Just Because I’m Paranoid: Addressing Obstacles to Gun Control

The story of Joseph Pelleteri and others like him create one of the biggest obstacles to “commons sense” gun legislation — the fear that otherwise law abiding citizens will be snared in a law enforcement nightmare.  It is that fear, embodied in the prosecutions of people attempting to navigate a labyrinthine system of regulations that dooms most gun control measures.

Imagine winning a brand new sports car with a V8 engine in a contest hosted by your local police department.  You keep the car in your garage, never driving it, and one day while the cops are at your home on an unrelated issue, they arrest you.  V8’s you are informed were made illegal in the time between winning the car and today.  You find it a bit absurd, after all, since the same police arresting you were the ones that gave you the car.  You’re less amused when you find out you’re sentenced to jail for many years.

This sounds absurd.  Surely, no one would change a law and then arrest you for breaking it.  But for Joseph Pelleteri, it was no joking matter.

Pelleteri, an expert marksman who was once employed as a firearms instructor, won a contest hosted by a police department.  He received, from the police, a legal Marlin semi-automatic rifle that held 17 rounds of ammunition.  Several years later, the State of New Jersey amended N.J.S.A  2C:39-1(w)(4) dealing with firearms and because his rifle held more than 15 rounds, Mr. Pelleteri’s rifle was subject to the “assault firearm” ban enacted in 1990.  The decision in his case says that “[w]hen the police recovered the gun from defendant’s residence in December 1993, it still had the manufacturer’s tags and the owner’s manual attached to the trigger guard.”

To be clear, Mr. Pelleteri wasn’t a criminal before he received this rifle form a police department.  There is no indication that he had committed a crime to bring the attention of the police upon him (it is unclear in the record why police were at his home).  By all accounts, he was an upstanding, law abiding member of society and this rifle, capable of holding 17 rounds was perfectly legal when a police officer gave it to Mr. Pelleteri in the 1980s.  But now, it would now be the cause of his incarceration.

The Judge presiding over his case refused to even inform the jury that Mr. Pelleteri claimed he never read the owners manual and had no idea that the rifle was subject to the “assault firearms” ban and the appellate division affirmed the decision:  “Defendant’s failure to inspect the weapon or read the owner’s manual to determine whether it fell within the statutory definition was unreasonable as a matter of law. We find no error in the trial judge’s refusal to submit the issue to the jury.”

The parting words of the Appellate Division give chills to gun owners: “When dealing with guns, the citizen acts at his peril. In short, we view the statute as a regulatory measure in the interests of the public safety, premised on the thesis that one would hardly be surprised to learn that possession of such a highly dangerous offensive weapon is proscribed absent the requisite license.”  You can read the decision of the New Jersey Appellate Division in the Pelleteri case here.

If you think this is an isolated incident in the distant past, you haven’t been paying attention.  Every time gun laws change and an item which has previously been legal to possess is outlawed (e.g. assault weapons or high capacity magazines), these stories reappear.  And NY made many changes after the Newtown tragedy last year.

Paul Wojdan was a law abiding citizen until his his girlfriend was pulled over at a traffic stop and he was arrested this past October.  Mr. Wojdan had a clean record.  He also had a conceal carry permit for the pistol he informed the officer he had in his glove compartment.  Unfortunately for Mr. Wojdan, he was about to find out that on April 15th of this year, the NY SAFE act went into effect and although his 10 round magazine had been legal six months prior, he was now, in the eyes of the law, a criminal.  His arrest outraged law abiding gun owners.  They saw this as vindication of their claims that government was more interested in harrasing those trying, in good faith, to abide by an ever changing landscape of firearms legislation, than an honest attempt to address the problems of gun violence in society.  Were they wrong?  Mr. Wojdan, had no criminal record.  He sought and obtained a permit to carry his firearm and had he kept three bullets in his pocket instead of the magazine, he would have been in compliance with the law.  Certainly, this isn’t what the public had in mind when they demanded gun regulations for the safety of New York’s residents.

On January 2, 2009, Brian Aitken, an entrepreneur moving from Colorado to New Jersey got off the phone with his mother and she felt a bit worried.  His mother, having worked for years with children who have mental health problems was concerned that her son might be a threat to himself or others.  She did exactly what she had been trained to do, she called the police.  Despite the fact that she hung up before speaking to the police, they called her back and she explained the reason for the initial call.  To allay her concerns, the police contacted Mr. Aitken and asked him to return home so they could determine that he wasn’t a threat to himself or anyone else.

Despite a determination that Mr. Aitken was indeed, not a threat, he was arrested.  A search of his car found unloaded guns, in a locked container.  While this was legal under Federal as well as New Jersey law, the 17 round magazines he legally purchased and possessed in Colorado were illegal in the State of New Jersey.  There is evidence in the record that before moving, Mr. Aitken contacted the New Jersey State Police to inquire as to how to transfer his weapons from Colorado and that inaccurate information was obtained.  According to Mr. Aitken: “I called the New Jersey State Police and asked them how to transport my firearms and I did exactly what they told me to do.”

One might feel that a warning was appropriate here.  There was clearly no criminal intent, the firearms were legal and the magazines, while technically illegal in New Jersey were not being used in connection with a crime and by all accounts, he would never have brought them to New Jersey if he received accurate information from the State Police.  A warning however, would not be forthcoming.  As  recounts in Reason, “New Jersey Attorney General Anne Milgram issued a directive (PDF) urging the state’s prosecutors to apply the new law “vigorously,” “strictly,” and “uniformly.””  And a vigorous, strict prosecution followed.  Mr. Aitken was eventually sentenced to seven years in prison by Judge James Morley.  He went to jail on August 27, 2010.

