Evan Nappen and Guns In NJ

Evan Nappen Esq (00:00.93)
This podcast is not a source of legal advice. No two legal cases are the same. Contact an attorney if you require legal assistance.

questions on it, but otherwise I can pretty much tell you anything and everything about New Jersey gun law. If I don't know it, that's going to be something in and of itself, believe me.

Do you have you been following the the appellate case challenging the different carry laws, New Jersey?

Absolutely, the sensitive places that we call the carry killer bill, I can talk about those.

Yeah, I want to talk about that. I know there was another case challenging the capacity limit, the 10 round.

Evan Nappen Esq (01:04.813)
about absolutely yeah very about that

All right, that sounds good. And just so you know, little background for me, I was a prosecutor for seven years. I was up in Burlington for three of those years. I was in Atlanta for four. I will say that I like to think that I was much more informed on the ins and outs of gun law than many of my colleagues.

Not surprised.

I definitely stopped a few things from being taken.

When were you a brother to that... wrong? When was that? What's that? When were you a pr... When were you a...

Lou Casadia (01:43.822)
So I started my practice January of last year, so up until like December 2023, I was a pro.

You're there through the Shanine Allen case?

I was an intern when that was going on and yeah we could talk about that.

in that county upside down with that case. And every prosecutor had to have an armed guard in court because the hate was coming down so strong. Look, I was just doing my job, but the groups that got behind it and all, and rightly so.

It was an outrageous case. mean, it should have never gotten that far. They should have let her in the PTI. I mean, it was, it's, it's really outrageous that they put up such a fight over that. Like that woman should have got a five. To think that they were fighting for the five do one is just absurd. And there were a lot, could tell you.

Evan Nappen Esq (02:30.498)
We can talk about Shanine Allen too if you want. We can talk about Shanine Allen. got interesting about her that are important today.

Yeah, you know what we

Evan Nappen Esq (02:48.866)
Well then let's do it man so we don't have to it. We're spontaneous. We're spontaneous people.

Do it. I'll do the intro. I'll do the intro and then I'll just get right into it.

Do your tick list of whatever and we'll deal with it man. All

Yeah. All right. Good morning, ladies and gentlemen. We're here at the New Jersey Criminal Podcast. Our guest today is Mr. Evan Knappen, the preeminent New Jersey gun law attorney. He's going to be here. We're going to be talking about New Jersey gun law, some of the most current federal challenges going on in both New Jersey and federal court, and just anything to do with firearms and the law. Mr. Knappen,

Do you have anything you want to say in?

Evan Nappen Esq (03:39.758)
Well, first of all, thank you for having me on your show. And I love talking about this subject. And I'm thank you, Lewis, for inviting me. And I'm happy to talk about anything you'd like to discuss about New Jersey gun laws and our Second Amendment rights. Go right ahead.

Evan Nappen Esq (04:00.91)
I've been practicing New Jersey gun law now for almost 40 years. I wrote the book, New Jersey Gun Law. It's really the Bible of New Jersey gun laws. It's over 500 pages, 120 topics. question and answer. It's the guidebook, New Jersey State Police Firearms Unit uses it, judges, lawyers, and thousands of gun owners. It's the 25th anniversary edition.

thoroughly updated and I can shamelessly plug my book. can buy it at my website, go to evannappen.com and get it. And I'll tell you, it is the go-to book to try to understand a New Jersey's incredibly complex, counterintuitive gun laws that set out really a process that individuals have to be very cognizant of so they don't become what I call a go-foo. A go-foo is a gun owner F up.

And we encounter gophos all the time. And I also have a podcast as well called gun lawyer. And we have a segment, every show called gopho, where I talk about actual cases where a law abiding citizen became a gopho and cost them dearly and very expensive lesson that the listener gets to learn for free. this book and my mission in life is to try to keep everybody legal. That's really the idea. And.

not to break these laws. And of course, I want to see a greater elimination of any Second Amendment rights suppression because New Jersey is a state of oppression of gun rights. And we see it come out in many ways that any rational normal person would object to, but it doesn't get presented in that way in the general media.

So I try to expose this and make it clear there's institutionalized racism in our gun laws. And I can get more into that and demonstrate how this actually works. There's various prejudices that come forward in gun licensing applications against people's choices in life, whether it's their sexual preference or their gender identity and all these things, they all come out in second amendment rights cases. So it's not normally thought of that way, but

Evan Nappen Esq (06:18.016)
Many issues that the left might be concerned with, let's just put it in that category, come out in gun rights because it is a right. And when the right gets oppressed, it is invoking many areas, including these areas. it's.

I definitely, I definitely hear more about that from you. I think before we get into that, I probably, we probably should just talk about generally speaking, New Jersey's gun laws, which would mostly fall under what was called the Graves Act, which is named after the New Jersey legislature that introduced the bill. But essentially, you know, the Graves Act outlines the different punishments and restrictions on gun ownership in the state. Can tell us a little bit about the Graves Act?

The Graves Act, Senator Graves was a senator who pushed to have what is minimum mandatory sensing provisions on the gun laws. And it started out as being a minimum mandatory sentence for the unlawful use of a firearm. And what I found is most folks, regardless of whether they're on the pro or con side of this issue,

don't have a big problem over individuals that wrongly use a firearm. And this was to increase and have mandatory penalties for the criminal use of a firearm. But over the years, it expanded to simple possessory offenses. So that today in New Jersey, if you're charged with just unlawful possession of a handgun, for example, under the Graves Act,

If you're convicted, the judge has virtually no discretion at all and must impose a minimum mandatory 42 months, three and a half years in state's prison. We'll do every day of the three and a half years before you even have a chance of getting out. And the sentence to the max is up to 10 years. So the sentences are often, you know, seven years with three and a half minimum mandatory under graves or.

Evan Nappen Esq (08:33.761)
You know, either they lowered to five or sometimes if you get a grave's waiver, they'll still include a minimum mandatory, but prosecutorial discretion may lower that minimum mandatory. But what we see here is individuals that are charged with unlawful possession for innocent mistakes or where they're put to their proofs to have to show that they're within certain exemptions because the exemptions

are in fact an ordinary defense. Some are even an affirmative defense. And because it's defense, the burden shifts and you face these draconian penalties, even though your firearm wasn't being criminally used. So unfortunately, the Graves Act has grown in this regard to the point of just simple possession, making mandatory minimum sentencing required.

Right. let's, so, I mean, essentially the Graves Act just blankly says you can't unlawfully possess a firearm. And then it sets out a number of different exceptions. Some of them for specific types of people like police officers and other people who can carry a firearm. But for the day to day person, the main exemption is possessing the firearm in the home, taking it to the range, taking it to your office or another residence.

