Brian Aitken Conviction Overturned

[Malsua 1,422]

No, they never proved in court that the mags met the NJ definition of a high cap. It must hold more than 15 AND feed into a semi auto. In court they loaded 16 rounds, but they never put the magazine in a fun and proved it would cycle.

 

That one is only going to work this one time.

[BigHayden 77]

And then we have the strangeness of the hollowpoints, which apparently you can buy, own, shoot, but not move .. I suppose if you are moving you need to drive to the range first for a practice session and drive the rest to your new home.

 

Nope. The only exception for transporting HP ammo is from the place of purchase to your home/land owned by you. Buying HP ammo at the store and driving to the range to shoot is is illegal under the law and the precedent set by this ruling. Once the ammo is in your home, there is no legal way to remove it.

[Vlad G 345]

Nope. The only exception for transporting HP ammo is from the place of purchase to your home/land owned by you. Buying HP ammo at the store and driving to the range to shoot is is illegal under the law and the precedent set by this ruling. Once the ammo is in your home, there is no legal way to remove it.

 

Say what? There is more then one exception in the law:

Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S. 2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet,

 

Note the reference to 2C:39-6 (f) which says:

 

f. Nothing in subsections b., c. and d. of N.J.S. 2C:39-5 shall be construed to prevent:

(1)A member of any rifle or pistol club organized in accordance with the rules prescribed by the National Board for the Promotion of Rifle Practice, in going to or from a place of target practice, carrying such firearms as are necessary for said target practice, provided that the club has filed a copy of its charter with the superintendent and annually submits a list of its members to the superintendent and provided further that the firearms are carried in the manner specified in subsection g. of this section;

[BigHayden 77]

Say what? There is more then one exception in the law:

 

OK, that's what I get for not reading the statutes completely, again, and just going off of what was referenced in the decision.

 

Still, the fact remains that you cannot take your ammo with you when you move, nor can you travel out of state with it (i.e. go to PA to carry it in a carry gun), since those activities aren't listed in 2C:39-6(f).

[fumanchu182 23]

I was looking up HP ammunition and I found this:

 

http://www.njsp.org/about/fire_hollow.html

 

So it is not illegal to own, just have to be going to and from a range like regular ammunition.

[Ronald Silver 2]

I was looking up HP ammunition and I found this:

 

http://www.njsp.org/...ire_hollow.html

 

So it is not illegal to own, just have to be going to and from a range like regular ammunition.

 

From what I understand, it's legal to own & shoot it at the range but not for self defense even in the home.

[NorthernYankee 94]

I was looking up HP ammunition and I found this:

 

http://www.njsp.org/...ire_hollow.html

 

So it is not illegal to own, just have to be going to and from a range like regular ammunition.

 

Good find!

[TheWombat 67]

From what I understand, it's legal to own & shoot it at the range but not for self defense even in the home.

 

Not true. It is legal to use for self defense in the home, if however you are convicted then the fact you used hollow points could increase your sentence.

 

Perhaps we need a sticky specifically about Hollow Points as the topic seems to come up regularly and there are a mix of confused/incorrect responses.

 

AFAIK Hollow Points:

• Can be used at the range
  
• Can be transported to and from the range (following standard laws for carrying ammunition)
  
• Can be used in the home
  
• Can be transported to another state where you can then (subject to that state's laws) carry hollow points in your carry firearm.
  

 

TheWombat

[PeteF 1,044]

So it is not illegal to own, just have to be going to and from a range like regular ammunition.

 

No, you can drive around all day legally with non- hollowpoint ammo in your car (no gun in car). If you are caught with HP ammo in your car and not under the exemptions you are in for trouble. For example 1 round of HP falls out of your range bag onto the backseat of car on the way home from the range. When you get home you take your range bag inside. Later that night you get pulled over for 40 in a 30, cop sees HP round on back floor, you are now in DOO DOO.

[KpdPipes 388]

Ok, i knew i was missing some angle to this. But, what gives? the guy is qualified to load the mags? but not qualified to show it works?

