Enough of the American public believe that one should only face the severe punishment of imprisonment for crimes that harm people or property and/or indicate a propensity to continue doing so. When stories spread about justice not working that way, public outcries can dredge justice from injustice.
A new memoir by Brian Aitken, The Blue Tent Sky: How the Left's War on Guns Cost Me My Son and My Freedom, tells such a story of injustice halted, often at excruciating, but always highly readable, length. It's the story of a man who meant no harm to anyone, who was doing his best to obey a picayune regulation, and who by most evidence was not even really violating the picayune regulation—New Jersey's Graves Act (which imposes certain mandatory sentences on certain gun-related crimes)—for which he was sentenced to seven years in prison, three of them mandatory without parole.
Aitken tells his story with a winning combination of the naivety he began with and the hard knowledge he's learned. He writes to some degree out of a desire for vengeance via exposure on those in the judicial system who wronged him, yet his tone is mostly admirably restrained. He trusts the reader will see the injustice he suffered so doesn't feel the need to rail about it. He tells his story; he doesn't try to oversell it.
What Aitken went through in the name of pointless gun regulation is harrowing enough, even in the broad-brush details with which I'll sum it up. An adult professional with no criminal record, a fully legal gun owner in Colorado, guns purchased with his now-estranged wife, with whom he was embroiled in a custody fight over his infant son. That fight led him to move to New Jersey to try to be near his son, although his wife makes seeing his son difficult. His parents also live in Jersey. He's in the process of moving from his parents' home to a friend's house in Hoboken to be closer to his job.
He was having a frustrating day, his wife once again pulling his son out from a scheduled visitation, and his mom seeming to give up on the whole process. Aitken made an impolitic statement that mom—whose other son had a history of suicide threats—interprets as such a threat. She calls 911, then thinks better of it and hangs up. Too late.
The police show up. They call Aitken, still driving. They threaten him with a statewide manhunt if he doesn't voluntarily drive back to his parents' house. They threaten to send him on a 72-hour psych lockdown to pressure him into agreeing to let them search his car. During the search they find the guns that he insists—and no evidence the state ever presented contradicted—he had put in the trunk earlier that day, unloaded, and was preparing to move them from his parents' house to his new home, both in New Jersey.
The incident ends with the police arresting Aitken for possessing his guns. Despite his parents' blunders that directly led to his troubles, the filial Aitken doesn't blame them a bit, though many of his later supporters expressed rage toward mom for calling 911. It bears repeating: unless you are very, very prepared for your loved one to be arrested or murdered, do not ever call the police to "help" a loved one.
As a result of Aitken's mere indictment, he lost his visitation rights—even before he lost the case and went to jail—and to this day has not seen his son again. Aitken is convinced that the prosecutor, judge, and even state attorney general were obsessed with tough enforcement of the Graves Act because of the national politics of gun control. As he wrote, "months before my arrest the New Jersey Attorney General, Anne Milgram, had issued a directive to prosecute gun owners 'vigorously,' 'strictly' and 'uniformly.'" Aitken was not any kind of gun rights warrior, not even much of a shooter. Being tossed in prison merely for having a legal possession in the trunk of his car turned him into one.
Aitken couldn't have been a better candidate for leniency on the system's part. As backed up by testimony from a roommate, he had scrupulously studied New Jersey law about transporting guns and believed he was following them to the letter. The very search that found the guns was rife with disturbing Fourth Amendment implications as he was in effect detained without probable cause.
By refusing to plea out and insisting on trial—an act of lese majeste dared by only around 5 percent of defendants caught in the state's maw—he angered the system. By going on a webcast with Judge Andrew Napolitano in August 2009 and talking about his case between indictment and trial he angered the system even further. The judge in his case, James Morley, openly admonished Aitken, noting that "This trial…is not going to be a referendum on the Second Amendment." (That publicity did gain Aitken the support of thousands of people who lobbied on his behalf later, and the attention of the National Rifle Association, who helped pay his legal fees.)
Judge Morley, in the course of the case, was demonstrably unfair. He ignored testimony that at the very least raised the strong possibility that Aitken really was moving and thus fell under a clear exception to New Jersey's otherwise guilty-until-proven-innocent gun laws. Morley decided for himself that Aitken was not moving, and thus refused to even tell the jury—who asked him three times in a row to please explain any exceptions to the law that might bear on the case, aware that some such exceptions existed—about that law. An appellate court later held that "the judge should have instructed the jury on the exemptions and….his failure to do so was 'capable of producing an unjust result'" while overturning two of the three charges Aitken was hit with.
In sentencing, a different judge** openly said he was using Aitken's life as an example to others, since "I do find a strong need for deterring the defendant and others from violating the law so that the public is aware that there are penalties for offenses of this type." Remember: the offenses for which the judge thought years of a life were a suitable sacrifice to deter others were…driving around with legally obtained and legally owned inanimate objects, unloaded, locked in your trunk.