But there's also restrictions on how you're supposed to transport the firearms. So can you talk a little bit more about that?

Let me just being even a little more legalistic, the Graves Act applies to sentencing. The charge itself, let's say it is 2C395B, unlawful possession of a handgun, that is qualifies as a Graves Act offense if you're convicted, minimum mandatory penalties have to be imposed in sentencing. But that ban on handguns, which it essentially is, has only two ways.

Evan Nappen Esq (10:34.574)
for an individual to lawfully possess their handgun. One is if you have a permit to carry the handgun, which is why it says no person shall possess, it actually says the word possess, any handgun unless having first obtained a permit to carry the handgun. So if you have the permit, then the statute recognizes that. Now, if you don't have the permit, you can still possess, but under narrow exemptions that are in effect a defense, they're under 39.6. And the two that

civilians use the most are E and F. E is possession in one's home or place of business. You have to actually own the business, it has to be your business. F has to do with going hunting or going to the target range. And that's how you can then exert, put forward those exemptions for the possession, even without a license. But if you don't have the license and you're outside of exemptions, then your possession is unlawful, arguably. And then if you're convicted,

You face a Graves Act sentence. That's how it

And for people watching here who trying to educate themselves on New Jersey gun law, if you're transporting the firearm, there's actually specific restrictions on how you're supposed to transport the firearm from your home to a range or from your home to a place of business. What specifically are you supposed to do?

So if you're going to rely on the exemptions and you're going to transport pursuant to exemptions, not pursuant to your potential licenses, but strictly by way of exemption, then subsection G of C396E specifies that the gun has to be unloaded and either in a case, in a gun box, a wrap, securely wrapped package, or locked in the trunk of the vehicle if the vehicle has a trunk.

Evan Nappen Esq (12:28.674)
So the mode of transport is there to qualify under the exemption. So if you're going to the range and you're relying on the exemption to go from your home to the range, you must transport pursuant to that method to qualify under the exemption. But if you have a carry permit, for example, for your handgun, then you can have it loaded concealed on your person with the handgun and you can go to the range with it loaded concealed on your person going to the range because you're

Carry permit is still covering that. And so you're not reliant upon the exemption. Now, of course, many individuals as they're just going to the range, they'll still have a carry permit and they'll still stay within exemptions just to have a belt and suspenders, if you will. But as long as you have either the license or are within the exemptions under the law, that keeps you lawful.

Right. So then I want to talk more about what you were talking about before. said the different prejudices you've seen in the application of the Jersey gun laws. you elaborate?

a good friend of mine, John Petrolino, who does a lot of writing in the area of second amendment rights. And you can find him online and he actually had a great article on this where he took the attorney general data, the New Jersey attorney general released all the data. And I give him credit for them releasing all the data. At least they did that showing every

gun license over this period of five or so or maybe more years and showing the individuals their race and whether they were approved or denied. And New Jersey's own statistics show that blacks are denied two and a half times more than whites. And we're talking about at least 2.2 times more on

Evan Nappen Esq (14:33.378)
the subjective criteria to get a license called public health safety welfare, which I call the all inclusive miscellaneous weasel clause, where the discretion is there with the chief and you're seeing actual data showing on that basis for denial, blacks at well over double the rate of whites on getting licenses denied. So you see institutionalized racism.

built into our gun license system based on the actual data from New Jersey. That's one example.

And that, mean, to be clear, like there's, there's obviously a number of reasons why you could be denied a permit. Some of them are more like checkbox. Like if you have a prior, certain prior conviction, you can't possess a firearm as a matter of law. What you're saying though, is that this, these statistics are based upon the application of just the catchall.

Well, there's two ways you can distinguish the type of denial basis. under NGS 2C 58 3C, it lists the reasons someone can be denied. So of course you can be denied if you're a convicted felon. That's an objective reason. Either you're a convicted felon or you're not. That's simple. It's not to do with any other judgment required there. Now we can talk about the...

ratio of convicted felons where blacks are six to one to whites being convicted felons. So they don't even bother replying because they're just out of the box and prohibited from that. And that's where we can talk about rights relief and getting expungement and other things that may be in the future to help address that inequity. But the key here is it's an objective reason. If you've had a mental health commitment, objective reason. If you have a domestic violence restraining order, objective reason. You have the objective reasons.

Evan Nappen Esq (16:30.328)
But then you have the key subjective reason. And that falls under public health safety welfare based on character or temperament. And that is where the abuse comes in by the issuing authorities on that specific disqualifier, where we see this ratio of well over double for blacks versus whites being denied for the subjective criteria reason.

And just to give the audience an idea of like, what is being used in this subjective criteria to deny people. I mean, one of the first things that comes to my mind is interactions with law enforcement that don't result in charges that are documented in police reports that the police can access from their search database, where maybe there was a domestic dispute that didn't result in anything that led to charges. Maybe there was some sort of other incident that

the police you then use that in a you know justification to deny you your permit like that's the type of thing that we're talking about here

Well, it would be extraordinarily rare and I don't think I've seen it where it's blatant where I say, I'm sorry, we don't give blacks gun permits, but we do see the discretion not being applied evenly. And then I've seen it get abused in other ways where I had a case where the individual got denied not because of any history of domestic violence, but and this was by the way, another lawyer who got denied who had been at.

tax attorney for 40 years because the judge didn't like that he'd been divorced three times. Yeah, that's it. wasn't violence, but we don't like that you were divorced three times. We've seen individuals get denied for just one fat.

Lou Casadia (18:18.582)
Was that taken up on appeal? That issue?

We eventually were able to overcome that an appeal wasn't necessary, but the initial denial is happened. And keep in mind as well to bring an appeal of a denial means bringing a legal action. And so if we're talking about individual classes that don't have the money to hire attorneys, because I'm not cheap. Let me tell you, I'm not. Go to court to fight these things.

then they just eat the denial and they don't get it addressed. So if the denial gets abused, you do see that. And again, it's institutionalized on that basis. their discretion gets abused and it is reflected by the statistics in this manner.

