Gun Control: The Stark Reality for NY and NJ Residents

GunOn December 9, 2015, Tatiana Duva-Rodriguez, who is licensed to carry a concealed weapon, discharged her sidearm at a shoplifters’ getaway car at a Home Depot parking lot in Detroit, Michigan. She saw a store security guard chasing a suspect who was pushing a cart filled with merchandise who then entered a getaway car and began to speed off. Duva-Rodriguez then fired her weapon at the car’s wheel thereby impeding the suspects escape. Duva-Rodriguez later pled no-contest to reckless discharge of firearm and received a probationary sentence mandating that her license to carry to a concealed weapon be revoked.

This incidence raises the specter of gun control in the United States. Gun control laws vary widely state by state. For example, New York and New Jersey have some of the strictest gun control laws in the country. New Jersey enacted the “Graves Act” N.J.S.A. 2C:43-6(C) which imposes mandatory minimum state prison sentences for the unlawful possession of a firearm. New York has a similar a law. These laws make defending an individual charged with gun possession in these states a difficult task.

Nonetheless, these cases are not black and white. A sound defense in these cases is to file a motion to suppress the evidence, i.e. the gun, through constitutional violations made by law enforcement. Law enforcement has tightened its procedures in these cases making it difficult to suppress the weapon, yet any motion with some merit may sway the prosecutor into dropping the gun charge in exchange for a plea to a non-weapons related offense. Additionally, the issue of who possesses the weaspon is often the most heavily litigated in these cases. For example, a typical scenario involves a routine traffic stop and search which reveals an unlicensed firearm in the car with four individuals in it. All four individuals could be charged with constructive possession of the weapon. The case then turns of each individual’s knowledge and intent to possess the weapon. Issues such as the location of the weapon, its proximity to the individual, and the individual’s knowledge of the weapon would all be relevant to plea negotiations or trial.

The situation involving Ms. Duva-Rodriguez, who had license to carry a concealed weapon, exemplifies the disparity on how the law varies from state to state. Individuals living in either New Jersey or New York can apply for a concealed weapons permits in those states, but they are rarely granted to private citizens, the theory being the fear of incidents such as the one that occurred in Ms. Duva-Rodriguez’s case. The danger of a private citizen exacting vigilante justice in a crowed parking lot or mall in states with large urban areas is too great a risk given the large urban centers in these states. For this reason, the law in these states will only trend towards making private gun ownership more difficult.

In sum, from a criminal defense standpoint, the need to stay current on the ever-changing gun control laws is paramount. The case law in this area evolves rapidly as creative defense attorneys find loopholes and exceptions ground on constitutional principles; therefore, if you are a gun owner, it is important to continually familiarize yourself with your state’s law to avoid any legal repercussions.

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