Brian Aitken’s Mistake

An outrageous gun prosecution in New Jersey

Sue Aitken called the police because she was worried about her son Brian. She now lives with the guilt of knowing her phone call is the reason Brian wound up sitting in a New Jersey prison. If it weren’t for a commutation of his sentence from the governor’s mansion, he would be stuck there for the next seven years.

Aitken was sentenced in August for felony possession of a handgun. Before his arrest, Aitken, the owner of a media consulting business, had no criminal record. By all appearances he made a good-faith effort to comply with the stringent New Jersey gun laws that eventually proved his undoing. Even the jurors who convicted him seem to have been looking for a reason to acquit Aitken. But the judge gave them little choice.

Aitken, born and raised in New Jersey, moved to Colorado several years ago. In Colorado he married the woman who is now his ex-wife, who was also originally from New Jersey. The two had a son together. When the marriage dissolved, Aitken’s wife and infant son moved back to New Jersey. Aitken then also moved back to be closer to his son. Beginning in late 2008, he took the first of several trips between the two states, a process that involved selling his house in Colorado, moving his possessions across the country, and finding a job and new residence. Until he could find an apartment, he stored his belongings at his parents’ home in Burlington County, New Jersey.

In December 2008, Aitken made a final trip back to Colorado to collect the last of his possessions, including three handguns he had legally purchased in Colorado—transactions that required him to pass a federal background check. Before leaving Colorado, Aitken researched and printed out New Jersey and federal gun laws to be sure he moved his firearms legally. Richard Gilbert, Aitken’s trial attorney, says Aitken also called New Jersey State Police to get advice on how to legally transport his guns, although Burlington County Superior Court Judge James Morley didn’t allow testimony about that phone call at Aitken’s trial.

Aitken’s legal troubles began in January 2009, when he drove to his parents’ house to pick up some of his belongings. He had grown distraught over tensions with his ex-wife, who according to Aitken had refused to let him see his son. When Aitken visited his parents’ house, his mother grew worried about his mental state and called 911. When police arrived at her home, Sue Aitken told them her concerns, and they called Brian, who was then en route to his new apartment in Hoboken, on his cell phone. They asked him to turn around and come back to his parents’ house. He complied.

It was there that the police confronted Aitken. Although they determined he wasn’t a threat to himself or anyone else, they searched his car, where they found his handguns—locked, unloaded, and stored in the trunk, as federal and New Jersey law require for guns in transport. The police arrested Aitken anyway, charging him with unlawful possession of a weapon.

New Jersey gun buyers must go through a laborious process to obtain a “purchaser’s permit.” But that permit doesn’t allow you to possess a gun. A few select groups of people, mostly off-duty police officers and security personnel, can obtain carry permits. But anyone else with a gun is presumed to be violating state law and must defend himself by claiming one of the state’s exemptions. The process effectively makes New Jersey gun owners guilty until they prove themselves innocent.

The exemptions allow New Jersey residents to have guns in their homes, while hunting or at a shooting range, while traveling to or from hunting grounds or a shooting range, and when traveling between residences. Aitken claimed he was moving between residences, and there is strong evidence he was. Sue Aitken testified that her son was moving his belongings from her house to his new home. So did Aitken’s roommate. One of the police officers at the scene testified that Aitken’s car was filled with personal belongings.

Yet Morley wouldn’t allow Aitken to claim the exemption for transporting guns between residences. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren’t comfortable convicting Aitken. The judge refused to answer all three times.

In response to a query about why Aitken wasn’t granted the moving exception, the Burlington County Prosecutor’s Office replied via email, “There was no evidence produced at the trial by the defendant that warranted such a defense.” Gilbert, Aitken’s lawyer, says that isn’t true. “We put on plenty of evidence that Brian was moving,” he says, “including testimony from his mother, his roommate, even the police officer who arrested him.”

In a telephone interview, Morley (who lost his job when Gov. Chris Christie declined to reappoint him in June because of rulings in unrelated cases) says he didn’t allow the jury to consider the moving exception because “it wasn’t relevant.” Morley adds: “There was no evidence that Mr. Aitken was moving. He was trying to argue that the law should give him this broad window extending over several weeks to justify driving around with guns in his car. There was also some evidence that Mr. Aitken wasn’t moving at all when he was arrested, but had stored the guns in his car because his roommate was throwing a party, and he didn’t want the guns in the apartment while guests were there drinking.”

