Gun Control

Prosecutor Suddenly Wonders If Pennsylvania Gun Owner Deserves Prison for Driving Into New Jersey With a Pistol in Her Purse

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The Press of Atlantic City reports that Atlantic County Prosecutor Jim McClain, who until now has seemed determined to put Shaneen Allen behind bars for mistakenly thinking that her Pennsylvania carry permit allowed her to cross the border into New Jersey with a pistol in her purse, is having second thoughts. "I am presently in the process of reviewing our office's position on the appropriate resolution of this matter," McClain wrote in a recent letter to Superior Court Judge Michael Donio, who is overseeing Allen's case. Her trial, which was supposed to begin on October 6, has been rescheduled for two weeks later.

McClain has refused to approve Allen for a pretrial diversion program, even though all the evidence indicates that she broke the law by mistake. In particular, she would not be facing a mandatory minimum sentence of three and a half years had she not told the state trooper who pulled her over for a minor traffic infraction on the Atlantic City Expressway last October that she had a gun in her bag. McClain's possible change of heart probably has less to do with his nagging conscience than with the criticism his position has generated from people around the country who were appalled by his insistence that Allen, a single mother of two with no criminal record, belongs in prison.

The Press notes that McClain's predecessor and prosecutors in other counties have treated offenders in Allen's position much more leniently. Judge Donio also has shown mercy toward gun owners from other states who innocently run afoul of New Jersey's draconian gun laws:

Justin Brey, 26, had his gun on him at work in Pennsylvania — where he has a concealed carry permit — when his friend picked him up to take him to his surprise bachelor party destination in April 2013.

He didn't realize he would be crossing state lines, and when they got to Caesars Atlantic City, he put his gun in a drawer of the hotel — then left for home without it. By the time he returned for it, a maid had found it and police were called. Despite a plea deal calling for a three-year sentence with one year without parole, Donio gave Brey two years' probation….

"If you don't trust the judge enough to make the correct decisions, then don't appoint them to the bench," Donio said at Brey's sentencing. "These mandatory laws tie our hands, and in tying our hands, sometimes justice doesn't get served."

Even New Jersey legislators are having second thoughts about the sentences they mandated. The Press reports that bills introduced in both houses of the legislature would "allow for cases such as Allen's and to give judges more discretion in sentencing."

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  1. No, we need more felons by any means possible. Law and order!

  2. Its her fault that she isn’t a rich NFL player.

    1. Indeed – I read
      McClain’s possible change of heart probably has less to do with his nagging conscience than with the criticism his position has generated from people around the country who were appalled by his insistence that Allen, a single mother of two with no criminal record, belongs in prison.
      as missing the point that much of the criticism was that this guy let Ray Rice into diversion, but wants to throw this woman in prison. That could seriously arm a future political opponent with an easy issue.

    1. But I guess requiring a permit isn’t an infringement…and stuff.

      1. You can still bear arms if you get a permit, right? Therefore your right is not being infringed, so long as you ask permission and obey orders.

        1. Bow down to your imperial masters!

        2. I don’t see anything in the Constitution limiting how big the permit fee can be or how long the waiting period can last, so….

          You can still bear arms! You just have to remit the trillion dollar permit fee and wait the mandatory 1000 years!

        3. You can still bear arms get an abortion if you get a permit, right? Therefore your right is not being infringed, so long as you ask permission and obey orders.

          Funny how people’s standards on what constitutes “infringement” on a “right” changes, depending on their feelz.

      2. A shall issue permit is probably not infringement (at least by any judicial standard we are likely to see). “Shall not be infringed” is less restrictive on government than “congress shall make not law”.

        1. Except congress shall make no law only refers to congress. But shall not infringe doesn’t limit the body.

          Too many of our dusty old laws were written without appropriate commentary!

          1. Honestly, I think that is true. I really wish that the people writing the constitution had been more concerned with clarity and making their intentions explicit than with elegant and minimal phrasing. What is “due process”? Which “privileges and immunities”? It would have been a whole lot simpler if the second amendment had just said “people get to own and use guns” and the 14th said “the bill of rights applies to the states too now”.

            1. Doesn’t matter. The left will always win. When they don’t like what something means, then they change the meaning of some of the words. That way they don’t have to amend or change the text to pervert it to their liking.

