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NJ Court: State Can’t Criminalize Possession of “Pencils” and Other Lawful Objects for Home Self-defense

Friday, June 16, 2017

NJ Court: State Can’t Criminalize Possession of “Pencils” and Other Lawful Objects for Home Self-defense

It is refreshing to finally see some common sense coming out of a court in NJ, as the state is notoriously known for its illogical and Draconian gun laws that do little more than make felons out of law-abiding gun owners.

Last week, the Supreme Court of New Jersey upheld the right to lawfully possess and hold a weapon for self-defense in the home, rejecting arguments advanced by the State that would treat a citizen like a criminal for simply answering an angry knock at his own door while holding an object that was legal to possess.

The case, Montalvo v. State, arose out of a commonplace neighborhood dispute. Daleckis, downstairs of Montalvo, banged on the ceiling to let Montalvo know he was upset about the noise from upstairs. Montalvo then knocked on the Daleckis front door, and, getting no response, threw a table off their shared porch, which he acknowledged was a “stupid” thing to do. Shortly after, Daleckis went to the Montalvo apartment to confront him over the broken table. Montalvo and his wife claimed Daleckis was not just knocking but angrily kicking and slamming on their door. Uncertain of what to expect, Montalvo took the precaution of picking up a machete – used in his work as a roofer and kept with other tools – before opening the door. In the exchange that followed, Daleckis said Montalvo pointed the machete at him, while Montalvo testified he held the machete down the entire time. Both agreed, though, that Montalvo never stepped outside of his own apartment.

By the time the police arrived, the quarrel had fizzled out (Daleckis ultimately refused to provide a statement to police). Montalvo was arrested on charges that included two weapon possession offenses. The first count, possession with a purpose to use the weapon unlawfully, requires an intent to use the weapon against another’s person or property. The second was a violation of N.J. Stat. Ann. § 2C:39-5(d) (knowingly possessing the machete “under circumstances not manifestly appropriate for such lawful uses as it may have”), which prohibits possession of a weapon other than a firearm where the defendant has not yet formed an intent to use the object as a weapon, but possesses it under circumstances in which it is likely to be so used. This second count became the focus of the litigation.

Because New Jersey law defines a “weapon” as “anything readily capable of lethal use or inflicting serious bodily injury,” Section 2C:39-5(d) criminalizes possession of ordinarily lawful objects (scissors, razors, kitchen knives) in circumstances where the possession is not “manifestly appropriate” for lawful use, regardless of the actual intent of the possessor. This offense is a fourth degree crime, punishable by between three and five years’ incarceration on conviction.

At Montalvo’s trial, the model instructions to the jury directed that only three elements were necessary for a Section 2C:39-5(d) conviction: a weapon, possessed “knowingly,” in circumstances where a reasonable person would agree the object was likely to be used as a weapon. In response to the jury’s questions about self-defense, the judge advised that self-defense could not justify possession unless the defendant had armed himself as a “spontaneous” response to repel an immediate and compelling danger – anticipatory self-defense did not qualify. So instructed, the jury found Montalvo guilty of the Section 2C:39-5(d) offense but acquitted him on the first charge, and he was sentenced to 18 months in jail.

In his appeal, Montalvo argued the jury had been misdirected on self-defense, and that his conviction criminalized the possession of an otherwise legal weapon in his home in violation of the Second Amendment. After an appellate court affirmed his conviction and sentence, Montalvo launched a further appeal to the state’s highest court, the Supreme Court of New Jersey. 

The Attorney General of New Jersey took the unusual step of filing a “friend of the court” brief in the appeal, arguing that, while citizens are entitled to possess lawful weapons in the home for self-defense, the State is concurrently authorized to regulate the manner in which these weapons are possessed. “Everyday objects, which are entirely lawful to possess in their own right, even a pencil, can be used as weapons. The Legislature did not issue a wholesale prohibition on such lawful objects, but rather sought to regulate only the circumstances under which such objects may be possessed.” (Emphasis added.) This brief, consistent with the submissions by the prosecution, claimed the Second Amendment could not apply because Montalvo’s “disproportionate” response, arming himself where there was no “actual threat,” exceeded the boundaries of the right of self-defense in the home. In furtherance of this extremely narrow interpretation, the Attorney General’s brief asked that the court modify the model jury instructions for use in future cases to clarify that weapons for active self-defense in the home could be used only if the person armed himself spontaneously to repel an immediate danger.

A unanimous Supreme Court of New Jersey rejected this outlandish approach as both unworkable and unsupported by U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago (extending to “all instruments that constitute bearable arms”).

Justice Fernandez-Vina, writing for the court, noted at the onset that the case did not demand “an extensive Second Amendment analysis. We need only observe that the Second Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense purposes.” Montalvo’s possession of the machete was lawful and it made no difference “whether his possession was for roofing or for self-defense because either would qualify as a lawful purpose.”

The interpretation of the law promoted by the State and the Attorney General was inconsistent with the very core of this fundamental right. The right to possess a weapon in the home for self-defense would be almost useless “if one were required to keep the weapon out-of-hand, picking it up only ‘spontaneously’” when and if the circumstances made clear an immediate danger existed. Calibrating the right so exactly to the presence of an immediate danger made it impossible to hold a weapon in anticipation of such potential, but not yet imminent, threats. This did not mean Montalvo could threaten the use of a machete merely for the purpose of inciting fear in another, but it did mean he could answer his door simply holding a weapon.

The court reversed the judgment below confirming the conviction and remanded the case; at the same time, the court directed a review and revision of the jury charge for Section 2C:39-5(d) offenses. The revision language, as suggested by the court, would clarify that possession of a lawful weapon in one’s home could not form the basis of a conviction under Section 2C:39-5(d); that a person may possess, in the home, objects that serve multiple lawful purposes, including the purpose of anticipatory self-defense; and that a person who responds to the door of his home with a concealed weapon that threatens no one acts within the bounds of the law.

Although we welcome this common sense ruling by the Supreme Court of New Jersey, this case affords yet another illustration of the importance of the courts and how dependent, in practice, the exercise of Second Amendment rights is on what any particular court considers to be the boundaries of the law. Since the Supreme Court’s rulings in Heller and McDonald, there have been all too many judges that have concluded the right to keep and bear arms is some kind of second-class constitutional right.

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