And I can say too, you know, I've certainly had people call me and, you know, a lot of them, they want to appeal denial or they think they're going to get denied and they want to retain me and, you know, just can't afford the legal fees. And you don't have a right to a public defender to appeal these denials. And essentially the chief of police, what I've seen, I'm sure you've seen it too. And from my perspective, I was a prosecutor for seven years. So I saw it from the other side is a lot of these chiefs, you know,

denying people is just an act of CYA. So they'll deny people if there's any hint of anything that they could conceivably believe that maybe this guy shouldn't have a gun, instead of making an objective decision, they just stamp it denied and they say, just appeal it. Knowing that they're probably going to lose, you know, that a court will overturn them, but essentially just passing the buck and letting the court make that decision so they don't have to take responsibility for their drug

Evan Nappen Esq (20:02.862)
Sometimes we do see the chief that just wants to see why a and doesn't care and says, have a judge grants it fine. I'm not going to, cause I, he's just scared to do his job right. But we also see chiefs that have an agenda that think they're the quote, the only ones that should have guns and don't respect the second amendment and just want to deny based on politics. there is, there are, there is a second amendment politically as well as.

institutionally, and some chiefs are of that mindset. And you'll see them routinely deny, not just because they're afraid, but because they're pursuing an anti-Second Amendment rights agenda. And then others may have, in fact, their own prejudices that get reflected in these denials. there can be, and then we've had other cases where it's politics of the individual.

where red cases where the chief was, uh, you know, going out on the side with the wife of the applicant and all those things. So it's all there. Right. These, and the abuse of discretion is part of the system and it needs to go because we want to have an objective criteria. That's one thing, but when you get more, as soon as you get the subjective, you get every human fault and problem there is, and it ends up costing rights. That's the problem.

And building off of that, I've seen from my own clients and some people who've called me are seeking advice. These police chiefs, oftentimes if there's a subjective denial, they know the applicant. Sometimes they even know them from childhood. They grew up in the same town together. They know them. They know that they come from a family that they don't have a high opinion of. They don't have a high opinion of the applicant. And so they're basing denials on...

whatever they can scrape up on the bottom of the barrel but at the end of the day it's because they don't think that person you like that person or they don't think that person's responsible and so they just clinging on anything they can to justify the denial that sound familiar to

Evan Nappen Esq (22:15.21)
It happens for sure. We've seen that. This is part of the built-in problem with New Jersey's gun laws where the discretion element there is right for abuse and the data shows bad things happening from that abuse. So there's an area that we may in fact see court action even at Supreme Court level that they've already spoken to it to a certain degree, but we'll see about

whether New Jersey's law, we're involved in a case right now. It's the MU decision where we're challenging this public health safety welfare basis for denial. And the appellate court upheld the lower court's use of it and we challenged it constitutionally. But here's the kicker. We've been waiting for over two years now for the New Jersey Supreme Court to either

agree to hear it or not two years just to decide whether to hear it or not. And if, of course, if they choose not to hear it, then we're going to go up to spring court of United States on a, a writ of certiorari. And if they, hear it and deny it, then we're going up and we're now in a delay of over two years just to go to the next step. necessary, you take that?

Evan Nappen Esq (23:45.198)
No, we got to we were required to exhaust the state's state Procedures first and that's where we're at So if you heard of a New Jersey sitting of the Supreme Court going over two years just to decide whether to hear a case or not That's pretty unusual. I think yeah, and yet here we see it with done rights that are at stake And of course the old saying is a right delayed is a right denied

And circling back a little bit, I just wanted to cover what I call a little bit of a nuance in New Jersey's gun laws. The permit process we've been talking about is, of course, the permit to purchase process. So it's to get the permit to buy a rifle or a shotgun, and then also then New Jersey has individual permits for handguns. However, though, the law against possessing a firearm, the exceptions

don't consider whether or not you have that permit to purchase. So you can in fact own a firearm in your home without having had gotten a permit. Now obviously the obtaining of the firearm, questionable as to whether or not that that would have been legal depending on where you got the gun and how you got the gun. But if you were to have a gun in your home and the police somehow discovered that, that's not actually against the law so long as it's not a prohibited.

The reason it's not against the law is because of the exemptions that we discussed earlier that says possession in the home is legal. But your acquisition of the firearm may have been illegal. So New Jersey essentially has three key gun licenses. One is your firearm purchaser ID card. That card is for long arms, rifles and shotguns. So this criteria to decide whether that gets granted is

NGS-2C50HC, same criteria right there. And if you meet that, you can get your long arm card. Now to get a handgun purchase permit, it is the same criteria. You need a single permit per handgun. You're not allowed to buy more than one handgun within a 30 day period unless you get special permission. You get a pistol purchase permit, which is also a form of register. People are confused about registration. It only registers the acquisition.

Evan Nappen Esq (26:08.046)
not your possession, so you can have an unregistered gun in New Jersey. It's just the registration is on that acquisition with a pistol purchase permit in New Jersey. Then the third license is a carry permit, permit to carry a handgun. That is not a geographic limitation in any way other than the law of carry, which has to do with sensitive places and all that. can get into it, but that's your carry license. And again, C is a licensing criteria for all three licenses. The difference on the carry,

is that you have to pass the training course called CCARE and you do need more references and a photograph, but it is still for getting the license the same basis as a few more hoops and loops you need to do. But what happens is when you look at New Jersey's handgun possession law, it's confusing because you would think if you got a pistol purchase permit, the handgun law would say no person shall possess any handgun unless they first acquired a

handgun with a pistol purchase permit. It doesn't say that. It says no person shall possess any handgun unless they first obtained a carry permit. Well, wait a minute. What if I don't want a carry, just want to it in my home? well, we have exemptions for that under 39.6E and F. it blends carry to the possession, which is kind of bizarre, and the charge is unlawful possession, but the license related to it is a carry.

What's funny too is that the exemptions, even if you don't have a carry permit, the exemptions for possession cover, you know, possessing in the home, they cover possessing transport to and from the home to a range, possession at the range. So you theoretically could not have a permit to purchase. Let's say you moved in from out of state and you brought in your collection of guns to your new home. You could theoretically go from your house to...

to the range and not have a permit to purchase. often though tell people that's not a great idea because if you happen to get pulled over and you have an officer that doesn't know the intricacies of the law, which is in my experience as a prosecutor, very prevalent. Not many officers realize that you don't need to have like a permit to purchase in order to have that firearm in your car properly transported to the range. I often tell them, said, not only

Lou Casadia (28:30.24)
Are you risking those guns being seized, but you're risking being charged with a crime which may ultimately be dismissed, but now you're going to deal attorney's fees and everything else. So I often tell people, don't be, you you're better off getting the permit. Do you agree with that sentiment?

actually no. So here's why. It's There are multiple ways to possess handguns without having a permit to purchase. You could have inherited the handgun. So under New Jersey's inheritance under 58 3J, you inherit with no paperwork, no registration. And if you've inherited a gun, there's no pistol purchase permit. You can take that to the range in the same manner under exemptions and you can carry it.