 

Just because you can force a 16th round intoa magazine, doesn not mean that that magazine will then FUNCTION. I can think of a dozen different things that could occur that would jam the weapon up solidly, and not allow that top rouapable of holding more than 15, and #2 The FEEDING those rounds into a semiauto firearm.

[Qel Hoth 33]

Just because you can force a 16th round intoa magazine, doesn not mean that that magazine will then FUNCTION. I can think of a dozen different things that could occur that would jam the weapon up solidly, and not allow that top rouapable of holding more than 15, and #2 The FEEDING those rounds into a semiauto firearm.

 

Very true, I once jammed 32 into an M-16 magazine because I wasn't paying attention. It took me 10 minutes and a leatherman to get the damn thing out...

[leahcim 680]

THAT, my friend, is double jeopardy. Prosecution cannot retry these charges on these facts. If there had been a mistrial or hung jury, prosecution could retry. But not now.

According to the opinion, they could technically hear the case again, but thanks to Gov. Christie's commutation, that would be pointless.

Footnote 8 on the opinon:

"Although the State may elect to pursue a retrial, we note that the State has conceded that the gubernatorial commutation of the custodial sentence precludes imposition of any custodial sentence following such a retrial"

 

I absolutely do not understand and cannot comprehend the trial judge refusing THREE requests from the jury regarding the moving exemptions for transport of firearms. They asked for it THREE times, and the judge tells them they do not need to consider that.

[PeteF 1,044]

The judge obviously had an agenda, as well as being a loon.

However someone on the jury must have known of the exemptions or how would they even know to ask about them. Maybe its just me but that would have given a reasonable doubt if the judge wouldn't explain WHY the exemptions did not apply.

[leahcim 680]

Exemptions were mentioned at trial. According to the opinion (p.10), "During deliberations, the jury asked about the exemptions, which had been mentioned during the trial despite the fact that they were not charged." and

The note [from the jury] read: "Please define the exceptions to the law for all three charges. That is it was announced that 'moving is an exception.' We need to be clear of all exceptions, if any, for each charge."

[Smokin .50 1,907]

No, you can drive around all day legally with non- hollowpoint ammo in your car (no gun in car). If you are caught with HP ammo in your car and not under the exemptions you are in for trouble. For example 1 round of HP falls out of your range bag onto the backseat of car on the way home from the range. When you get home you take your range bag inside. Later that night you get pulled over for 40 in a 30, cop sees HP round on back floor, you are now in DOO DOO.

 

This is SCARY! How many of us (including Me) have accidentally knocked-over or dropped one of those bulk .22 LR HOLLOW POINT boxes of 525 rounds from Federal or Remington into our car trunks? Nobody actually stops and thinks about the .22 LR HOLLOW POINTS. But an over-zealous Newbie Cop could write you up and cuff you (after seeing the loose .22's laying in your trunk) for just changing a flat tire on the side of the road??

 

We're NOT the Criminals! Now if we could just get the Politicos to see it our way!!!

[Belmopan Gringo 5]

Please allow me to clarify a misunderstanding that I have seen several times today.

 

You are not allowed to carry hollow point ammunition to the shooting range under the Aitken opinion. Under this opinion, hollow point ammunition is prohibited under 2C:39-3, but there is a exception under that section (Section -3) for “keeping such ammunition at his dwelling, premises or other land owned or possessed by him, or carrying such ammunition from the place of purchase to said dwelling or land.”

 

A different section (Section -5) prohibits the possession of a handgun without a carry permit, but yet another section (Section -6) provides an exception to Section -5 and states that “nothing in subsections b., c., and d. of NJS 2C:39-5 shall be construed to prevent.. a person transporting any firearm or knife while traveling.. .directly to or from any target range[.]”

 

In other words, the “shooting range” exception for weapon possession does not apply to weapons identified in section -3, only section -5. Since hollow points are banned by section -3, the shooting range exception does not apply to them. Therefore, under section -3, you can have hollow points in your home, and you can bring them to your home after to legally purchase them. Once they are there, however, they cannot be taken to the shooting range, at least a shooting range in New Jersey.

 

There may be an exception if you are taking them from your home to a location out of state since that would be governed by federal, not state law.

