake?
Innocent people have been entangled in the criminal justice system for honest mistakes made, or due to their ignorance of out of state laws. This can result in felony convictions and jail time , even though they are licensed gun owners with no criminal history.
In all 50 states, you can legally carry a concealed handgun in public. Some states require residents to get a permit for their weapon, while other states have “restricted carry” rules.
Due to the state-by-state rule differences, people who carry guns must conform to all state laws to avoid a criminal charge – even if they’re not a resident of that state.
Frankly, all laws tend to be enforced selectively. As as Glenn Reynolds of USA Today states, “carrying a gun is way worse than beating your wife” – referencing the Ray Rice saga.
NFL player Rice knocked his wife-to-be unconscious in an elevator, and the NJ District Attorney Jim McLain and NJ Supreme Court Judge Michael Dinio agreed to put him in a diversion program for first time offenders to keep him out of jail.
The same officials refuse to consider the same diversion program for Shaneen Allen, the mother of two who was pulled over during a traffic stop and arrested after she told the officer she had a permit for a gun from Pennsylvania which she was carrying.
According to Radley Balko of the Washington Post: Miss Allen, who is a licensed gun owner of Philadelphia, was pulled over by the police for a traffic violation in New Jersey. She informed the officer that she had a concealed weapon and a Pennsylvania permit. Allen was then arrested on a felony weapons charge to serve a mandatory 3 year prison sentence for not having a New Jersey concealed weapon permit.
Allen had no prior criminal history, and there’s no indication that she intended to use the gun other than to defend herself, but she was thrown in jail for 40 days.
Pennsylvania has reciprocity with 30 states (Reciprocity is a policy where the laws of one state are recognized by another. In this case, it means that one state’s gun permits are accepted in the other state), but New Jersey was not one of them. Her ignorance of that law cost her dearly.
Making an Example of Allen
Instead of giving Allen a warning, the case was forwarded to the New Jersey prosecutors office. At that point, the prosecutor’s discretion included allowing Allen to pay a fine or provide community service. Instead, the New Jersey prosecutor’s office moved forward with a felony prosecution, using Allen as an example to deter others from making the same mistake.
The Daily Signal cited the Assistant Prosecutor Deborah Hay in saying “her case was too serious to warrant a divergence” to the state’s PTI program – that’s the pre-trial intervention that they allowed NFL Player Rice.
Citizens Detained With Licensed Gun
Citizens are detained despite having a legal permit more often than most people know.
- Greg Revell, of Utah was taking a flight from Salt Lake City to Pennsylvania in 2005. The flight had connections through Minnesota and Newark. According various press sources, Revell checked his licensed unloaded firearm in his luggage at Salt Lake City through to his final destination Allentown, Pennsylvania. His connecting flight from Minnesota caused a misconnect in Newark where he had to overnight and reclaim and recheck his bags in the morning to continue on his journey.Revell notified the agents of his firearm and was immediately arrested by the Port Authority Police for having a gun in New Jersey without a license. Revell spent 10 days in different jails before posting bail. Though Revel argued that it wasn’t his fault that he overnighted in New Jersey, the Prosecutors said they didn’t care whose fault it was.Police later dropped the charges but didn’t return his gun and ammunition until 3 years later.
Interestingly, federal laws permit licensed gun owners to take their weapons through any state as long as they are unloaded and not readily accessible to people.
- Brian Aitkin was in the process of moving from Colorado to New Jersey. Aitkin was arrested in New Jersey because he had 2 dismantled guns in the trunk of his car along with his moving possessions.The startling thing about this incident is legal gun owners moving from another state into New Jersey is an accepted exemption under the state’s law.When the exemption was brought up in court, the judge refused to hear it and sentenced Aitkin to 7 years behind bars. Like Allen, Aitken had no prior criminal record, and was indicted on a victimless charge.After spending 4 months in jail, New Jersey’s Governor Chris Christie, commuted his sentence. His saga however, continues as he is labeled a felon. He can no longer own guns, vote or obtain a passport for travel overseas, cannot get a credit card, or sign a lease for an apartment. His fight continues.
- Engineer Jeremy Preston, an engineer at one of the nation’s nuclear facilities, was arrested for carrying a concealed weapon even though the states share reciprocity. As detailed by Cris Barrish of USA Today, Preston, who has a concealed weapons permit license in Tennessee, was traveling from Tennessee to Delaware – where he works – and was pulled over by police for a minor traffic infraction.Like Allen, Barrish told the police officer that he had a weapon in his glove box.A few days later, Barrish was arrested and charged with a felony for carrying a deadly weapon, despite having a concealed carry weapons permit from Tennessee. What Barrish didn’t know was that his Tennessee gun permit was voided when he got a Delaware driver’s license.Barrish was aware of the reciprocity laws between the states, but NOT aware that his gun permit would automatically invalidate if he got driver’s license in another state.Fortunately for Preston, a few weeks later, the Delaware prosecutor declined to brings forth charges against him and dropped the case.
Mistake of Law Defense to Stop Overcriminalization of Minor Gun Infractions
Paul Larkin of the Heritage Foundation is an advocate of the Mistake of Law defense. This defense would show that the individual was not guilty and is morally-blameless. That reduces consequences for innocent parties without creating a loophole for miscreants.
Under this doctrine, the defendant would have the option to use, as their defense, the concept that they believed they were acting legally, and a reasonable person would not have believed that their conduct was an illegal act.
The defendant would however, have to produce evidence to support the ‘Mistake’ defense. This may include needing to persuade officials, a judge, and/or a jury that their actions were not criminal by a ‘preponderance of the evidence’ – that’s overwhelming proof that the defendant should not be prosecuted as a criminal, but released as someone who was simply in error.
Making Mistakes and Suffering the Legal Consequences
We all make mistakes and the average person would believe that a gun permit, just like a driver’s license, is valid through all 50 states. Ignorance of the law is no excuse, but common sense should prevail in the office of the prosecutor.
We all want guns to be used safely, but does anyone want law-abiding citizens to be victimized by officials who impose draconian penalties on people who make an honest mistake? Hands up!