              1. I still don’t see the left winning on guns. At least not nationally. Guns are popular and people vote on the issue.

                1. They’re still winning the long game. Every time they win a compromise they get to pile on one more restriction. Death by a thousand cuts.

                  1. Well, I choose to be optimistic. Some gun restrictions are actually moving in the other direction, toward more freedom (albeit slowly and with lots of resistance).

                2. I love guns. Half of my liberal friends love guns. And like 100% of my Republican friends like guns. So there’s 4 people!

            2. I really wish that the people writing the constitution had been more concerned with clarity and making their intentions explicit than with elegant and minimal phrasing.

              Nah. If they had just thrown a bunch more words at it, there would just be more opportunities to twist those words to support the Total State and its Masters.

              1. Yeah, I guess. But I still think that in some places it is unnecessarily poetic. And it isn’t necessarily more words that it needs. The 2nd is an especially good example. Why have the first clause at all? Why not just say that the right to keep and bear arms shall not be infringed without all of the militia stuff. I’m sure the militia stuff was a lot less confusing to most people at the time, but it is hard to see why it needs to be there at all. If it just said “people are allowed to keep and use weapons, including firearms”, it woudl be pretty hard to twist it to mean something else. Would certainly get rid of all the bullshit about “the militia” being some organ of the government.
                And the 14th too. Why not make it clear that the privileges and immunities include, but are not limited to, the first 8 amendments?

          2. Most of our dusty old laws were written with the idea that the people would be able to understand the meanings of words better than they actually do 200+ years later.

  3. I think we need less discretion for prosecutors (who use the threat of harsh sentences to coerce plea bargains) and more beatings. Start with the “law-n-order” types who show no mercy and proceed to the voters that elect them. Beatings for everybody!

  4. I’ve spotted the problem. People named things like Justin get fairer trials than people named things like Shaneen. Goddamn racism!

    1. What if, and I know this is a stretch, the states were forced to follow the Constitution?

      *gasp*

      1. Hmmm, do you mean their own state constitutions or the federal constitution? Or I guess it doesn’t matter after the 14th amendment? Is that the right one?

        1. My state’s constitution says something along the lines of “the right to keep and bear arms shall not be questioned,” yet you need a permit to carry concealed, and while it’s technically legal to open carry, doing so will get your piece confiscated and land you in jail for Disorderly Conduct or some other catchall.

          1. Gotcha! Sometimes I like to know because I think some state constitutions are not mirrored after the federal on this issue.

          2. So as I’m understanding it, you can’t question it but you can impose restrictions on the right to keep and bear arms.

        2. The one they must all live by.

          1. Doesn’t the federal bill of rights apply solely to the federal government? I mean, I assume the language in the Second Amendment that refers to a free state is in contrast to federal action against the state. It would seem to me that the state, in that context, would have the right to pass laws that made it less likely to be able to defend itself against the federal government. Or is that just a completely ignorant reading?

            1. 14th Amendment

              1. I know that’s how it has been interpreted, but it’s really hard to see how the 14th amendment overrules any of the other amendments, which I assume it would have to in order to change the way they operate. Or again, maybe I’m just totally ignorant of the law.

                1. The 14th amendment is where the federal constitution constrains what the states can do and defines who is a citizen. THe intention was clearly to make states recognize certain rights. As I mention above, I wish they had made it a bit more explicit which rights the states were obliged to protect.

            2. As you sort of note above, the 14th amendment means (or was supposed to mean, anyway) that the bill of rights generally applies to states. But only very recently has it begun to be applied to the 2nd amendment.

              1. Without the 2A the National Guard would have no weapons!

              2. The idea that the 14th amendment was supposed to mean that the bill of rights generally applies to states is rather controversial. One of the sponsors of the amendment (Sen. Howard) said that the Privileges or Immunities Clause extended the first eight amendments to the states, but that clause is not the vehicle by which the Bill of Rights has been held to be incorporated by the 14th Amendment. (The idea of reviving the PorI clause came up in the litigation over Chicago’s gun ban, but it really isn’t as good a vehicle for incorporation as it might appear at first glance (and as it appeared to Sen. Howard. No one would be satisfied with a legal regime that allowed the states (but not the federal government) to deny freedom of speech to or conduct unreasonable searches and seizures on non-citizens (but not citizens).)