on your carry, as long as you listed as one of your carry guns, you can do that. If you acquired the firearm before the law took effect, you've had it for years and years before Jersey had their gun law, there's a lot of old timers out there with guns, no registration required. You can have that gun without paper, as they say. If you came from another state, brought your lawfully acquired guns into Jersey,

You could have those, except until recently a law did pass and said if you move to New Jersey from another state, you have to register your guns. But that registration only applies to individuals moving into New Jersey. If you're ready here, you don't have to do it. And there is even another way, and that is if you unlawfully acquired your handgun. Let me be clear here. If you unlawfully acquired your handgun, meaning you made an acquisition in New Jersey, you illegally bought it, whether it was in the street, at a garage sale.

at a flea market, whatever, you needed a pistol purchase permit to acquire it. And of course, under Jersey law, it should have went through a dealer. Now let's say that didn't happen. Okay, you did commit the crime of unlawful acquisition there. However, that crime has a statute of limitations of five years. Once that five years is up, you cannot be prosecuted for your unlawful acquisition. And if you have the gun in your home, is your possession lawful? Hell yes, it's lawful by way of the exemptions.

Evan Nappen Esq (30:33.198)
because you cannot successfully get a conviction. And I've had these cases and won them, every one of them I've ever had. see 39 Dixie exemption covers the 2C possession charge. And that's what the exemptions do. And acquisition is no longer an issue. So the greater question I think you would know, well, should you then voluntarily register guns that are not otherwise registered?

Now, the two views on this, one is what you said. And I get that if you can produce your voluntary registration and show the officer you registered, even though that's legally not required, legally irrelevant, whether your gun is registered or not, has no legal significance, but it might convince an officer who's otherwise stupid that doesn't know the gun law not to arrest you. Well, that's nice, but then there's the other concern. And the other concern is registering guns that don't need to be registered.

Because gun confiscation is a serious concern of gun owners. And we've seen a pattern through history that you can accept or not. I happen to believe in it. And that is the four words. And that is, it begins with legislation. Legislation is the man then goes to mandatory registration. Once you have registration, then you can have confiscation. And we see that take place in jurisdictions that suppress gun rights.

And after confiscation comes extermination, every major Holocaust was preceded by confiscating guns. So you may not want to agree with that political view, but it is a view based in a lot of history. So I'm not an advocate of registering guns at all. So that's the difference. Now, if you want to, sure. That's why it's a voluntary registration. If you're more comfortable doing it, go right ahead.

Yeah, mean, you know, obviously you got to weigh it out if you really want if you I think that coming from the prosecutor's office, you know for seven years What happens is is that every prosecutor's office has an on-call prosecutor, right? And you know just in my experience I would get calls when I was on call and a lot of times you get calls about gun situations and It would be an officer's a hey, I got sky pulled over. He's got a gun in the car. He doesn't have a permit

Lou Casadia (32:57.71)
I myself, I knew, okay, well, where's he going? He's going to the range. Okay, well, there's no, he hasn't committed a crime, Generally, that on-call circulates between people who have 20 years of experience to people who just got out law school. whenever I have clients who ask me, hey, do I need a permit for that gun? I tell them, look, you don't, but...

You know, are you one day going to get pulled over and some inexperienced prosecutor is going to say, oh yeah, breaking the law or arrest them. You run that chance at the same time. I totally appreciate your point of view is like, I don't want to register a firearm if I don't have to register a firearm. So yeah, I mean, it's like two camps there as the weather, you know, it's, it, you know, it's not necessarily a wrong way, but there's a pro and a con. Cause if you're going to register the gun, then it's registered and they know you have it. If you don't register the gun, you have that low chance of running into that situation where.

You end up with a stupid officer and a stupid prosecutor and you get charged with a crime that you shouldn't get charged with.

Take your position a little further in support of your position, even though I'm not. But one of things that is to be said there is I do advise folks that if you have a gun that is your primary self-defense firearm, you're better off making that a firearm that you got a permit to purchase and acquired it in New Jersey. So hell, if you need a new excuse to get a gun, I've just given it to you. And here's why. Because if you were involved,

in the lawful use self-defense and your gun was acquired lawfully with a pistol purchase permit. Even if we end up in a jury, let's say the fact that I can go to that jury and show his gun was registered and he given flap that registration paper around again, legal significance. Not really there because it wasn't about, but doesn't matter. His gun was registered and he gives you that power. So at least on your self-defense gun.

Evan Nappen Esq (34:55.852)
You might want to make that one a journey permitted firearm for that reason.

It's definitely in the crazy intricacies of New Jersey gun law. It is a safer bet to register because there is so much confusion even within law enforcement as to when things apply, when things don't apply. I'll give you, I'm gonna run, I wanna ask you this. I had a call when I was a prosecutor. A gentleman got into an argument with his wife, went and moved to a motel room and he brought his...

his lawfully owned handgun there. We got called out to the motel. I can't remember exactly the reason. It wasn't anything like unlawful that he was doing. It might've been like a wellness check or something like that. They go out there and he tells them, yeah, I'm here. got my handgun. He tells them he has a handgun. officer calls me. I'm on call at the time. The officer calls me and says, hey, what should I do?

I took the position, I said, look, you you can awfully possess a firearm in your residence. I took the opinion that I saw the word residence and I gave it a more broad interpretation. This guy was treating that motel as his residence at the time he was staying there. He, think if I remember correctly, had been staying there for an extended period of time. So it wasn't as if it was just like, he was just transiently there like for a day or two. But I took the position that

This motel is being treated as his residence. He moved, he transported that firearm from his home to the motel room. It's lawfully registered. was like a legal firearm itself. said, just tell him that he can't take that. He has to lawfully transport it to any other location that he can't have any hollow point rounds in it. And I told him not to file any charges. Now, would your position be?

Evan Nappen Esq (36:50.414)
I agree with what you advise there because first of all, especially today with the power of the, what I call the trifecta, you have the Heller decision, Supreme Court on second amendment is an individual right. The McDonald case that incorporates it to the states so that the state gun laws are subjected to the federal second amendment, which remember New Jersey does not have a state constitutional right to bear arms, but the federal right now applies in New Jersey because of McDonald.

And then the Bruin decision, which not only do these cases enshrine a right to have the most effective means being the firearm, but also a right to self-defense themselves. And the Heller decision specifically was about in the home. So if you're going to say somebody can't have their firearm at a place they're renting, then are you going to tell me that anyone who rents an apartment can't have a firearm either? This is where...

You know, this is an individual who is possessing where he's residing, whether it's temporary or permanent. There's no second amendment criteria that talks about you have to permanently be residing where you are. and so now there, we do have law that talks about things being a fixed location and, but with the Bruin decision, the right to self-defense applies both inside and.

outside the home now. And the question that was before the court was that very question, does the second amendment apply outside the home? And Bruin with the majority opinion by Justice Thomas said, yes, it does. So it was smart to advise the way you did it.

