New Jersey decided to legalize the possession of stun guns and tasers. In fact, following a public comment period set to end on October 20, 2017, proposed regulations published in the New Jersey Register will take effect and stun guns will be legal. One reason behind the legalization of stun guns was a successful constitutional challenge to the legality of New Jersey’s stun gun ban. Another reason that NJ legislators supported the legalization of tasers was the expected economic impact as a result of the sales demand for stun guns and tasers. For example, Paul Sollitti, owner of NJ Arms in Ocean Township, predicts that “it’ll be good for business because right now a lot of people who feel unsafe at home might morally be opposed to having a gun.” Sollitti goes on to note that a lot of New Jersey residents are likely to purchase a stun gun “for their home-defense plan.”
New Jersey was previously one of five states that ban residents outright from owning stun guns. In fact, the New Jersey Criminal Code includes stun guns on a list of prohibited weapons and devices. Specifically, N.J.S.A. 2C:39-3(h) establishes that any person who knowingly has in his possession any stun gun is guilty of a crime of the fourth degree. Other prohibited weapons and devices include, but are not limited to, destructive devices, sawed-off shotguns, silencers, defaced firearms, switchblade knives, hollow point bullets, large-capacity magazines, and handcuffs. Thus, in addition to the gun laws that apply to handguns, rifles, and shotguns, there are many other weapons that can result in fourth degree criminal charges in New Jersey.
Fourth degree crimes in New Jersey, including the unlawful possession of prohibited weapons and devices, can lead to the imposition of a fine of up to $10,000 and a potential prison sentence of up to 18 months. Moreover, a conviction for a fourth degree crime will result in a permanent record of a felony offense.
History of Stun Gun Laws in the United States
What is a Stun Gun?
Under New Jersey’s Criminal Code, a stun gun is defined as any weapon or other device which emits an electrical charge or current intended to temporarily or permanently disable a person. N.J.S.A 2C:39-1. In simpler terms, a stun gun is a taser or prod that electrocutes an individual. Typically, the device is used for self-defense as an alternative and less lethal form of disabling a threatening person.
New Jersey Law
In the Garden State, it used to be illegal to possess a stun gun. More specifically, under N.J.S.A. 39-3(h), any person who knowingly possessed a stun gun was guilty of a crime of the fourth degree. However, as we will discuss in more detail below, the possessory laws surrounding stun guns changed. Also, pursuant to N.J.S.A. 2C:39-5d, any individual who knowingly has in his or her possession any weapon under circumstances not manifestly appropriate for such lawful use, is guilty of a crime of the fourth degree. If a person is found guilty of a fourth-degree offense, he or she could be sent to prison for up to 18-months and subject to a fine of $10,000.
How the Law has Changed
To better understand how New Jersey law has evolved and exactly how the stun gun statute was impacted, it’s important to understand the foundational cases that lead to the change. In 2008, the United States Supreme Court in District of Columbia v. Heller, was asked to determine whether the District of Columbia’s firearm regulations violated the Second Amendment. In that case, the regulation at issue required residents to register all firearms and when keeping their weapons inside their homes, the guns were obligated to be stored unloaded and disassembled or bound by a trigger lock. Heller filed a lawsuit in District Court challenging the regulatory scheme and eventually, the matter was appealed to the United States Supreme Court. In a 5-4 decision, the Court ruled that D.C.’s laws were unconstitutional. In short, the High Court ruled that individuals have the right to carry a firearm for self-protection and moreover, the Second Amendment prohibits the government from disarming its citizens. The D.C. law essentially disarmed citizens and therefore, violated the constitution.
A year later, several lawsuits were filed against the city of Chicago on the basis that their legislative structure was unconstitutional and inconsistent with the Heller decision. However, the city argued that the Heller decision did not apply to the individual states. More specifically, the city of Chicago argued that the District of Columbia’s firearm laws were passed by the federal government and consequently, the Second Amended applied. However, the city of Chicago is a separate state and as a result, it may pass gun laws consistent with its own state constitution. Despite the cunning argument, the United States Supreme Court ruled, in McDonald v. Chicago, that the Second Amendment and the right to keep and bear arms for the purpose of self-defense is so fundamental and deeply rooted in our Nation’s history and tradition, that the Second Amendment must be applicable to the States. Consequently, the Court held that through the Fourteenth Amendment, the Second Amendment and in turn, the Heller decision, apply to the individual states.
