Questions cloud ban on assault weapons
Published in the Asbury Park Press 10/17/04
By TOM BALDWIN
GANNETT STATE BUREAU
TRENTON -- New Jersey's assault weapons law, touted as the nation's toughest, is a bit off target.
The law contains language that leaves even judges at odds over a key provision. And that fact has enabled an undetermined number of the lethal guns -- despite boasts of politicians -- to be secreted in closets and attics.
The provision is so muddied that even the crafter of the measure, Attorney General Peter C. Harvey, holds an interpretation at odds with its most forceful proponent, former Gov. James J. Florio, who signed the ban into law in 1990.
The little-discussed issue has some county prosecutors baffled and angered that the law appears, at least, to create two classes of citizens -- those who are subject to the law and those who ignore it and, for now, cannot be prosecuted.
Case history shows the latter group does ignore it. They are policemen.
The question is this: Under New Jersey law, can police officers possess banned assault weapons, registered or not, for private use if the possession has nothing to do with their police work?
Harvey says they can. Florio says no way.
The matter takes on added importance now because a federal assault-weapons ban expired this year, while New Jersey's endures. Some in law enforcement fear a new market will emerge in which weapons banned in the Garden State are smuggled across state lines.
Gov. McGreevey has asked Harvey to form a task force to explore how to keep these assault weapons -- which State Police Superintendent Col. Joseph "Rick" Fuentes has warned can pierce police body armor -- out of New Jersey.
Ironically, some say it was law enforcement that pushed the Florio-era Legislature to grant police the right to privately own assault weapons in exchange for support for the legislation from the statewide Police Benevolent Association, or PBA.
Support for the law from the PBA -- with more than 30,000 members, the state's largest police union -- arrived late in the legislative process. And the PBA has since sided in court with the argument that police can privately own assault weapons.
"It's not the clearest language," PBA lawyer Robert Fagella said in an interview. "But they can possess. That's what the current law says."
Florio says there was no agreement, but two lawmakers recall things differently.
"There was no deal," Florio told Gannett. "Not at all."
Former state Sen. John F. Russo, D-Ocean, and former Assemblyman Joseph A. Mecca, D-Passaic, said they recalled municipal police seeking exemptions from the gun law. But the men said details from nearly 15 years ago have become hazy.
"I thought there was a deal, but I don't know that the language is in the law," Mecca said last week.
Suddenly, the law that has attracted so much attention for more than a decade is termed vague and subject to interpretation. The incoming acting governor, Senate President Richard J. Codey, D-Essex, said it should be amended to make the prohibition clear.
"We didn't do it right the first time," Codey said.
A pair of cases underscores how the New Jersey law, which bans all automatic weapons and certain semi-automatic weapons, appears flawed.
Two years ago, police in Egg Harbor Township, on the mainland outside of Atlantic City, went to the home of Mark Ciambrone to deliver a restraining order telling him to stay away from his wife.
Ciambrone had been an officer on the police department in Margate, a beachfront community just south of the gambling resort on Absecon Island. Police told Ciambrone he had to surrender all weapons in his possession, whereupon officers discovered the policeman owned two weapons that fell under the state's ban.
Ciambrone's lawyer, Louis Barbone, argued police were allowed to privately possess such guns. Atlantic County Superior Court Judge Michael A. Donio disagreed, prompting Atlantic County Prosecutor Jeffrey S. Blitz to say the law covered everyone, even cops.
Months earlier, another police sergeant, Kenneth Moose of the Far Hills department in Somerset County, had been suspended pending a psychiatric evaluation. Later Moose, too, was found by other officers to possess a banned weapon.
His lawyer claimed the law allowed this, and the judge in Superior Court in Somerville, Edward M. Coleman, agreed that Moose was exempted by the law.
New Jersey was now in the position where its heralded gun law was being interpreted two ways in similar cases by two judges in separate counties. And Harvey -- who wrote the measure back in 1990 -- then irked some prosecutors by telling them to back off.
In Atlantic County, the case against Ciambrone was dropped. Somerset County prosecutors were told by Harvey not to appeal the Moose decision.
Wrote Harvey, "A number of questions have been raised concerning the authority of municipal police and other law-enforcement officers to possess privately owned assault firearms."
Harvey wrote that provisions of the law conflicted on the issue, adding, "The relationship and interplay between these two statutory provisions is unclear."
The attorney general has sought opinions on the law from his own Division of Criminal Justice, the County Prosecutors Association and the Police Training Commission. He promised a resolution by July, but none was forthcoming.
Harvey's spokesman, John Hagerty, said the law will be amended, likely in the next few months.
"We will be making legislative changes," Hagerty said.
Florio said the exemptions allow law-enforcement officers to carry otherwise banned assault weapons when they're on duty, if they're trained and regularly tested.
"There was no blank check" for off-duty or retired police, Florio said.
Harvey said the law's exemption appears to apply to all trained, active-duty law-enforcement officers, though not retired ones.
"Yes, it allows for active-duty police officers to own them. . . . It wasn't a deal. The assumption is that police have a different responsibility from an average citizen," Harvey said.
"This is all a surprise to us," said Bryan Miller, executive director of Ceasefire New Jersey, which used to be called New Jersey Citizens to Stop Gun Violence when it helped lead the call for Florio's gun ban 14 years ago.
"We believed that the law made it illegal for everyone in New Jersey to own these weapons, except for the very, very tiny minority. I'm shocked. I'm sure the citizens of New Jersey would be shocked," Miller said.