Evan Nappen, who is representing Aitken in his appeal, says the story about the party came from a faulty police report. In any case, Nappen notes, it was not Morley’s job to decide whether Aitken was moving. “That’s a question of fact, not law, and questions of fact are supposed to be determined by the jury,” he says. “The judge is supposed to instruct the jury on the law, and in this case he refused to let them even hear it. But besides that, for him to say there was no evidence presented that Brian was moving just isn’t true.”

Without the exception, the jury’s job was easy. In New Jersey, possession of a firearm without a permit is a felony, punishable by a mandatory minimum sentence of five years in prison and a maximum of 10. Aitken was convicted and sentenced to seven.

The prosecutors had some discretion here. They could have decided that Aitken plausibly thought he qualified for the moving exception, or that it wouldn’t be in the interest of justice to charge him with a felony punishable by five to 10 years in prison. There is no evidence that Aitken threatened anyone with his guns or intended to use them for any nefarious purpose. Even the version of events least favorable to Aitken—that he put the guns in his trunk to keep them away from party guests who might have been drinking—shows him to be a responsible and conscientious gun owner. Morley acknowledges as much. “I can see the point that taking the guns away from the party might have been the responsible thing to do,” he says. But he adds that still wouldn’t entitle Aitken to the moving exception.

There’s a happy ending: On December 20, Gov. Christie commuted Aitken’s sentence. Aitken came home on December 23rd. His felony conviction still stands, but he will fight to clear his record through the appeals process.

It’s good that Christie intervened, but it’s a sad state of affairs that he had to. Putting Brian Aitken in prison wouldn’t have made New Jersey any safer. It might, however, make some of the state’s residents think twice before calling the police, particularly if they own guns. It might even make some New Jersey gun owners wonder if they have more to fear from the state’s ridiculous laws and overly aggressive cops and prosecutors than they do from criminals. Given what happened to Aitken, those fears wouldn’t be unfounded. 

Radley Balko (rbalko@reason.com) is a senior editor at reason.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Suki||

    Hi reason.

  • Fist of Etiquette||

    There was no evidence that Mr. Aitken was moving.

    Thank God the jurors weren't allowed to determine that for themselves.

  • West Texas||

    This kind of story makes my head explode. Not just because this guy unnecessarily went to prison, but even more because a bunch of ignoramuses in state government put such stupid laws in place in some misguided opinion that it would make New Jersey "safe".

  • Realist||

    You mean you didn't know this country is full of shit for brains?

  • rather||

    I saw his interview and he spoke of the judge's annoyance of his pursuit of pre-trial publicity-the gods will not be mocked

  • rather||

    Oh and good morning helle. How's your head?

    My new post for the Koche boys Lucy/5 cents gratis advice

  • JOhnny MAckson||

    Oh WOW! I think I'm going to need some mouth-to-ass resuscitation. LOL

    Jess
    www.anymouse.com

  • rather ||

    Fuck off anonbot-I told you I'm not interested in your hard drive

  • one of the a'holes||

    ... you gave head to helle.. good on ya.

  • Mr Whipple©®™||

    There was also some evidence that Mr. Aitken wasn’t moving at all when he was arrested, but had stored the guns in his car because his roommate was throwing a party, and he didn’t want the guns in the apartment while guests were there drinking.”

    And that's a bad thing because.....sounds to me like he was being responsible

    In New Jersey, possession of a firearm without a permit is a felony, punishable by a mandatory minimum sentence of five years in prison and a maximum of 10. Aitken was convicted and sentenced to seven.

    That's bullshit. A guy I know, we won't say how I know him, was caught with 4 very illegal guns in a car. He plea bargained the case to a 364 days. In NJ, that's County Jail time, and he will most likely be released on parole in about 2-3 months. He even got "time on the street" between his guilty plea and his sentencing, which was about 4 months.

    But, it's the same old story. If you know how to "work the system", you can get off easy. If you try to "fight the system" they will fuck you any way they can.

  • rather ||

    guy I know, we won't say how I know him,

    Do you call him daddy?

  • Mr Whipple©®™||

    No, I call him Snowman.

  • Snowman||

    Hey Falcon!

  • sarcasmic||

    A friend of mine got popped for OUI after hitting a car. He blew a .16 which is aggravated in this state. He found a lawyer who is personal friends with the DA, paid him four grand, and magically the charges were dismissed.

    Had he not had four grand sitting around he would be in jail.

    Of the people lawyers, by the people lawyers, and for the people lawyers.

  • ||

    I know the opposite story.