                1. Seamus-Are you saying you think that the 14th Amendment is controversial or are you saying that others claim it’s controversial? Because if you look at what Bingham said from the start, he always intended to apply the bill of rights to the states. It’s only because of various court cases and a long history of misunderstanding that people think the 14th didn’t.

            3. Doesn’t the federal bill of rights apply solely to the federal government?

              no

              This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

              All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

              1. So why is it that states have consistently been given the right to make restrictions outside of the constitution? I’m just curious.

                For example, almost all of the original states had established religions, but the federal government couldn’t establish one.

                How do we decide which amendments apply to the states and which ones only to the federal government? Is this a positive vs. negative rights argument?

                1. Because the job of judges is not to judge the law against the Constitution, but to find some convoluted justification for laws that are obviously in violation of it.

                  The resulting combination of bad precedent and judicial deference means that there really aren’t any restrictions on what the government can do.

                  1. AHA! I appreciate the explanation. I always get confused when I read an amendment and then see how it’s applied…

                2. So why is it that states have consistently been given the right to make restrictions outside of the constitution? I’m just curious.

                  They can make restrictions outside the Constitution. They cannot make restrictions that violate the constitution.

                  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                  Why have they been allowed to do so in the past? See sarc’s first paragraph above.

                3. Black blood-In regards to your first question, the constitution was written with the idea that the states would always have the internal police power of their state reserved to them. You can see this in early state court decisions. The majority of those felt that they certainly had a right to control or regulate certain behaviors or actions such as concealed carry. Most southern states in the 19th century attempted to curtail certain weapons and concealed carry, in light of promoting safety and security, but to regulate the right of carrying a gun for defense, or for other lawful purposes was certainly considered beyond control for most states courts. Even the founders had “gun control” policies in place during the 18th century, But nothing of the ridiculous sort that politicians try to pass today.

    2. Wow, it was like I couldn’t even focus on that story because of her weird name!

      1. God I know! I just skipped down to a name I understood (Justin) and read from there.

      2. It was that briannnn guy who started all this wasn’t it?

        1. Yes! Isn’t he the best???

          1. He’s almost as much of a dick as that black blood guy.

            1. They should, like, start a club or something. It should be called the awesome club. No girls allowed. Password is boobies.

              1. Seconded!

  5. “I am presently in the process of reviewing our office’s position on the appropriate resolution of this matter,” McClain wrote in a recent letter to Superior Court Judge Michael Donio, who is overseeing Allen’s case. Her trial, which was supposed to begin on October 6, has been rescheduled for two weeks later.

    I’ll bet you that the ONLY reason he’s considering this is because his ass was flooded with angry people pointing out he allowed Rice a deferred sentence for dropping the gloom hand on his fianc?, which makes the prosecutor’s office look like, well, exactly what it is.

    1. Dude, if my ass was flooded with angry people, I’d do whatever I had to to get them out of there!

  6. Better read as “Fuck, how do I beat all the heat I’ve been taking about letting Ray Rice off easy?”

  7. What an absoultely abomination this situation is. Imagine if she had not gone to the press, and had gotten rail-roaded into 3 years in prison. It would be a GD tragedy, and the prosecutor would go home smug.

    This is another example of why it’s a bad idea to cooperate or volunteer information to the police in situations where you’re being questioned. It’s only rope for them to hang you. They are NOT on your side.

    1. It’s a bit of a catch-22. If you cooperate then they’ll use that information to fuck you, and if you don’t cooperate they’ll find a way to fuck you. Like arresting you on false charges and using that as an excuse to search you and steal your property. Or they might just beat you up and then drive off. What are you going to do? Call the cops?

      1. Well I think this is a good caveat to the above 2nd amendment discussion. If everyone were armed and willing, the cops would be a little more polite.

        1. If criminal law was limited to acts of force or fraud against a person’s life, liberty or property, then it wouldn’t really matter.

          No victim, no crime, no reason for the cops to give you shit.

      2. It’s probably worse for a NJ cop to find your gun on his own than for you to tell him about it. So you have to weigh that against the hope that he won’t search your car at all…

    2. I know that I absolutely shouldn’t have blown into the breathalyzer…

  8. Here’s the deal:

    I’m pretty sure the judge can dismiss this case any time he wants, sua sponte.

    So why doesn’t he?

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