Among its other virtues, Aitken's book is a maddeningly detailed tale of how infuriatingly unfair and even clearly illegally judges and prosecutors can behave, with a man's life as their plaything, and how impotent the innocent are to fight back. For just one example, a prosecutor at one point in the proceedings tried to knock down the argument that the 1986 federal Firearms Owners Protection Act (FOPA) could apply to Aitken since he wasn't moving from one state to another, at the same time admitting/agreeing that he was moving from one city in Jersey to another—clearly making him eligible for the exception in NJS 2C:39-6e that the Judge refused to tell the jury about.
The book also dramatizes through a long narrative of his months behind bars why prison is a very serious thing to do to someone—dangerous and terrifying and destructive to all one's relations with the outside world. Still, as Aitken discovered, people end up locked up for trifling nonsense such as "unpaid parking tickets, possession of marijuana, or mental illness." Some end up dying there from mistreatment, even if their initial offense was something as minor as public drunkenness.
Eventually, a public drumbeat that stretched beyond gun rights activists convinced Gov. Chris Christie (R) to commute Aitken's sentence after a few months in December 2010. As noted above, two of his three charges were overturned on appeal; a cert request to the Supreme Court about that remaining charge, involving the hollow point ammo he was also arrested for possessing, was denied earlier this year.
As Aitken's lawyer Evan Nappen explains, the law on paper makes no exception for the movement of such ammo, leaving the weird result that if you own some legally, you cannot take it with you when you move—you have to leave the new owners of your house with "a bottle of champagne in as a move-in gift, and, oh, all this ammo, because I can't move it."
Those in the gun rights community who followed Aitken's story saw history grimly repeating itself this year in the case of Shaneen Allen, with the added gut punch that she was the sole caretaker of two children. She was on her way to a party with them from her Pennsylvania home when she foolishly informed a Jersey police officer in a lane-change traffic stop that she had her fully legal and permitted pistol in her car. (She bought it after being robbed twice.) She was, of course, arrested.
After initial truculence in the face of public outrage, the prosecutor in Allen's case eventually rolled over and pushed Allen into a pretrial intervention that won't involve jail. This was only after the state's acting Attorney General admitted that when out of state residents bring their legal guns into Jersey, "in most cases, imprisonment is neither necessary not appropriate to serve the interests of justice and protect public safety."
As many as 100 cases with the same circumstances as Allen's are currently pending and may find their fates improved because of the media and public pressure that surrounded the very sympathetic Allen's case. "In Jersey," explains Nappen, lawyer for both Aitken and Allen, "gun owners are guilty until they prove themselves innocent" very literally—they need to prove their gun ownership and movement fit into a small series of exemptions. Nappen says that he and Allen were being pressured on all sides to plea out and not fight the case. He tells me about Superior Court Judge Michael Donio who mocked lawyers like Nappen who actually tried to defend their clients when he sentenced another Graves Act defendant who pled out to just two years' probation.
That's the positive outcome that can arise, Donio said, when "lawyers do it right and follow the proper method." Donio also jabbed at lawyers like Nappen who treat gun cases as a "cause." For his part, Nappen says that it's his job to make every client's defense a cause.
Scott Bach, a member of the NRA's board of directors and executive director of the Association of New Jersey Rifle and Pistol Clubs, thinks it obvious Jersey legislators don't mind the destruction of innocent life inherent in Graves Act enforcement. This year, a law was almost passed that would have eased some of its strictures, offered as a sop to get support from across the aisle for a new magazine ban. When the latter failed, the former was also abandoned. That fits the general legislative attitude toward guns in his state, Bach says, which he thinks is deliberately designed to keep all gun owners "harassed and intimidated." As Jersey's own Supreme Court declared in a 1996 case State v. Pelletieri, "When dealing with guns, the citizen acts at his peril."
Despite the obvious injustice of Aitken's and Allen's stories, enforcement of similar laws when it comes to gun possession still happens. In New York airports make a practice of arresting citizens doing their best to scrupulously obey regulations on how to transport weapons back and forth from where they are legally owned and, where necessary, permitted. But despite FOPA, New York airports use the loophole of airports not being explicitly mentioned in the law to arrest and fine people for violating local gun law. While rarely sending them to prison past their initial arrest, New York steals from them time, money, and their weapons, which are confiscated and never returned. In 2013, 25 citizens trying to abide by the law got thusly nabbed in New York City airports; in 2006 it had been 51.
Laws that turn perfectly peaceful acts related to weapon ownership into crimes are growing, as seen in Washington's newly passed Initiative 594. That law makes Washingtonians who innocently transfer property they legitimately own—but without jumping through government hoops the way the government requires—into criminals.
Meanwhile, the federal U.S.C. 922, whose various provisions are almost entirely about creating a technical crime out of the mere nonviolent, nonharmful owning, selling, or transferring of weapons, saw 5,764 convictions in fiscal year 2014, 660 in September alone.
The injustice Aitken suffered—someone who harmed no one and was doing his best to obey the law sentenced to seven years in prison—was, Aitken has come to believe, "a direct result of the liberal war on inanimate objects." Such injustices "are the intended consequences. They are not unintended. They are exactly what [proponents of tougher, more complicated gun possession and use regulations] want."
**Correction: The article originally mistakenly said Judge Morley also did the sentencing.