    A friend was meeting a girl at the bar. He had had a drink and was waiting for her when she called the cell and asked him to meet her at a nearby bar instead. He got pulled over for an out-of-commission tail-light. Then he blew just over a .08. Now he owed $thousands and has a permanent record.

  • ||

    Conspiracy-nut that I am....I gotta wonder how well your friend knew this girl and what, if any, connections to the local LEO she had.

  • West Texas||

    And that's a bad thing because.....sounds to me like he was being responsible

    And if someone had been shot during the party, they also would have fried his ass.

    The correct answer therefore, according to New Jersey lawmakers, is not to own guns in the first place. Because they're icky.

  • Snowman||

    Hey Bandit, you got your ears on?

  • ||

    Wait till I get my hands on you, you sumbitch.

  • Brandon Magoon||

    This country needs a pro democracy movement.

  • ||

    No more democracy! The will of the majority in NJ got those strict gun laws in place. We need adherence to the Constitution and nothing less.

  • Heroic Mulatto||

    In a sane and just world, James Morley would be dragged out into a public space and horsewhipped until he lost control of his bodily functions.

  • BakedPenguin||

    Yeah, it was essentially the judge deciding that Aitken should be put in prison. Someone above commented on the judge getting pissed off about pre-trial publicity by Aitken - which sounds like the Siobhan Reynolds case J Sullum blogged about yesterday.

  • rather ||

    t'oublie dejà ;-)

  • ||

    In a sane and just world, James Morley would be dragged out into a public space and horsewhipped until he lost control of his bodily functions.

    My hero!

  • ||

    And in a sane world, the jury would have said "fuck you judge, if you wont answer our questions we're not going to convict."

  • ||

    This^^^.
    How many jurors did it take to convict? There wasn't one (if needing a unanimous decision) juror that said, "Hey, this is fishy. I'm not voting guilty when the judge won't even let us see half the evidence."??

  • Todd Frye||

    I can think of 12 people who seriously need to read some literature from http://wwww.fija.org/

    And dear Reason, PLEASE drop this shitty Facebook code. Some of us don't operate on dual-core giga-jiggawatt supercomputer monstrosities.

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  • Amakudari||

    Also, if you use Firefox and have Adblock, you can try to block the Facebook and Twitter widgets.

  • Gray Ghost||

    If you coded "Reasonable", then thank you. The app works seamlessly and makes this site much more appealing.

  • Rther||

    Thanking someone for incifing software for blogwhoring while he's blogwhoring. Hmm, that's like a libertarian taking a scholarship from a KKK recruiter and professing his belief in natural rights

  • Rther||

    On second thought, that makes Amakudari this months winner of the Ayn Rand my name is Coooper too and I need gubment money award

  • ||

    It's not blogwhoring when it's directly related to the original post and is helpful. However, your very existence is a blight upon the earth and a tear in your father's eyes; not because he pities you, but because he's ashamed for having conceived you.

    And your blog is worse than that.

  • ||

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  • rather||

    Duke of Douchebaggery, or Count of Cunt WTF, the dullness of your mind bores me

  • Amakudari||

    Thanks, I appreciate it.

  • rather||

    does the KKK have a chapter in Japan? Awkward.

  • ||

    One presumes that the so-dear Judge is a lawyer. Has complaining to the state bar's ethics board been considered? Probably wouldn't accomplish much, but the case HAS had lots of local publicity. It's at least remotely possible they's punish the man in the name of political expedience.

  • ||

    Well, at least Brian Aitken had the ACLU on his side.

  • Christina||

    The lesson is, don't talk to cops, and for damn sure don't let them search your vehicle without a warrant.

  • CaptainSmartass||

    Bing bing bing!

  • Whappan?||

    I don't believe he consented to the search.

  • Christina||

    Maybe, but he sure as shootin' shouldn't have driven to his mom's house to answer the cops' questions. Don't talk to cops.

    http://www.youtube.com/watch?v=6wXkI4t7nuc

  • rather ||

    Not only were the guns locked, unloaded, and stored in the trunk, they were under his personal belongings. IIRC, the police officer had to spend a lot of time finding them

    BTW, this judge is famous for the police officer 'dating' a cow case-it was consensual and he was let-off.

  • robc||

    Even the jurors who convicted him seem to have been looking for a reason to acquit Aitken. But the judge gave them little choice.

    If only someone had been handing out jury nullification pamphlets on the courthouse steps.

  • A Guy||

    I did this at Jury Duty one time...everyone at my table was like, "WTF is Jury Nullification?". So, I explained.... "You can do that?"