After a coordinated campaign from family and friends as well as thousands of fellow gun owners and citizens, Governor Christie signed a clemency commutation for Brian Aitken on December 20, 2010.  While he was released to his family the next day, a conviction, even one commuted by the Governor still creates serious problems.  Not only can Brian Aitken no longer own a firearm, he can’t vote.  The family court took his conviction as evidence in its decision to sever his parental rights and he has been fighting for years to see his young son.  He cannot travel because his passport was revoked.

Eventually, on March 30, 2012 the New Jersey Appellate Division overturned two of the convictions and a few days later, on April 4, 2012, the prosecutor dismissed the remaining charge.

No one denies that Brian Aitken was technically guilty of a violation of New Jersey’s gun laws.  But what message does it send when an individual makes a good faith effort to comply with a complex set of laws – going as far as calling the State Police to follow their guidance – and is still prosecuted with extreme animus by the State?  Is it any wonder that gun owners look askance at new regulations as merely another trap to ensnare them for a possible seven year stretch in prison?

This is the key problem with calls for what would otherwise seem to be legitimate gun control regulations.  Fear of a fate similar to that of Aitken, Wojdan or Pelleteri causes gun owners to argue against new gun laws they claim would make significant numbers of law-abiding people become criminals with the stroke of a legislative pen.  The public’s lack of awareness of these cases and those like them inevitably leads gun owners to be viewed as paranoid.

While Brian Aitken is technically free, he is still fighting for custody, he can’t vote and he doesn’t enjoy simple liberties that we all take for granted.  Besides, a system that relies on the plenary powers of the Chief Executive to dispense Justice is not a system that the public should have any level of confidence living under.

The massacre in Newtown, CT was a game changer in how people approached gun control legislation.  In NJ, Governor Christie asked a commission to study possible legislative steps to prevent tragedies such as those that occurred in Connecticut.  The NJ Safe Task Force on Gun Protection, Addiction, Mental Health and Families, and Education Safety was released on April 10, 2013.  It is thorough, comprehensive and recommends a number of legislative steps to promote public safety.  It also cautions against certain measures which would most likely not be effective.

The recommendations for magazine capacity can be found on page 20 (emphasis mine):

Because large-capacity magazines are lawful in most jurisdictions across the country, it is not certain whether and to what extent any one state‟s ban can be effective at preventing a mass shooter from gaining access to prohibited ammunition magazines. Most mass shootings appear to have been planned events. Regrettably, a person who is preparing for a mass shooting attack is likely to be able to acquire high-capacity magazines despite a state-law prohibition, because he or she need only travel to one of the vast majority of states where such devices are lawful.  Although the Task Force has been unanimous in all other questions, on this one issue of magazine size, we reached no consensus and therefore withhold any recommendation on whether to retain or reduce the current magazine limit, other than to recommend that policymakers further consider this question.

Nevertheless, the Democratic leaders of the New Jersey legislature proposed a limit on magazine size the following session.  The proposal was met with swift opposition.  Millions of gun owners have these magazines, polling has indicated their unwillingness to discard or turn them in and such a regulation coupled with the zealous prosecution efforts of the government made many gun owners fear for their safety.  As it stood, they would show up in droves to legislative sessions, renting buses to make sure that legislators understood the ramifications of such a vote in the next election.

Any gun law that criminalizes previously legal activity must confront this reality:  there are no registration systems for firearms, let alone magazines, and it’s therefore impossible to ensure that everyone has received notice that absent an affirmative action, they will be in violation of a newly passed law (and subject to criminal penalties, which may include significant jail terms).

When the laws have very little reason to be successful at reducing violence, there is an added obstacle — the public simply refuses to comply. As Adam Winkler states in his book, Gun Fight:

“In 1989, California passed a law requiring all assault weapons to be registered within a year.  By the end of that time, less than 20 percent of the estimated number of assault weapons in the State were registered.  In a survey of gun owners in Illinois, 73 percent said they would not comply with a law requiring them to turn in their guns.”

To be clear, I’m certainly not against gun control laws, but many that are proposed have no rational basis for any expectation that they would reduce gun violence and they eventually serve to make the public distrustful of efforts that may actually succeed.

There is a sense of urgency to “do something” when faced with a tragedy.  It’s understandable – the idea that we may never be able to stop an incredibly heinous, yet statistically rare event like a mass shooting is maddening from a public policy (and human) perspective.  Yet, we can’t lose sight of the fact that laws designed to deter or punish criminals also have consequences for otherwise law abiding individuals in technical violation of the law.  Confusion caused by a patchwork system of gun laws that vary State to State, new bans and limits on popular firearms or magazines (e.g. the AR15, which is one of the most popular firearms in American history with millions flying off shelves) coupled with the public’s unwillingness to report their firearms to the government, create the situations that snared Mr. Pelleteri, Mr. Aitken and Mr. Wojdan.

Are any of us better off because these individuals were prosecuted?

How many of our neighbors should we put in jail as the cost of enacting legislation which experts say, has little promise at reducing violence?  How much more effective would gun control and violence prevention efforts be if they addressed these problems head-on?

Gun owners see this as maddening – and they are tired of being called paranoid.

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