Court: NJ man can argue he carried a gun because police wouldn't protect him

Court: NJ man can argue he carried a gun because police wouldn't protect him
(AP Photo/David J. Phillip)

According to a state appellate court, a New Jersey man arrested and charged with illegally carrying a firearm should have been allowed to make the case that he carried a firearm for self-defense without a license only because police failed to protect him after he worked as a cooperating witness.

The details of the case go back to at least 2015, when the then-21-year-old defendant was pulled over in a traffic stop and was found in possession of a loaded pistol. The defendant originally planned on using a “necessity” defense but the trial judge ruled against him, so he ended up taking a plea bargain instead; eight years in prison with four years suspended.

The defendant appealed, however, and last week an appellate court largely ruled in his favor. The court said that while the original traffic stop that led to the discovery of the gun was valid, the defendant still should have been able to raise his necessity defense at trial, noting that after cooperating with police in an earlier investigation (including wearing a wire), the defendant had been assaulted on two separate occasions as well as having shots fired at him; incidents which the defendant had reported to authorities with no real response.

The court took issue with the barring of the necessity defense, which allows defendants to argue that their conduct, while normally illegal, was necessary or justified in a limited instance – in this case, carrying a gun.

The decision says the man described his situation to a police detective: he’d helped police and prosecutors in a prior case and now people were “after him.”

After the two assaults and being fired upon, and moving, he sought help from a detective and the prosecutor from the case, but received no assistance. He told police he wanted to move out of state, but could not due to being on probation.

He then admitted obtaining the gun a few days prior and knew it was loaded with the bullet.

He had a plan, he told the detective interviewing him, that if confronted a fourth time, he’d fire the gun and flee.

The prosecutor overseeing the case had argued that the defendant did not have an “imminent and compelling” situation that would have allowed him to carry a firearm despite not having a concealed carry permit, but the appellate court disagreed; pointing to the services the defendant rendered to law enforcement that put him at risk of reprisal.

The man wore a wire for police. “By doing so, he assisted police in performing their duty to protect the public. Through no fault of his own, his cooperation with the police led to him being beaten up twice and fired upon in his own community,” the decision said.

“Defendant was acutely aware that other individuals in the community wanted to hurt or kill him. We find more than sufficient evidence … to conclude that the threat to defendant was ‘imminent and compelling,’ and raised a reasonable expectation in the defendant that he would suffer physical injury, if not death,” the decision went on.

The defendant’s, “plea to law enforcement for assistance went unanswered. He tried to move out of state to avoid the threat to his life, however he was unable to do so. Defendant also changed his local residence to avoid encounters with his attackers, which didn’t work, as he was attacked outside his new home.”

“Consequently,” it said, “he faced a crisis with no opportunity to avoid repeated assaults until he was severely injured or killed.”

While this case doesn’t directly implicate New Jersey’s now discredited “may issue” concealed carry laws, it’s still an important reminder of the fact that your safety is ultimately your responsibility, and leaving it in the hands of the state is a bad idea. In this particular case the defendant may not have had a choice given his past criminal history and his status as a probationer. Legally buying a firearm was an impossibility, but so was moving to another state where he could have a fresh start. Instead, the powers that be were apparently content with letting the untenable situation play out, even if it resulted in the death of a former cooperating witness.

Sadly, New Jersey treats even law-abiding gun owners as if they were the violent criminals. There is no right to keep and bear arms enshrined in the state constitution, and despite the HellerMcDonald, and Bruen decisions the gun laws in the state still start with the presumption that you can’t own or carry a gun unless you first satisfy the unreasonable (and unconstitutional) demands of authorities by navigating a maze of bureaucratic red tape.

There’s some genuine hope that is all starting to change, especially now that we’re seeing the first post-Bruen carry permits being issued. New Jersey still has a long way to go before the right of the people to keep and bear arms is truly recognized, but this particular decision from the state’s court of appeals is a good step towards the courts acknowledging our right to protect ourselves. Unfortunately, with New Jersey’s lawmakers still making plans to massively resist the exercise of that right our fight is far from over, but at least we’re on the right side of history, the Constitution, and the human right of self-defense.