Yeah, just circling back to that a moment, I was on call that night. There was like 20, 30 other prosecutors in the office that could have been on call. I don't know how many of them would have taken the same position as me, but had they not, that gentleman would have been charged with a crime. He would have went through that process. Would it have been dismissed ultimately or would he have been given some sort of diversionary program like pretrial intervention? Who knows?

Lou Casadia (39:03.736)
But that would have been a significant headache for him first, like, you know, upwards of one to two years. So would have been crazy. It's crazy from just from, just from one person to the next, like you could have a completely different outcome. I'll give you another story. I had another call guy lived across the street from his mother or down the street from his mother. Mother calls him and says, someone's breaking into my house. The gentleman runs out of the house with his handgun to go protect his mother. And I get a call.

from the officer and the officer is like, Hey, what do see code? Do I charge him with? And I'm like, Hey, like that sounds a lot like. Defense of others. And maybe we should put a pause on, on filing charges. Like it's, it's not, I mean, we're talking, the guy was like former military, like he had no criminal record, you know, and, and, and, and, know, he was, he was like a couple of typed words away from being filed, you know, having criminal charges filed against them, you know, and as you well know.

once the charges are filed, it's not so easy to get them undone. know, the officer called me and I was like, put a pause on it. You know, I reached out to my superiors and I laid it out and I said, I don't think we should be filing charges here. And they agreed with me and they ultimately didn't.

more prosecutors like you, which is, because you're out and you're balancing and you're actually pursuing justice, doing your job right. And that's great. that's what the consideration is a tough job. truly is. And it's hard to make those calls, but realistically that's what the guy was doing. So we step back and say, what was going on? You saw what the truth was and you made a judgment based on that. So that was good.

Yeah.

Lou Casadia (40:43.596)
Yeah, so I guess to close out that segment, know, everybody's got to make their own decision if they want to disclose their possession of certain firearms that they don't necessarily have to legally or if they want to just keep it to themselves and which are lawfully allowed to do under certain circumstances.

Remember, in other states, unlike New Jersey, that person would be given an award for what he did, know, for defending themselves, right? Here, you're lucky you just didn't get charged.

I guess that just demonstrates too, like it demonstrates in New Jersey, just the mentality towards guns where like any situation involving a gun, the first instinct in my experience from law enforcement is like, do we have to charge something here? Not like, you know, the first instinct is what do we charge? Like something, like there's a crime here, there's a gun, right? Like, and they don't start from a standpoint of, well,

was there a justification or was there no, know, there's just, there's such a mentality that like any possession of a firearm in New Jersey is illegal without.

And I've discovered that one of the things is very important is that law enforcement is not adequately trained to know the gun laws. I had a case recently of an individual who was carrying with his carry permit. He was a hundred percent legal in New Jersey. There's what's called duty to disclose. So if you're stopped or detained by law enforcement driving or even in the street.

Evan Nappen Esq (42:18.178)
You have a carry permit, you're carrying your gun, you must immediately tell the officer that you have your gun and produce your permit. This individual is even a trainer who knew the law, immediately followed the law, disclosed, did everything right. Well, he was detained for hours and they were going to charge him with carrying his loaded handgun in a motor vehicle because the statute in Jersey says,

You can't have your loaded handgun in a motor vehicle, even with a carry permit. The problem is under the current case in federal court, which is even under appeal as we speak, the injunction is still in place on that section saying you can in fact carry because that law is not in effect. But that officer didn't know it. He just read the statute and the gun owner knew more than the officer and was lawfully.

exercising his rights and still went through this excessive detainment and threats and all that. Now, finally, they unloaded his gun, unloaded it, gave it back and said, you have to transport it unloaded, which he does not have to do. Right. And didn't criminally charge him. But that was a violation of his rights. And one of the things law enforcement and the state needs to see now is that you're seeing more civil rights actions suing

over this and you're seeing the US Justice Department now engaging in investigations of gun rights denial so that gun rights are no longer being treated as a second class right and they're going after gun right violation, way freedom of speech, freedom of religion, it's not a second class right and you're seeing LA by the way under US Justice Department right now being pursued over their unconstitutional licensing. We're talking from

the Justice Department. it's a new day. So officers as well as prosecutors should be very aware that it's also something where if you make this mistake, you may end up paying for it even criminally now. So be careful.

Lou Casadia (44:27.938)
Yeah. And that's a good segue into another topic, which is New Jersey carry permit laws. Now, obviously with the recent Supreme court decisions, New Jersey was forced to abandon the justifiable need requirement to issue a carry permit, which opened the door to everyday citizens without any objective disabilities, such as a prior criminal record. It allows them to get their carry permit. Now in response to that, New Jersey passed a law essentially just

outlining every possible way to restrict the carrying of a firearm, which it's been a while since I reviewed it, but when I did look at it, one of the main two things that stuck out in my mind as the most restrictive sections were number one, like we just talked about, you can't have a loaded firearm in your car, which kind of just completely defeats the purpose of carrying a firearm.

Well, called that the carjacker

There was that restriction and then the second worst restriction that they passed was instead of having like private businesses and residences, know, giving them the ability to put a sign on the door that says no firearms allowed in here, they reversed that and they said if they don't explicitly say that you can have a firearm in there, you can't carry in there. So essentially the only places that you could possibly carry would be if you were just walking down the street on your morning stroll in the morning around the block. That was basically like

like the only time you would actually be able to legally possess the loaded firearm and now you know that's being challenged federally.

Evan Nappen Esq (46:01.998)
bum in the federal court rule on both those one enjoying completely the firearm transport. when it comes to private property, how does that work? I'll explain it. So if you have a carry permit, the baby got split and here's how it works. If the private property is open to the public, you can carry your gun there, assuming it's not otherwise a sensitive place. It's like a school or whatever.

But if it's not otherwise, if it's 7-Eleven, you can go there with your gun, okay, on your person. But if the private property is not open to the public, then there either needs to be a sign that says carry, you can carry your gun, or if you've got permission from the property owner or possessor that you can carry. So the thing is, if you're a carrier and you have your gun permit and you're going to your friend's house and you're bringing your gun,

Even though your friend may be a fellow gun guy, make sure your friend gave you permission to bring your gun there because that's private property, not open to the public. But if it's open to the public, then you're good to go unless it's otherwise a sensitive place.

If what what what did they say about like you know for example grocery store. Private property open to the public what if the grocery store puts a sign on their front door it says no guns allowed.

