On Tuesday, Superior Court Judge Michael Donio declined to dismiss a case for unlawful possession of a firearm against Philadelphia resident Shaneen Allen. Allen was arrested during a traffic stop last October after she volunteered to the officer that she had a firearm in her car. She mistakenly believed her Pennsylvania license to carry firearms was valid in New Jersey. This was hardly an unreasonable assumption, considering that Pennsylvania concealed carry licensees can lawfully carry in over 30 other states.
Nevertheless, Judge Donio sided with prosecutors in deciding that Allen was not covered by a 180-day gun amnesty period for the surrender of firearms in New Jersey that happened to be occurring at the time of her arrest. The judge also refused to overrule the Atlantic County Prosecutor’s decision to deny Allen a pre-trial intervention program that could have helped her avoid a criminal conviction.
New Jersey offers first-time offenders the opportunity to avoid criminal adjudications through the Pretrial Intervention Program (PTI). The stated purpose of PTI is to “render early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior.” Allen is a 27-year-old mother of two with no criminal record who was employed as a healthcare worker at the time of her arrest. She obtained her concealed carry permit after she herself was twice the victim of robbery. The Atlantic County prosecutor has not alleged Allen possessed the firearm for criminal purposes or with evil intent. Indeed, the Atlantic County PTI Director agreed to accept Allen into the PTI program.
Nevertheless, the Atlantic County Prosecutor’s Office refused to grant Allen’s request for PTI. Instead, they are prosecuting her for a felony which is punishable by a minimum of three years in prison, with no chance for parole. The maximum potential sentence is 10 years imprisonment. According to Assistant Prosecutor Deborah Hay, Allen’s prosecution could serve as a “deterrent,” and the alleged offense was “too serious to warrant divergence” into PTI.
Allen is now planning on going to trial, which is scheduled for October 6th. Her attorney, Evan Nappen, has indicated that Allen plans to make a defense based on ignorance or mistake of law. Failing that, Allen would have to rely on jurors to recognize the injustice of her prosecution, or if found guilty, on Governor Chris Christie (R) to pardon her or commute her sentence. Christie had previously intervened in the case of Brian Aitken, who was also prosecuted on a technical violation of a gun control statute and sentenced to seven years in prison.
Following the commutation of Aitken’s sentence, Chris W. Cox, Executive Director of NRA-ILA, emphasized the need for the New Jersey Legislature to revisit the state’s Draconian firearm regulations: “There is a serious need to reform New Jersey’s gun laws so that the full weight of the state’s law enforcement and legal system falls squarely on the shoulders of criminals, not on people like Brian Aitken.” Reacting to these repeated injustices, Assemblyman Ron Dancer (R-12) has introduced a bill that would give courts more options in adjudicating these types of gun cases.
NRA-backed legislation is also pending in Congress that would protect travelers who found themselves in the same circumstances as Shaneen Allen. The Right-to-Carry Reciprocity Act of 2013 (H.R. 2959) would require states that issue permits to their own residents (as does New Jersey, at least in limited cases) to provide full faith and credit to concealed carry permits issued by other states (please see related story). Allen’s case exemplifies why this law is needed and the type of person it is designed to protect. The Second Amendment right to bear arms means little in today’s increasingly mobile society when a person who has fully complied with the laws of her home state for carrying firearms becomes a felon simply for crossing a state boundary.
Legal theorists often described laws as fitting into one of two categories: malum in se or malum prohibitum. The distinction between the two was explained by the North Carolina Supreme Court in the 1905 case of State v. Horton: “An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community, whereas an act malum prohibitum is wrong only because made so by statute.” Laws that treat all carrying of firearms as presumptively criminal, without proof of bad intent, are malum prohibitum. The fact that the conduct which led to Allen’s arrest would have been legal in over two-thirds of U.S. states makes New Jersey an outlier amongst the “civilized community” of the rest of the nation.
Allen’s case illustrates an essential truth of gun control. No matter how its proponents attempt to justify it under the guise of “violence prevention,” “public safety,” or even “public health,” its primary purpose is to promote a social and political agenda. The same ruthless despotism that results in school officials berating a harmless child for a “zero tolerance” infraction until the boy wets his pants is reflected here in the attitude of the Atlantic County Prosecutor’s Office. Shaneen Allen caused no harm. By all accounts, she acted in good faith, unaware she was violating an unusual and totally arbitrary prohibition. Yet all that is irrelevant to the State of New Jersey, which is willing to ruin not just her life, but the life of her two young children, to demonstrate just how unwelcome firearms are in the state.
Decency and justice have so far failed Shaneen Allen. Let’s hope the jury system – or executive clemency, if necessary – succeed where common sense and prosecutorial discretion have failed.
Those wishing to donate to Shaneen Allen’s legal defense fund may visit this link to contribute: http://gogetfunding.com/project/shaneen-allen-legal-defense-fund.