New Jersey – NJ2AS’ Taser Victory: Separating Facts from Fear

New Jersey –-(Ammoland.com)- Following Caetano v. Massachusetts, a case which the United States Supreme Court unanimously vacated a Massachusetts conviction of a woman who carried a stun gun for self defense, in August of 2016, the New Jersey Second Amendment Society (NJ2AS) filed a lawsuit against the State of New Jersey challenging their outright ban on stun guns and tasers (electronic self-defense devices). Since 1985 stun guns and taser were completely banned from acquisition, possession, and carry in New Jersey.

On October 22, 2017, after over a year of legal battles, the ban was lifted and residents of New Jersey regained their right to acquire, possess, and carry an electronic self-defense device if one were to go by the letter of the relevant statutes. However, there is a complication because of the language in a case called State v. Kelly (it is important to note that State v. Kelly is a pre Heller decision from 1990). In the decision of this case, the judge said the following:

“Although defendant correctly argues that the circumstances surrounding the possession of an instrument must be considered in determining whether the possession is appropriate, defendant clearly admitted to possessing the carpet cutter as a weapon, not as a work-related instrument. As a matter of public policy, by criminalizing possession of weapons in anticipation of a future need for self-defense, the Legislature intended to keep instruments from being used as weapons. Hence, we hold that section 5d prohibits the possession of implements as weapons, even if possessed for precautionary purposes, except in situations of immediate and imminent danger.

Accordingly, the trial court’s instruction to the jury that “one may not arm himself or herself with a weapon in anticipation of a possible need to use that weapon” was correct under the circumstances of the case. Defendant’s possession of the weapon did not fall within the Harmon immediate danger exception.”

Under New Jersey’s weapons laws – beyond electronic self-defense devices- there’s a prohibition on daggers, slingshots, clubs, and stilettos, etc. Specifically, it says you cannot possess any of the aforementioned in New Jersey without an “explainable” or “manifestly appropriate” purpose in accordance with two areas of NJ law – 2C:39-5d and 2C:39-3e:

• 2C:39-3e. 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.
• 2C:39-5d. Other weapons. Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.

The Judge in our lawsuit’s case specifically states in his order: “The Second Amendment guarantees individuals the right to keep and bear arms for self-defense. Further, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (internal quotations an citations omitted).

In our opinion, this acknowledges that “self-defense” is a “manifestly appropriate” purpose for a stun gun or taser (and other weapons). But, since 2C:39-5d was not specifically addressed in our case, there is still a risk of being arrested and prosecuted. We do not think that such an attempt to prosecute would be successful in light of Heller, but we also understand that that is little comfort for the person who ends up being the test case.

Our opinion is that this decision is a home run. Not only did the Honorable Judge Shipp say it is herby ordered that the Second Amendment protects the right to keep and bear arms but it extends to all bearable arms. The judge used the term “self-defense” and “all bearable arms” so therefore self-defense is a manifestly appropriate purpose for possession of all bearable arms, even in NJ. The decision by the Judge, in our view, clearly indicates that self-defense is a manifestly appropriate purpose. This is a slam dunk. However, this does not mean that all of law enforcement and all prosecutors agree with us, and even if they did, that they would not test it at the expense of an innocent person. Because the judge did not specifically overrule Kelly, there is a risk.

You might be wondering why 2C:39-5d does not apply to firearms, or to pepper spray? Firearms are specifically addressed in 2C:39-5a, b and c. They may only be possessed with a permit or under one of the exemptions in 2C:39-5 et. sq. and 2C:39-6 et. sq. We all know the firearms exemptions, but there is also a specific exemption for pepper spray in 2C:39-6i(1)

i. (1) Nothing in N.J.S.2C:39-5 shall be construed to prevent any person who is 18 years of age or older and who has not been convicted of a crime, from possession for the purpose of personal self-defense of one pocket-sized device which contains and releases not more than three-quarters of an ounce of chemical substance not ordinarily capable of lethal use or of inflicting serious bodily injury, but rather, is intended to produce temporary physical discomfort or disability through being vaporized or otherwise dispensed in the air. Any person in possession of any device in violation of this subsection shall be deemed and adjudged to be a disorderly person, and upon conviction thereof, shall be punished by a fine of not less than $100. (emphasis added)

You may also be wondering why someone can carry a knife or some other weapon without fear of being arrested. To be clear, possession of anything that can be used as a weapon is not without risk. That risk is mitigated, however, by the fact that a knife has at least one manifestly appropriate purpose… opening packages, for example, whereas, a taser has but one purpose – self-defense – and as we will explain, that isn’t a valid reason under State v. Kelly.

You may have noticed that some people are trying to make a distinction between possessing a taser in the home vs. outside of the home. It is important to understand that the two NJ weapons laws that we are talking about here (listed above) are not subject to the exemptions that we have become accustomed to for firearms. If, for argument’s sake, the opinions that we have seen from other attorneys that this decision does not allow a person to carry a taser, that would include all means of possession. For tasers, possession is possession. There is no difference between inside the home, outside the home, unloaded in your trunk, etc. Those types of exemptions do not apply to tasers. Therefore, it is our opinion that such a view would turn this decision on its head. This is one of the reasons why we feel that, in the end, after we have cleared things up, which may or may not take another lawsuit, this decision will be seen and honored as allowing possession of tasers and stun guns inside and outside of the home for self-defense.

We cannot advise you that it is risk-free to possess a taser right now, however, if you decide that you are going to do so, there are ways to help protect yourself from being wrongfully arrested. It seems the Attorney General’s directive has not been received by many police departments and while NJ2AS contacted several departments, many were unaware of our legal victory and are still under the assumption that tasers and stun guns are illegal. We have prepared a packet that you can easily print at home and deliver to your police department to inform them of the changes in the law. It would be even better if you could send a copy to your police department through certified mail so you have a record of sending it and they will be officially put on notice (even though the Attorney General’s Directive does this). Please keep a copy of the certification return receipt and send us a copy by e-mail. Also, while New Jersey is adapting to their citizens having an ability to protect themselves, it would be wise to also keep a copy of our packet readily available in the event you are stopped and questioned. You can read our letter, the NJ Attorney General’s Directive, and Judge Shipp’s Consent Order here: Please click here to download our informational packet.

We are extremely proud of our victory. Our lawyers and leadership team fought hard for constitutional purchase and carry of tasers so innocent women, in fear for their lives, will not have to wait for permission slips from the government to protect themselves. We all know the story of Carol Bowne and her outcome. We have been told over and over to wait, don’t do anything yet. We have waited for years for those who are better funded to act. We will wait no longer. We have taken a giant step forward. We have made the historic achievement of getting a Federal Judge to state that, in NJ, the Second Amendment includes self-defense and applies to possession of all bearable arms.

Moving forward, this is a golden opportunity and it is sitting right here in black and white due to our lawsuit. Yes, they threw us a curveball, but we are not done, and we need your help and support to file more lawsuits and fight back! You can be part of the change by becoming a card-carrying member or donor by clicking here.

UPDATE: 12/01/2017

We received a copy of a letter from Senator Oroho and Assemblyman Space’s office. They asked the NJ Attorney General if self defense is an appropriate reason to carry a taser. The NJ Attorney General’s office responded with a cryptic letter and you can read their response by clicking here: Letter from NJ Attorney General’s office.

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About the New Jersey Second Amendment Society:

New Jersey Second Amendment Society – Our mission is to promote the free exercise of Second Amendment rights within the community and Legislature of New Jersey, to educate the community regarding the enjoyable, safe, and responsible use of firearms, and to engender a sense of camaraderie and fellowship among the members and their families. Visit: www.nj2as.com