Okay. So this is not a gun law question. That is a question of trespass. So what if a store says no bare feet, a store says no animals. What is, and you go in anyway. And what happens is if you're told, Hey, we don't like it out and you don't, you're defying trespasser. So it's about trespass and whether you want to obey the wishes of that party and you could be kicked out or charged with trespassing. It's not a gun law violation.

Evan Nappen Esq (47:57.538)
The gun law on that is enjoined where it had to be affirmatively announced. But if someone is saying no guns, then you run into that. And it's a, it's a conflict, if you will, between property owner rights and second amendment constitutional rights. Now, my personal view is our civil rights should override that. Okay. In the same way as if the sign said no blacks allowed in here, or it's not, that's outrageous, right? But it's a civil right.

So, currently that's not necessarily the case and property owners can set boundaries as to what and who they want on their property. So you have to respect it, but not because it's in the gun laws.

Right. So did they actually say when they enjoined a large portion of that new statute, did they actually say that the posting of like I'm just using a grocery store as an example, but did they say that the posting of a no

Not addressed in the statute. A negative post meaning no guns is not part of the gun law. It only said originally that had to permit guns, so they kind of shot themselves in the foot then, I guess you could arguably jokingly say. that got enjoined, the other doesn't exist in the gun laws. But it still arguably is there under the trespass.

I'm sure that when the dust settles and we see more clearly what is being upheld and what is not being upheld that New Jersey will ultimately pass.

Evan Nappen Esq (49:27.168)
Interestingly, states that you might think of as pro-Second Amendment rights and that respect the Second Amendment, like Texas, for example, they have a law that's where stores have the right to say, we don't want anyone open carrying, we don't want anybody concealed carrying, and they can store it. And if you do that, then you're violating the gun law of that state because they're permitted in that structure of gun law to prohibit in that matter. Jersey doesn't actually have that.

So has that been upheld? That type of?

As far as I know it has because it's his property rights versus gun rights conflict and that's how it plays out.

certainly makes more sense than to say, well, unless the store has a sign that says like, go ahead and bring your guns inside, you can't bring it inside. mean, that's just blatantly done to just restrict, because obviously most stores are not going to, unless the owner just loves the second amendment, he's not going to put a sign on the front door that says bring your guns inside.

Unless he wants to make sure his property is safer because by doing that, then the people are like, Hey, wait, this guy even welcomes guns. know, and, I've seen that play out even in what a open carry states where individuals did not rob a diner. There's classic case on it. went in, they saw people armed like, no, no, no. They hit the other diner where they weren't openly carrying. So there's a.

Evan Nappen Esq (50:53.472)
Now, whether or not individuals should open, well, Jersey doesn't allow open carry at all. So it has to stay concealed, loaded on your person if you're going to carry. But there is a deterrent effect to open carry. And if you're to put a sign that says no guns, then what you're saying is this is a victim disarmament zone. We don't allow guns here. So we're ripe for the picking. So come on down folks, because we don't allow any guns here. And if you're armed, you have a greater advantage over us.

I mean, you're basically advertising that, which is-

Are you saying the sign won't stop the person trying to rob a store from bringing the gun?

I think the signs are very ineffective at stopping, but they do encourage. any of this so-called mass shootings, like the folks purposely went to the movie theater that prohibited guns, purposely went there because they didn't want to encounter anyone defending themselves. So the signs, however well intentioned they may be, actually have the reverse effects on psychology of it. It's the same reason where individuals, you want to put a big sign on your

lawn, no guns in this house. What house do think they want to do a hot robbery on? The one that has that sign or the one that doesn't have that sign? What do you think? This is the problem of reality hits as opposed to the political statement that wants to be.

Lou Casadia (52:13.41)
What is the status of that case challenging all the different laws?

waiting for the appeals court in the federal court to render their decision and so once once that occurs again there's tremendous delay on this again why I don't know up to speculating why but eventually the sensitive places will get to the Supreme Court and I think we're going to see that this kicking and screaming reaction wasn't really a great idea and

Evan Nappen Esq (52:46.712)
Correct. For Jersey's challenge, did.

Did court make a, what was, did the district court rule on these things?

District court did and it knocked out about seven or so or more of the extensive places. Then some were reinstated pending the appeal, but not all of them. And we're waiting pending that decision now.

So the district court found that all of the district court. All of them, but did they find that the car restriction and the reverse.

Not all of them.

Evan Nappen Esq (53:19.018)
They found that the car restriction and that was not what they did was they granted an injunction, but then the appellate court stayed some of the injunctions. The injunction granted on enforcing the car was not stayed, meaning it's in place so that you can carry in your car. The private property was half, know, baby split. That was not stayed. So that's currently still the law.

Let's talk about just part of that whole thing. Hollow point rounds. Now, obviously, not obviously, but for anyone watching this, even if you have a carry permit, you cannot put hollow point rounds in your gun. It's so, it's so ludicrously silly that if you buy the critical defense hollow point rounds that have a little piece. Right. They're not by, by New Jersey definition, they're not hollow point because they have a piece of rubber.

Well, they're not hollow points.

Evan Nappen Esq (54:15.53)
or filler. they perform better than a hollow point.

Yeah, so if you are carrying a firearm, please put those in there because you don't want to put solid point rounds in. And I'll tell you, in my own experience, having dealt with shooting cases and homicides, those rounds go through people and they hit unintentionally.

Lastly, I will impose the Geneva Convention on New Jersey. The idea of a hollow point is energy transfer of the round to the target. If it goes through the target and hits innocent bystanders and over penetrates, it's silly. The ban on so-called hollow nose, hollow point was done by those that didn't understand ballistics and had an agenda of just, oh, hollow points, go in with a small hole and come out in a big hole and they believe the mythology of hollow nose, which is not it at all.

It is a foolish law. One of the only States that have that prohibition. Is critical defense, critical duty, and a number of other rounds. If you go to the New Jersey state police website where they have the FAQ, they name the brands that are not hollow nose, even though they can perform with less penetration and more energy transfer, which is really what you want in itself today. Also, do you want to go in through walls? I mean, it's as stupid as it can be, but then

Raise the-

Evan Nappen Esq (55:38.008)
saying that New Jersey gun laws are stupid, shouldn't shock anybody.

Yeah, you know, I would say that's one. I'll get into the other one in a moment, Top two is for me, but I just can't stand that I think it just make no sense. They do nothing to make anyone safer. They do nothing to punish actual criminals more is number one, the hollow point round charge, which again, it's a fourth degree crime and just just so people understand who like don't are, you know, aren't involved in criminal justice process. You know, let's say you have a guy that is illegally carrying a firearm.