 

P.S. I am aware of the State Police website entry that says you can transport hollow tip ammunition to the range. http://www.njsp.org/about/fire_hollow.html In my opinion, this site is wrong in light of the language of the Aitken opinion, which specifically found that the exceptions under section -6 do not apply to section -3. Aitken might have a good argument on appeal that even the State police believe that the exceptions of -6 apply to hollow point bullets.

[PeteF 1,044]

Please allow me to clarify a misunderstanding that I have seen several times today.

 

You are not allowed to carry hollow point ammunition to the shooting range under the Aitken opinion. Under this opinion, hollow point ammunition is prohibited under 2C:39-3, but there is a exception under that section (Section -3) for “keeping such ammunition at his dwelling, premises or other land owned or possessed by him, or carrying such ammunition from the place of purchase to said dwelling or land.”

 

A different section (Section -5) prohibits the possession of a handgun without a carry permit, but yet another section (Section -6) provides an exception to Section -5 and states that “nothing in subsections b., c., and d. of NJS 2C:39-5 shall be construed to prevent.. a person transporting any firearm or knife while traveling.. .directly to or from any target range[.]”

 

In other words, the “shooting range” exception for weapon possession does not apply to weapons identified in section -3, only section -5. Since hollow points are banned by section -3, the shooting range exception does not apply to them. Therefore, under section -3, you can have hollow points in your home, and you can bring them to your home after to legally purchase them. Once they are there, however, they cannot be taken to the shooting range, at least a shooting range in New Jersey.

 

There may be an exception if you are taking them from your home to a location out of state since that would be governed by federal, not state law.

 

P.S. I am aware of the State Police website entry that says you can transport hollow tip ammunition to the range. http://www.njsp.org/...ire_hollow.html In my opinion, this site is wrong in light of the language of the Aitken opinion, which specifically found that the exceptions under section -6 do not apply to section -3. Aitken might have a good argument on appeal that even the State police believe that the exceptions of -6 apply to hollow point bullets.

 

Actually I'd more go with the AIken opinion is wrong.

 

 

Sub section f (1) further exempts from the prohibited possession of hollow nose ammunition "persons engaged in activities pursuant to N.J.S.A 2C:39-6f. . . ."

N.J.S.A 26:39-3f. (1).

Activities contained in N.J.S.A 26:39-6f. can be broken down as follows:

1.A member of a rifle or pistol club organized under rules of the National Board for the Promotion of Rifle Practice and which filed its charter with the State Police;

2.A person engaged in hunting or target practice with a firearm legal for hunting in this State;

3.A person going directly to a target range, and;

4.A person going directly to an authorized place for "practice, match, target, trap or skeet shooting exhibitions."

 

But then again our judges have trouble with English like "30 days for permits"

[Vlad G 345]

39-6f is mentioned nowhere in the decisions as far as I can tell because no one, including the defense, argued he should be exempt under 39-6f, he wasn't involved in that activity. The judge ruling that there is no moving exception doesn't actually say that hollow points can not be used under the guidelines of 39-6f.

[BRaptor 68]

According to the opinion, they could technically hear the case again, but thanks to Gov. Christie's commutation, that would be pointless.

Footnote 8 on the opinon:

"Although the State may elect to pursue a retrial, we note that the State has conceded that the gubernatorial commutation of the custodial sentence precludes imposition of any custodial sentence following such a retrial"

 

You're right, they could retry the first count, because the judge failed to instruct the exemption for possession of the handguns.

 

But, the state cannot retry the second charge (for the magazines), because of a lack of sufficiency of the evidence to support the jury conviction.

 

**That's what I get for not reading the opinion before spouting off!**

[leahcim 680]

Actually I'd more go with the AIken opinion is wrong.

 

 

Sub section f (1) further exempts from the prohibited possession of hollow nose ammunition "persons engaged in activities pursuant to N.J.S.A 2C:39-6f. . . ."

N.J.S.A 26:39-3f. (1).

Activities contained in N.J.S.A 26:39-6f. can be broken down as follows:

1.A member of a rifle or pistol club organized under rules of the National Board for the Promotion of Rifle Practice and which filed its charter with the State Police;

2.A person engaged in hunting or target practice with a firearm legal for hunting in this State;

3.A person going directly to a target range, and;

4.A person going directly to an authorized place for "practice, match, target, trap or skeet shooting exhibitions."