    People are tards.

  • ||

    Government controlled schools, as in why people don't know what jury nullification is.

    More problematic is that every state constitution as a matter of course should make clear that jury nullification is the right of the people. Their right against an overreaching government, and then state legislatures need to make appropriate laws so that judges cannot undermine this right, and MUST inform all juries of this basic political right.

    Unfortunately people have come to see sitting on a jury as working for the government, rather than the people insuring the government does not go beyond it's limits.

  • omg||

    Did you nullify the case in question? I'm wondering what the shitstorm resulting from that was if you did.

  • Fat Crack Ho||

    Wow, and you didn't get tossed from the jury and/or charged with jury tampering?

    Good on ya for doing that, though.

  • ChicagoSucks||

    Didn't Christie kick this judge off the bench?

  • Barely Suppressed Rage||

    RTFA - yes.

  • ||

    Wooow! God help any of us who should ever have to face the capricious, arbitrary judicial system. At least this judge has been thrown off the bench.

  • Ray||

    "Richard Gilbert, Aitken’s trial attorney, says Aitken also called New Jersey State Police to get advice on how to legally transport his guns, although Burlington County Superior Court Judge James Morley didn’t allow testimony about that phone call at Aitken’s trial."

    Can't let the evidence stand in the way of keeping our kids safe. I mean, think of the kids!!

  • Gregory Smith||

    "Gun control? It's the best thing you can do for crooks and gangsters. I want you to have nothing. If I'm a bad guy, I'm always gonna have a gun. Safety locks? You will pull the trigger with a lock on, and I'll pull the trigger. We'll see who wins."
    — Sammy "the Bull" Gravano

    Liberal Media blames America for Gun Crime in Mexico.
    http://libertarians4freedom.bl.....urder.html

  • Old Mexican||

    There's only ONE reason - ONE - for imposing gun controls in a country:

    So people cannot defend themselves from government, or from whoever takes over government. An unarmed population is a vulnerable population, this being the result always:

    http://www.tallarmeniantale.co.....r-big-.JPG

  • ||

    Yet another case where a consideration of whether or not it would be appropriate to form a mob, go down to the courthouse, pull Judge Morley from the bench, take him out into the public square, tar and feather him, and ride him out of town on a rail.

  • ||

    ...is appropriate.

  • ||

    make that "...a good idea."

  • hostile juror||

    "Without the exception, the jury’s job was easy."

    Yeah. They should have ignored the law, regardless of whether Aitken was moving.

  • ||

    I'd really like to see some interviews with the jurors. Any chance of that, Radley? Or has the judge forbidden them from talking about it? (Even if he has, fuck him. He's been canned by the fat man anyway.)

  • ||

    Wow, OK that makes a whole lot of sense dude.

    complete-privacy.eu.tc

  • Old Mexican||

    Yet Morley wouldn’t allow Aitken to claim the exemption for transporting guns between residences. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren’t comfortable convicting Aitken. The judge refused to answer all three times.


    That should have been grounds for acquittal - the jury was derelict on their duty to ponder the evidence and the facts, and a clear fact was that the judge was NOT forthcoming on a key judicial exemption for carrying firearms in NJ. That should have raised red flags all over in the minds of reasonable, level-headed people. The jurors asked THREE TIMES and the THREE TIMES they were rebuffed by the arrogant judge. Why then did they decide to convict this person? They became as guilty as the judge in committing an injustice.

  • Young GerMexican||

    Old Mex, you're giving the jurors far too much credit. The people of NJ are scared of the law....that judge was GOD to most of them. One shall not questing the edict of GOD himself!

  • ||

    Yes, they were probably intimidated by an inferred threat of contempt and/or jail time.

  • ||

    What would have happened if a juror had happened to be aware of the exemptions? Would that juror be forbidden to take that knowledge into account?

    As you can probably tell, I've never done jury duty. When the jury gives its verdict does it have to explain its decision to the judge? If so that would strike me as making the jury useless since the judge won't like their verdict unless it agrees with his and he will thus find all of their explanations "wrong". If not, couldn't a jury member just say "no, I won't vote to convict, and that's the end of it"?

  • ||

    Generally, no, jurors aren't obligated to explain themselves to judges.

  • Young GerMexican||

    questing = question

  • ||

    By reading this, my inference is that it's legal to purchase a gun in New Jersey but illegal to own one.

    That place is more screwed up than I imagined, even after living there four years.