At this juncture in time, most of the significant litigation surrounded firearms in the context of the Second Amendment. Following the two seminal cases outlined the above, the law of land was as follows. The Second Amendment of the United States Constitution protects individual’s right to possess firearms for self-protection and moreover, the Second Amendment applies to the individual States. What that means is the States cannot pass legislation that prohibits people from arming themselves for self-defense. This was a very significant set of cases because for years, there was an ongoing debate in this country over whether the Amendment was written to serve individuals in the form of arming themselves for self-defense, or whether it was to govern militias against attacks from the government. The Heller and McDonald cases resolved that debate in favor of the individual right to carry for self-protection.
The next pivotal case was in 2018, when the United State Supreme Court decided Jaime Caetano v. Massachusetts. In that case, Caetano was the victim of domestic violence and following a very severe altercation with her boyfriend, which placed her in the hospital, she was offered a stun gun by a friend. Caetanao accepted the weapon and began carrying it on her person in case she was confronted by her abuser. After leaving work one night, she was provoked by her ex-partner but this time, she displayed the stun gun and proclaimed she was not going to take the abuse anymore. The boyfriend got scared and contacted the police and unfortunately, Caetano was charged with unlawful possession of a stun gun. Similar to New Jersey’s old law, in Massachusetts, mere possession of a stun gun was illegal. As such, even though the stun gun probably saved her from further abuse and she never actually used the device against her ex-partner, she was convicted of a crime.
Nevertheless, she appealed the conviction and argued that she has the right to possess a stun gun for self-protection in accordance with the Second Amendment. The case was reviewed by the Supreme Judicial Court of Massachusetts but the Massachusetts Court ruled that stun guns are not protected under the Second Amendment because they did not exist when the Constitution was drafted. As such, the Caetano conviction was upheld. From there, she filed another set of appeals and the case slowly made its way to the United States Supreme Court. There, the High Court overruled the Massachusetts Supreme Judicial Court. The Justices, in a per curiam opinion, emphasized that the Second Amendment protects an individual’s right to keep and bear arms and further ruled that protections afforded under the Amendment extend to all instruments that constitute bearable arms, even if they did not exist at the time when our nation was founded. The High Court also added to hold otherwise, would be inconsistent with our opinion in D.C. v. Heller, which again, proclaimed that individuals have a constitutional right to arm themselves for self-defense. Accordingly, the Caetano decision expanded the right to bear, not just firearms, but other weapons, such as stun guns, that could be utilized for protection.
Impacts of the Changes in New Jersey Laws on Stun Guns
With all that in mind, how does the above discussed matter impact New Jersey? In 2016, an activist group called the New Jersey Second Amendment Society filed a lawsuit against the New Jersey Attorney General. In their suit, the plaintiffs asserted that our stun gun laws were unconstitutional. Relying upon the Heller, McDonald, and most importantly, the Caetano decision, a settlement was reached between the parties. Later, a Consent Order was executed by the District Court which declared that New Jersey’s prohibition against stun guns, more specifically, N.J.S.A. 2C:39-3(h), was unenforceable. Thus, a person may possess a stun gun without fear of criminal prosecution.
However, please keep in mind, the Order is limited to possessory charges. As such, a person can be convicted if they possess a stun gun and while doing so, use the device in an unlawful manner. Hence, statute N.J.S.A. 2C:39-5d, which states that any individual who knowingly has in his or her possession any weapon under circumstances not manifestly appropriate for such lawful use, is still enforceable. Consequently, if a person wrongfully uses a stun gun, he or she can still be convicted of a crime of the fourth degree and exposed to 18-months in jail and fine up to $10,000.
If you face weapons charges in New Jersey for the possession of a prohibited weapon or device, the unlawful possession of a firearm, or the possession of a weapon for an unlawful purpose, you should contact the Tormey Law Firm today. Our team of experienced criminal defense attorneys has decades of legal experience and we have successfully defended clients throughout New Jersey who were facing the severe consequences of New Jersey’s strict weapons laws. Our track record includes numerous cases in which we have successfully defended individuals charged with crimes in weapons cases, including illegal possession of a stun gun, handgun, rifle, and shotgun, in Superior Courts across New Jersey. Contact (201) 614-2474 24/7 to speak with a lawyer free of charge.