And you know, he's just, he's on the streets of Atlantic City and he's using it unlawfully, okay? That guy gets caught, he gets charged with unlawful possession of fire, lo and behold, he's got hollow point rounds in that gun. Do you know how much extra sentence he's gonna get because he has the hollow point rounds in his gun? Nothing. He's gonna get an extra fourth degree charge that has no minimum requirements, it doesn't enhance his penalties on any lawful possession. He's ultimately gonna get the same exact sentence.

in my years of experience as the person who has got the solid rounds in the gun. The only thing the hollow point round charge does is make the lawful carry permit obtaining person who is just is not informed enough to know he can't put the hollow point rounds in the gun. He that only thing that fourth degree crime does is jam him up because you know whether he's charged with a fourth degree or a second degree, he's facing potentially having a felony conviction and then not having the ability to carry anymore. So

You know, that charge just does absolutely nothing to me.

Evan Nappen Esq (57:11.8)
Let me tell you big point that's important. It's not hollow, by the way, it's not a cartridge. It's simply the bullet head. So if the bullet is hollow nose, not the cartridge, and I had a case where an individual went through metal detector with his key ring, he had a hollow nose bullet, dummy round key ring that you see, right? But the bullet head was a hollow nose and they went so far as to

criminally charged and seek indictment on a dummy key ring. That's how absurd this was. We ended up knocking it out and winning, but what a dirty, and then another guy. It didn't have any power. was a dummy round, it had a hollow nose bullet head, right? And another guy stopped. He was delivering pizza. He's parked in an area, shouldn't have parked. Okay. So his car gets towed. They do an inventory search.

Did they actually, did that actually get?

Lou Casadia (57:52.432)
powder in it right it was

Evan Nappen Esq (58:07.894)
At the bottom of his glove box, at 122 hollow point, it must have fallen out of a box when he'd gone to the range. So they charge him on two cents worth of ammo, at the time it was two, now it's probably a nickel, for having that at the bottom of his drawer they didn't even know was there. And this has so much to do with public safety, you know, and fighting crime. And it's just amazing the effect that it has on reducing violence.

And the thing too with the hollow point rounds, you know, and I guess if anyone's watching this and they're like, what's a hollow point round? know, a hollow point round is, well, let's find it. Like a regular bullet has, you know, the powder, it has the ignition point and, you know, the casing, and then it has the actual bullet, which is a piece of metal that's going to be hit someone and actually hit them. I'm going to have to projectile, right? So.

That's what you

So, and a normal round is just a solid piece of metal. Now a hollow point on the tip of it is, it's hollowed out at the tip, and the purpose of that is that when it hits a target, it causes the projectile to expand and balloon out, which does more damage to the person you're shooting, but what it does is it substantially decreases the chance that that round's gonna pass through the intended target and hit.

someone behind them or someone nearby. And what you see though in solid rounds, I I handled homicide, number of homicide cases and a number of shooting cases when I was at the prosecutor's office. And what you see is with the solid round, not only do you see like bullets will pass through someone and then potentially hit something else, the solid rounds will bounce around inside of someone.

Lou Casadia (01:00:03.19)
which obviously does more damage to them anyway, number one, but also number two, you could hit someone from the front and it bounces off of their bone or the rib or somewhere in the side of them. It comes out the left side of them and now is hitting something that's not even in the direction you were firing. Not only that, I've had a number of cases and I have a number of cases where you would have believed the different

trajectories these bullets take when they hit people and you know some shot some gunshot wounds from solid rounds you would think would ultimately not be fatal end up being fatal because the bullet Didn't just pass through them it bounced off of their bone down in their in their hip and then it went Vertically through their lungs, you know, so the idea that the hollow rounds are somehow more dangerous. It's just absurd

it takes common sense and just slaps it in the face a few times and buries it in the ground. So I can't tell you how I hate that law. It's ridiculous, perp and meaningless.

And it also goes to what is the purpose in the self-defense shooting is not to kill necessarily. may happen, but it is to stop the threat. if a hollow nose is more effective in stopping the threat, it doesn't have to do with causing the causing death. It's energy transfer of the round to the target to the threat.

And what you're gonna see, I mean, I don't know that it's, I was gonna ask, this is my next question I was gonna ask you, but what I think about is you're restricting hollow point rounds, and yes, a more savvy gun owner will know that they could buy the critical defense round with the polymer filler in it, but for the people who don't realize that, and they're putting, or just less educated gun owners who don't realize the real significance and the difference between the two rounds, who are putting solid nose rounds in their gun.

Lou Casadia (01:02:08.846)
I mean, at some point there's going to be an act of self-defense and there's going to be a bystander hit from the solid round that's going to pass through the target and hit, you know, God knows who, who's standing in the background. And then, you know, the state, I'm sure the prosecution and the attorney general's office will then use that as justification for passing even more gun control laws. And they'll use that person as a scapegoat as they try to prosecute them while ignoring the fact that their own laws promoted the use of a round.

that risk hurting by standards more. Yeah. could talk about that. It just, it just drives me nuts that that's, but that was,

I

Evan Nappen Esq (01:02:48.078)
Another one that you were upset with. What was the other law that you thought was...

You know, I'll come back to that in one second. What I wanted to ask you though is, is there any documented case in New Jersey since the Bruin case and the expansion of the carry permit laws? Is there any documented case or prosecution for someone who had the carry permit who actually used it in self-defense?

We're seeing self-defense cases with permit holders that are both in the display of a firearm, not even necessarily using it. And when the individual is justified in displaying the firearm and not firing it, which is still a use of force, and you then have to put forward justification for the use of force, even though it's not necessarily deadly force.

And so, yes, this is.

So you've seen that.

Evan Nappen Esq (01:03:46.274)
We have cases now that are on that. We have cases that we... Yeah.

any fatal situations or?

Yeah, what happens is the members what we commonly call self-defense is legally called the do nine o justification and then we look at justification for the use of force both deadly and non deadly force but justification self-defense is what we call as lawyers of course an affirmative defense so what it means is the defendant ultimately first as the burden

to show that they fall under the law. And only after that burden is met by the defense to normally what proponents of the evidence are thereabouts, that the judge will allow it to be used. And then the prosecutor has to prove beyond a reasonable doubt that it wasn't justified. So everybody that in theory, anyone that uses force lawfully, even though you're within the use of force laws, is guilty until proven innocent.

because it's an affirmative defense. So in practical terms, you're gonna have to show that you are reasonable in this use of force. You're gonna have to present the elements of justification use of force. And ultimately, I like to always tell folks who has to decide if your action was reasonable. Ultimately, it's 12 people who aren't smart enough to avoid jury duty. So you better be very reasonable in your actions.