  • Barely Suppressed Rage||

    No, it's legal to purchase (if you first get a firearms purchasers identification card, which in itself can take weeks, depending on how the local cops are where you live), and it's legal to own them. What can be problematic is transporting a gun around in your car. The law in NJ makes it the default position that it's illegal to transport a firearm. The law then provides a few exceptions - such as you're moving from one residence to another (which is what Aitken was doing), or you're going to the shooting range or back, or you're going to the gunsmith or back, etc. But you can't just have a gun in your car unless you meet one of the exclusions.

    I regularly thank the deity that I left NJ for VA. VA has its problems, but it's a damn sight better than NJ in so many ways - gun rights being only one (but, for me, quite a significant one).

    I've got a gun in my truck right now, and carry it back and forth to work regularly.

  • David||

    Being responsible in ways disallowed by the specific law you broke should be an affirmative defense against this type of charge (regulatory BS, not just guns).

  • CE||

    Even the jurors who convicted him seem to have been looking for a reason to acquit Aitken. But the judge gave them little choice.

    Jurors always have a choice.
    So do subjects.

  • Christ on a Cracker||

    So, how to the good folk of NJ go to the gun range for practice, safety courses and the like?

  • Barely Suppressed Rage||

    See my reply at 1:09, above.

  • toddb||

    "There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, and once you understand it, you'll be much easier to deal with."

  • ||

    The amazing thing here is that possession of a firearm without a permit is a felony. Wrong in so many ways, but even accepting that a right can somehow be considered a privilege whereby we need the permit, at most the appropriate punishment would be a minor civil fine, not a criminal one.

  • ||

    The amazing thing here is that possession of a firearm without a permit is a felony.

    But of course, that doesn't infringe on the right to keep and bear arms, so its perfectly permissible in the Land of the Free and Home of the Brave.

  • ||

    I realize you're being sarcastic, but nonetheless does that mean that in order to communicate with others I first need a permit, after all I could slander someone or commit libel? However, it's only after the fact that harm (supposedly) has been done that one is punished.

    Then we have the first National Firearms Act, which though it was eventually ruled against as unconstitutional, nonetheless proves the point that the government being allowed to regulate rights can be harmful to those rights.

  • ||

    This case is one example of why the liberals' talking point that there's no reason to oppose gun control since the Heller decision is so wrong. Yes, in theory the state can't pass a law that says "gun ownership is totally banned". But nightmares like this can still happen even with your "few reasonable" gun laws.

    Do you antigunners really think that Mr. Aitken's treatment was reasonable?

  • ||

    A right suppressed, encumbered or otherwise regulated to a meaningless state is a right denied. The NJ firearms laws are positivley draconian and possibly unconstitutional. Unless you live in Camden, where there is no control, period.

    My experiences with the Landfill State (NJ) were extremely unpleasant and indicative of what an oligarchial dictatorship would look like in the US. New York State looks positivley libertarian (NOT!) compared to NJ.

  • ||

    why did he allow the officers to search his vehicle? Doesn't sound like that had PC to search as they determined that he was not a hazard to himself.

  • Johnny Baptist||

    I saw the transcripts... the Judge and the Prosecutor conceded there was no probably cause. Aitken allowed the search under threat of arreast (let us search or we're throwing you in jail until we get a warrant). When this came up the Judge acknowledged that they wouldn't have even been able to get a warrant under those circumstances.

  • ||

    If a dog eats a bone...does the bone eat the dog? And if the bone eats the dog, what becomes of the bone?

  • ||

    I'm going to quit buying your magazine if you're going to put half the articles in it up on your website, which I can read for free!

  • ||

    Moral of the story: Stay the hell out of New Jersey! Or sell anything that could be a "weapon" before you mover there. Problem avoided. Yes he would not be close to his son if he never moved back but the "gun" issue will never go away now.

    The Liberals that "make us safe" want to force this type a decision

    Who is John Gault ?

  • Hillary||

    There go those mandatory minimum sentences trying to destroy people's lives. Are we really that incapable of analyzing the facts ourselves and deciding appropriate punishments? It's our money, shouldn't we decide if it is worth it to incarcerate someone?

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  • Johnny Baptist||

    Where's the prosecutor in this case? John Brennan? Has he been ousted with Morley, too?

  • Robert||

    I'm always nosy for tangential details in a story like this. In this one, I wonder how the former Mr. & Mrs. Aitken are doing these days, like whether they're friends. I never read about any of that in the coverage.

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