Published in the Asbury Park Press 10/17/04
By TOM BALDWIN
GANNETT STATE BUREAU
TRENTON -- New Jersey's assault weapons law, touted as the nation's toughest, is a bit off target.
The law contains language that leaves even judges at odds over a key provision. And that fact has enabled an undetermined number of the lethal guns -- despite boasts of politicians -- to be secreted in closets and attics.
The provision is so muddied that even the crafter of the measure, Attorney General Peter C. Harvey, holds an interpretation at odds with its most forceful proponent, former Gov. James J. Florio, who signed the ban into law in 1990.
The little-discussed issue has some county prosecutors baffled and angered that the law appears, at least, to create two classes of citizens -- those who are subject to the law and those who ignore it and, for now, cannot be prosecuted.
Case history shows the latter group does ignore it. They are policemen.
The question is this: Under New Jersey law, can police officers possess banned assault weapons, registered or not, for private use if the possession has nothing to do with their police work?
Harvey says they can. Florio says no way.
The matter takes on added importance now because a federal assault-weapons ban expired this year, while New Jersey's endures. Some in law enforcement fear a new market will emerge in which weapons banned in the Garden State are smuggled across state lines.
Gov. McGreevey has asked Harvey to form a task force to explore how to keep these assault weapons -- which State Police Superintendent Col. Joseph "Rick" Fuentes has warned can pierce police body armor -- out of New Jersey.
Ironically, some say it was law enforcement that pushed the Florio-era Legislature to grant police the right to privately own assault weapons in exchange for support for the legislation from the statewide Police Benevolent Association, or PBA.
Support for the law from the PBA -- with more than 30,000 members, the state's largest police union -- arrived late in the legislative process. And the PBA has since sided in court with the argument that police can privately own assault weapons.
"It's not the clearest language," PBA lawyer Robert Fagella said in an interview. "But they can possess. That's what the current law says."
Florio says there was no agreement, but two lawmakers recall things differently.
"There was no deal," Florio told Gannett. "Not at all."
Former state Sen. John F. Russo, D-Ocean, and former Assemblyman Joseph A. Mecca, D-Passaic, said they recalled municipal police seeking exemptions from the gun law. But the men said details from nearly 15 years ago have become hazy.
"I thought there was a deal, but I don't know that the language is in the law," Mecca said last week.
Suddenly, the law that has attracted so much attention for more than a decade is termed vague and subject to interpretation. The incoming acting governor, Senate President Richard J. Codey, D-Essex, said it should be amended to make the prohibition clear.
"We didn't do it right the first time," Codey said.
A pair of cases underscores how the New Jersey law, which bans all automatic weapons and certain semi-automatic weapons, appears flawed.
Two years ago, police in Egg Harbor Township, on the mainland outside of Atlantic City, went to the home of Mark Ciambrone to deliver a restraining order telling him to stay away from his wife.
Ciambrone had been an officer on the police department in Margate, a beachfront community just south of the gambling resort on Absecon Island. Police told Ciambrone he had to surrender all weapons in his possession, whereupon officers discovered the policeman owned two weapons that fell under the state's ban.
Ciambrone's lawyer, Louis Barbone, argued police were allowed to privately possess such guns. Atlantic County Superior Court Judge Michael A. Donio disagreed, prompting Atlantic County Prosecutor Jeffrey S. Blitz to say the law covered everyone, even cops.
Months earlier, another police sergeant, Kenneth Moose of the Far Hills department in Somerset County, had been suspended pending a psychiatric evaluation. Later Moose, too, was found by other officers to possess a banned weapon.
His lawyer claimed the law allowed this, and the judge in Superior Court in Somerville, Edward M. Coleman, agreed that Moose was exempted by the law.
New Jersey was now in the position where its heralded gun law was being interpreted two ways in similar cases by two judges in separate counties. And Harvey -- who wrote the measure back in 1990 -- then irked some prosecutors by telling them to back off.
In Atlantic County, the case against Ciambrone was dropped. Somerset County prosecutors were told by Harvey not to appeal the Moose decision.
Wrote Harvey, "A number of questions have been raised concerning the authority of municipal police and other law-enforcement officers to possess privately owned assault firearms."
Harvey wrote that provisions of the law conflicted on the issue, adding, "The relationship and interplay between these two statutory provisions is unclear."
The attorney general has sought opinions on the law from his own Division of Criminal Justice, the County Prosecutors Association and the Police Training Commission. He promised a resolution by July, but none was forthcoming.
Harvey's spokesman, John Hagerty, said the law will be amended, likely in the next few months.
"We will be making legislative changes," Hagerty said.
Florio said the exemptions allow law-enforcement officers to carry otherwise banned assault weapons when they're on duty, if they're trained and regularly tested.
"There was no blank check" for off-duty or retired police, Florio said.
Harvey said the law's exemption appears to apply to all trained, active-duty law-enforcement officers, though not retired ones.
"Yes, it allows for active-duty police officers to own them. . . . It wasn't a deal. The assumption is that police have a different responsibility from an average citizen," Harvey said.
"This is all a surprise to us," said Bryan Miller, executive director of Ceasefire New Jersey, which used to be called New Jersey Citizens to Stop Gun Violence when it helped lead the call for Florio's gun ban 14 years ago.
"We believed that the law made it illegal for everyone in New Jersey to own these weapons, except for the very, very tiny minority. I'm shocked. I'm sure the citizens of New Jersey would be shocked," Miller said.