 

But then again our judges have trouble with English like "30 days for permits"

Yeah, because if the Aitken opinion is correct on this (no "moving exception" for transporting HP) then there is no legal way to transfer legally owned HP ammo if you move to a new house. Unless maybe you could fed-ex it? That seems ridiculous.

[Belmopan Gringo 5]

Actually I'd more go with the AIken opinion is wrong.

 

 

Sub section f (1) further exempts from the prohibited possession of hollow nose ammunition "persons engaged in activities pursuant to N.J.S.A 2C:39-6f. . . ."

N.J.S.A 26:39-3f. (1).

Activities contained in N.J.S.A 26:39-6f. can be broken down as follows:

1.A member of a rifle or pistol club organized under rules of the National Board for the Promotion of Rifle Practice and which filed its charter with the State Police;

2.A person engaged in hunting or target practice with a firearm legal for hunting in this State;

3.A person going directly to a target range, and;

4.A person going directly to an authorized place for "practice, match, target, trap or skeet shooting exhibitions."

 

But then again our judges have trouble with English like "30 days for permits"

 

This is precisely what I am referring to. You are quoting from the New Jersey State Police website. Unfortunately that website has it wrong. You have to look at the actual statute, not the State Police's interpretation of the statute.

 

First, it is allegedly quoting from N.J.S.A.26:39-3f.(1). In fact, there is no statute by that number.

 

The actual staute is N.J.S.A. 2C:39-3f.(1). If you look at N.J.S.A. 2C:39-3f.(1), there is no excpetion for "persons engaged in activities pursuant to N.J.S.A 2C:39-6f. . . ."

 

Here is the entire language of N.J.S.A. 2C:39-3f.(1). The exception that the State Police says is there is simply not there:

 

2C:39-3 Prohibited Weapons and Devices.

 

a.Destructive devices. Any person who knowingly has in his possession any destructive device is guilty of a crime of the third degree.

 

b.Sawed-off shotguns. Any person who knowingly has in his possession any sawed-off shotgun is guilty of a crime of the third degree.

 

c.Silencers. Any person who knowingly has in his possession any firearm silencer is guilty of a crime of the fourth degree.

 

d.Defaced firearms. Any person who knowingly has in his possession any firearm which has been defaced, except an antique firearm or an antique handgun, is guilty of a crime of the fourth degree.

 

e.Certain weapons. Any person who knowingly has in his possession any gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band studded with metal filings or razor blades imbedded in wood, ballistic knife, without any explainable lawful purpose, is guilty of a crime of the fourth degree.

 

f.Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and © is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.

 

g.Exceptions. (1) Nothing in subsection a., b., c., d., e., f., j. or k. of this section shall apply to any member of the Armed Forces of the United States or the National Guard, or except as otherwise provided, to any law enforcement officer while actually on duty or traveling to or from an authorized place of duty, provided that his possession of the prohibited weapon or device has been duly authorized under the applicable laws, regulations or military or law enforcement orders. Nothing in subsection h. of this section shall apply to any law enforcement officer who is exempted from the provisions of that subsection by the Attorney General. Nothing in this section shall apply to the possession of any weapon or device by a law enforcement officer who has confiscated, seized or otherwise taken possession of said weapon or device as evidence of the commission of a crime or because he believed it to be possessed illegally by the person from whom it was taken, provided that said law enforcement officer promptly notifies his superiors of his possession of such prohibited weapon or device.

 

(2) a. Nothing in subsection f. (1) shall be construed to prevent a person from keeping such ammunition at his dwelling, premises or other land owned or possessed by him, or from carrying such ammunition from the place of purchase to said dwelling or land, nor shall subsection f. (1) be construed to prevent any licensed retail or wholesale firearms dealer from possessing such ammunition at its licensed premises, provided that the seller of any such ammunition shall maintain a record of the name, age and place of residence of any purchaser who is not a licensed dealer, together with the date of sale and quantity of ammunition sold.

