New Jersey Laws and Defenses for Imitation Firearm Charges in Burlington County
At The Tormey Law Firm, our founder Travis J. Tormey has been named among the Top 40 Trial Attorneys in New Jersey under 40 by the National Trial Lawyers Association. He leads a team of former prosecutors, former members of the U.S. Attorney’s Office for the District of New Jersey, and a former member of the Morris County Prosecutor’s Office’s Weapons Forfeiture Unit. We employ our extensive experience in weapons prosecutions and investigations to craft highly effective defense strategies that achieve our clients the best possible results. With several office locations throughout New Jersey, we represent clients in courts across the state, including in Burlington, Camden, Middlesex, Hudson, and Somerset counties. To discuss the circumstances of your case with one of our New Jersey weapons defense lawyers, contact our offices today at (201)-614-2474 for a cost-free consultation.
Imitation Firearm Offenses under NJ Law
According to section N.J.S.A. 2C:39-1, which includes definitions of critical terms related to New Jersey Weapons Law, “imitation firearm” refers to any object or device reasonably capable of being mistaken for a firearm.
Unlawful Intentions with Imitation Firearms
Although it is not illegal to simply possess an imitation firearm, this possession becomes a crime when the item is possessed under circumstances that would lead an observer to reasonably believe that the individual possessed it for an “unlawful purpose.” As mentioned above, this may apply in cases in which the firearm is used to threaten, instill fear, or commit another crime.
So long as you possess an imitation firearm in a situation that you know would lead another to reasonably believe that you had the gun for “unlawful purposes,” you may be found guilty of violating N.J.S.A. 2C: 39-4(e). Thus, pointing a realistic-looking toy gun at a cashier in a convenience store or pulling out a skeet rifle from under a long coat in a bank would likely cause the cashier and bank tellers and patrons to believe a robbery was underway and their lives were in danger.
Though prosecutors cannot read minds, the circumstances alone may indicate the actors intended others to believe the guns were real. For the statute, an imitation firearm is one that someone would reasonably think is a real gun. Whether the imitation firearm looks like a rifle, shotgun, handgun, machine gun, or semi-automatic rifle, the state can prove the device or weapon is an imitation firearm if the gun fires, projects, or explodes a ball, slug, pellet, bullet, bb, flame, or gas in a shell or explosive material.
Another element of the crime is the reasonableness of the victim’s belief that the weapon’s use is unlawful. Reasonable belief is not a subjective belief. So, someone’s overreaction to seeing the neighbor pick up a wooden toy gun from their front yard is unreasonable. Most people would not believe the gun was real or a crime was underway. The measure of reasonableness is an objective standard that most people would understand a crime is occurring with a real weapon. Reasonableness depends on the circumstances.
Penalties: Possession of an imitation firearm for an unlawful purpose is classified as a fourth degree crime under section N.J.S.A. 2C:39-4(e) of the New Jersey Criminal Code. As such, a conviction for this offense may result in a term of imprisonment of up to 18 months and a fine up to $10,000.
Contrasting Unlawful Purposes with Legal Possession
Sometimes, the best way to understand the key distinction between a crime under 2C:39-4(e) and normal life is to look at a few examples. For instance, when a group of friends walks into a Halloween party dressed as goofy gangsters with rainbow-colored hair and pointing orange plastic toy guns, partygoers are not likely to fear that a crime is about to take place. A jury would be unlikely to find a partygoer’s fear reasonable that the orange plastic guns were real and used for unlawful purposes.
On the other hand, the same group of friends may have realistic-looking air guns and crash the party, demanding everyone to hand over their wallets. When people hand over their wallets, not knowing who the party crashers are, a jury may convict the wallet thieves because the partygoers reasonably feared that a robbery occurred. In this case, the state may charge the intruders with various crimes.
Aggravated Assault and Pointing Fake Firearms
Aside from fourth degree unlawful possession of an imitation firearm for an unlawful purpose, the state may charge an individual using a fake gun to violate the law with aggravated assault and pointing an imitation firearm at a police officer. Aggravated assault and pointing an imitation firearm at a police officer are third degree crimes. A third degree criminal conviction can lead to 3 to 5 years in prison and a maximum $15,000.00 fine.
Imitation Firearms on School Grounds
In addition to the above crimes, it is also a distinct criminal weapons offense to possess an imitation firearm in or upon any part of the buildings or grounds or any school, college, university or other educational institution, without written authorization from the governing officer of the institution. It is also illegal to possess an imitation firearm on a school bus, as described in section N.J.S.A. 2C:39-5. Merely having a fake firearm on school property, or in any educational environment, is a disorderly persons offense, which is punishable by a sentence to serve up to 6 months in the county jail, as well as a fine of up to $1,000.
What Happens if an Imitation Firearm is Used in a Domestic Violence Situation in NJ?
Possessing an imitation firearm for unlawful purposes can cause ripple effects for the perpetrator. So, when an estranged spouse or another intimate partner, past or present, threatens a victim with a fake gun, the state may file charges for a violation of N.J.S.A. 2C:39-4 as well as other domestic violence predicate acts such as assault, criminal mischief, or terroristic threats. The alleged victim may seek a restraining order in family court to prevent the defendant from coming near or contacting them.
Restraining orders require defendants to surrender their firearms and prevent them from purchasing or possessing any guns. Furthermore, a restraining order defendant who hides firearms to avoid surrendering them or illegally purchases guns violates the restraining order and could see themselves facing additional charges for being a certain person not to possess weapons by law.
Charged with an Imitation Firearm in NJ, Am I Going to Jail?
Fortunately, alternatives to prison sentences are available to defendants, especially first-time offenders. Since a fourth degree crime does not carry a rebuttal presumption that a convicted defendant must serve a prison term, a judge is more likely to sentence a first-time offender to probation or a diversionary program should the circumstances warrant it. Diversionary programs are available to eligible candidates in Superior Court for indictable crimes and Municipal Court for disorderly persons offenses.
An eligible candidate for Pre-Trial Intervention has a clean record and is apt to benefit from a supervised program that offers rehabilitative and educational services, drug testing, counseling, and other services, depending on the defendant’s needs. After completing such a diversionary program, a defendant will still have a clean record of no convictions. The state dismisses the charges at the end of the PTI program. It is also possible that the sentencing judge will consider probation rather than a prison term. A good criminal defense attorney such as those on our team at The Tormey Law Firm can make a compelling argument that a client is a viable candidate for serving their punishment outside of prison, under the supervision of the probation department.
Though it may seem like you will not be in as much trouble with a fake gun as with a real weapon, New Jersey treats imitation firearms seriously when they are possessed for the purposes of committing crimes. However, our savvy weapons lawyers can help you assess all of your options, including potential defenses, probation, or a diversionary program. The application process is crucial, and legal help is advisable. That’s where we can play a pivotal role.
Our knowledgeable attorneys may also find ways to get the charges dismissed, represent you in pre-trial matters, negotiate with the prosecutor’s office for a lighter sentence or dismissal, and represent you at trial. We review everything related to your case to identify and file the appropriate pre-trial motions, get illegally obtained evidence thrown out, raise the proper objections at a trial to set up an appeal for any judicial errors or jury misconduct, and craft a winnable defense for your trial, among many other invaluable tasks in your defense.