Statement of Scott L. Bach In Opposition to S-1304

03/06/08 Meeting of the NJ Senate Law & Public Safety Committee

S1304 is a commendable effort to get tougher on criminals, but you need to know that it will also have the unintended consequence of sending good people to jail for a very, very long time.

I can say this with certainty because good people are already being prosecuted right now under current law, as third degree criminals.  Bumping the penalty to second degree, without building in protections for this class of honest persons, ensures that they will actually do hard time.

These are the otherwise-law-abiding citizens that the state turned into criminals literally overnight, with the stroke of a pen, back in 1990.  The so-called “Assault Firearms” ban criminalized the possession of an entire class of commonly owned semi-automatic firearms, including .22 target rifles, popular hunting shotguns, and even originally, bb guns.   

The Ban created a limited window for those who had legally purchased these guns to dispose of them, register them, or render them inoperable.  That window closed on May 30, 1991.  For those who missed that window, the state now offers them no way out.  There is no legal way for them to continue to possess these firearms, yet it is also illegal to transport them, to dispose of them, to sell them, to render them inoperable, nor can they now be registered, even though they were perfectly legal to own and possess when they were first purchased.

To make matters worse, the Ban is unclear about precisely which firearms are prohibited, so many otherwise law abiding citizens are unaware that guns they legally purchased are now illegal.  Superior Court Judge Michael Farren criticized the Ban’s vagueness in a 1996 case:

“The defendant is charged with possessing a semi-automatic rifle that is allegedly 'substantially identical' to a list of 37 weapons from the four corners of the globe. How is this defendant or any defendant to know if his firearm is 'substantially identical' unless he is intimately familiar with the nomenclature of the other 37 weapons? This is an impossibility and a task which the law cannot require."

But not all judges recognize this.  In one of the worst applications of the Ban, State v. Pelleteri, an otherwise law abiding citizen was convicted and imprisoned for possession of a common .22 caliber target rifle. The court turned a deaf ear on this otherwise law abiding citizen, holding “When dealing with guns, the citizen acts at his peril.”

These are not isolated cases.  I get many calls for help from otherwise law abiding citizens who have been victimized in this way, and these kinds of laws have created a virtual cottage industry for defense lawyers.

Now, I want to be absolutely clear.  No one wants to lock up violent criminals and throw away the key more than honest gun owners.  And I’m not in any way suggesting that the severe penalty of S1304 shouldn’t apply to violent criminals who use firearms.  What I am suggesting is that the bill fails to address the fact that an entire class of non-criminals will become subject to the same penalty, and that needs to be addressed. 

Someone who bought a gun legally yesterday, that has been made illegal today, and may not even know it, should not be facing 10 years in jail tomorrow. Nor do I think that is your intent.

There are any number of ways in which this problem might easily be resolved without impacting the true crime-fighting purpose of S1304.  They include re-opening the compliance window, and creating safe harbors for persons who legally acquired these firearms and are not engaged in criminal activity. 

We would be happy to dialogue with you about those solutions.  In the meanwhile, I urge you to vote no, or to table the bill.