 

b.Nothing in subsection f.(1) shall be construed to prevent a designated employee or designated licensed agent for a nuclear power plant under the license of the Nuclear Regulatory Commission from possessing hollow nose ammunition while in the actual performance of his official duties, if the federal licensee certifies that the designated employee or designated licensed agent is assigned to perform site protection, guard, armed response or armed escort duties and is appropriately trained and qualified, as prescribed by federal regulation, to perform those duties.

 

(3)Nothing in paragraph (2) of subsection f. or in subsection j. shall be construed to prevent any licensed retail or wholesale firearms dealer from possessing that ammunition or large capacity ammunition magazine at its licensed premises for sale or disposition to another licensed dealer, the Armed Forces of the United States or the National Guard, or to a law enforcement agency, provided that the seller maintains a record of any sale or disposition to a law enforcement agency. The record shall include the name of the purchasing agency, together with written authorization of the chief of police or highest ranking official of the agency, the name and rank of the purchasing law enforcement officer, if applicable, and the date, time and amount of ammunition sold or otherwise disposed. A copy of this record shall be forwarded by the seller to the Superintendent of the Division of State Police within 48 hours of the sale or disposition.

 

(4)Nothing in subsection a. of this section shall be construed to apply to antique cannons as exempted in subsection d. of N.J.S.2C:39-6.

 

(5)Nothing in subsection c. of this section shall be construed to apply to any person who is specifically identified in a special deer management permit issued by the Division of Fish and Wildlife to utilize a firearm silencer as part of an alternative deer control method implemented in accordance with a special deer management permit issued pursuant to section 4 of P.L.2000, c.46 (C.23:4-42.6), while the person is in the actual performance of the permitted alternative deer control method and while going to and from the place where the permitted alternative deer control method is being utilized. This exception shall not, however, otherwise apply to any person to authorize the purchase or possession of a firearm silencer.

 

h.Stun guns. Any person who knowingly has in his possession any stun gun is guilty of a crime of the fourth degree.

 

i.Nothing in subsection e. of this section shall be construed to prevent any guard in the employ of a private security company, who is licensed to carry a firearm, from the possession of a nightstick when in the actual performance of his official duties, provided that he has satisfactorily completed a training course approved by the Police Training Commission in the use of a nightstick.

 

j.Any person who knowingly has in his possession a large capacity ammunition magazine is guilty of a crime of the fourth degree unless the person has registered an assault firearm pursuant to section 11 of P.L.1990, c.32 (C.2C:58-12) and the magazine is maintained and used in connection with participation in competitive shooting matches sanctioned by the Director of Civilian Marksmanship of the United States Department of the Army.

 

k.Handcuffs. Any person who knowingly has in his possession handcuffs as defined in P.L.1991, c.437 (C.2C:39-9.2), under circumstances not manifestly appropriate for such lawful uses as handcuffs may have, is guilty of a disorderly persons offense. A law enforcement officer shall confiscate handcuffs possessed in violation of the law.

[Vlad G 345]

Did you read what you posted? Because it included this:

 

f.Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or

[njJoniGuy 2,131]

So, if I'm understanding this correctly, as a Member of a CMP member range that files its membership list with the State of NJ (Dept of Public Safety, Div of State Police, State Bureau of Investigation) as laid out in Title 2C:39-6f, I am exempt from the hollow point penalty?

 

(The back of my Cumberland Riflemen photo ID Membership card / Range Permit (with current expiration date sticker affixed) specifically states that my membership complies with 2C:39-6f)

[Belmopan Gringo 5]

Did you read what you posted? Because it included this:

 

I did, but apparently I didn't read it closely enough. My apologies for adding to the confusion.

[Tmost 17]

I almost bought 250 9mm 124 grain JHP rounds last night. I'm glad I held off on the purchase. It doesn't seem clear whether or not they are legal to own in NJ.

[DirtyDigz 1,812]

Aitken is now looking for donations to publish a book and take his case to the supreme court:

 

http://www.indiegogo.com/projects/help-me-publish-my-book-take-my-case-to-the-supreme-court-and-get-my-son-back

 

(still doesn't mention his possession of >15 capacity magazines...)