Lou Casadia (01:05:20.91)
Right. you know, to build off of that, you know, obviously if the facts are so obvious, hopefully there's no charges brought, but if there's any amount of gray, what you end up with is a situation where in order to bring an indictment, the state only has to show that there's probable cause and present the case of the grand jury. The case laws is pretty clear that

They don't have to instruct the grand jury on self-defense. That's something that's going to come.

It was an affirmative defense. Yeah, right

Right. So what ends up happening is you may have a case where it's like 99 people would say, yeah, like that was self-defense and maybe one person wouldn't. the state will sit there and say, well, we'll let a jury decide. It's like, well, yeah, but you're putting this guy through a trial for murder. You know, you may think you have probable cause, you really, you're cause here's the thing too is like ethically a prosecutor.

doesn't have to believe they can prove a case beyond a reasonable doubt to bring the charge. only have to believe there's probable cause. So you end up in this situation where you have a case that, yeah, is there probable cause? Yeah, sure. mean, like someone died, right? But when you talk about self-defense and you apply the facts, there's like a 90 to 99 % chance that they're going to be found not guilty.

Lou Casadia (01:06:42.446)
um beyond you know they're not gonna be able to prove beyond a reasonable doubt and then some mentality of some prosecutors offices is like well we're just going to charge that we're going to charge it and we're going to let the jury figure it out and that angers me because it's sort of it you know the prosecutor's office is supposed to be a gatekeeper they're supposed they're not supposed to just take every case and just slap it in front of a jury and see what happens

think states have addressed this by removing it as being an affirmative defense and making it part of the burden of proof of the state upfront.

States have it written like that in their criminal code? it's definitely, know, and it's, you know, it makes it to where it is a chilling effect, right? Like, like, I'm telling you, like, personally, I have a carry permit. I have not yet carried. I have not yet carried. And I just, it's not that, you know, obviously I can't, I have the permit, but in my mind, like, I'm worried I'm going to be in a situation. I'm going end up getting charged with something.

Yeah, there are states. Yeah.

Evan Nappen Esq (01:07:43.278)
It's the old saying of better, better, right. You know, charged by 12, then carried by six, that'll, yeah, there you go. You know, you got to make that decision and, it's a personal choice and guns are not for everybody. Not everyone should carry a gun. And if you're not comfortable or realize what you might have to go through, then those are very valid considerations. I don't think everyone can have a gun.

So you know what saying? Some doctors get worried because they think they have this, that, and the other disease that they learned about. I'm a lawyer.

I've gotten over that. I've gotten over that in this reel now, but I totally get it. I totally get it. Yeah.

I've doing criminal law too long. I've seen so many crazy situations and I'm like, man, I don't want to end up in that situation.

You don't want to be a gofu, that's for sure. gofus.

Lou Casadia (01:08:36.014)
But to elaborate on the self-defense issue a little bit more, know, New Jersey has a duty to retreat where, know, in order to be in order to self-defense, right? So inside your own home, inside your own home, you don't have to retreat in public though, if you're out in the street and you're trying to use your gun to defend yourself, there's a duty to retreat. Can you talk about that a little bit?

Well, the duty retreat exists. However, it has to be able to be done with complete safety. Now you tell me how you're in a life and death situation and you could retreat with complete safety short of beam me up Scotty. don't know how that exists. So if that scenario somehow exists where you could retreat with complete safety, then yeah, you're supposed to. But normally the complete safety factor is going to be very heavy there on duty to retreat. And they say we have castle doctrine, which applies to.

You don't retreat in your home normally under normal circumstances. You don't.

Does the duty of the retreat apply to non-lethal force such as the displaying of the firearm? Does the duty the retreat apply to that scenario where you're just displaying the firearm to deter someone who is maybe acting...

You can do, if you can retreat with complete safety, you're going to have to retreat. part of the thing that I run, yeah, and part of what I run into, particularly, and this is important, like a lot of the gun cases, they're road rage cases. And my client, the gun owner, is not the one raging. You got this crazy person with a 2000 pound guided missile, we call a car, that's trying to run them off the road, banging, whatever. And then the person who's the gun owner just shows their gun.

Evan Nappen Esq (01:10:20.398)
And then the person takes off, but they call the police and the gun owner gets arrested. And I see that over and over. So I have to tell folks, don't show your gun. Don't your gun is not a magic wand. Don't use it like that. And basically if you end up having to draw your gun, better because you're firing your gun and justified in doing so short of that, leave it in the holster because I see the tables constantly turn in the system against the law abiding gun owner who was.

Right.

Evan Nappen Esq (01:10:49.836)
merely trying to stop this other threat.

And in that, just piggyback on that a little bit. I've seen too many times where the person who tells the first story controls the narrative. And so you end up with this guy who was road raging, right? Calling the police, they all this guy showed his firearm to me. Well, he's not going to disclose that he was trying to run the guy off the road, right? He's going to say, wow, this guy is crazy. He showed his firearm to me. And now, you know,

It's just a he said, she said, right? It's like his word against the other guy's word. And now the person who owned the gun becomes the second person telling the story. the officer already has some amount of bias in what he thinks happened because he already heard the story from the other party. And now that person who is telling the second story has a gun and the officer knows he has a gun.

He is susceptible to more criminal life.

He's easy pickings. He had a gun and the person made the thread that he threatened him with a gun. So that's an easy charge that gets right. It gets me, you know, another case to my credit that I can charge him with and whatever and let the jury and the judge sort it out even.

Lou Casadia (01:12:12.27)
And even more so at that level, when you're talking about police officers and they have two contradicting stories and you know, they already heard the first story, which is that this guy displayed the firearm. And now the second story is that, maybe it wasn't self-defense. I'm not sure. I want to get this off my desk. I'm just going to charge them, send it to the prosecutor's office, let them figure it out. It goes to the prosecutor.

That's very common. That's one of the most common self-defense situations where we have to represent the law-abiding gun owner in the road rage case when they were not the rager at all.

Right. Right. And then, and then it gets to the prosecutor's office. Oftentimes the people screening cases and deciding whether to indict them are people right out of law school or judicial clerkships who have no experience. And those cases, if you don't have a lawyer who's advocating for you before it's indicted, they kind of just get put on a conveyor belt and it goes and gets indicted. And next thing you know, you're in front of a judge and going back from that point and getting a dismissal is

extremely difficult, extremely difficult. yeah, so, but to go back to what you asked me before, what's my second law that I hate the most? It is the 10 round limit law. That is number one, I hate that law. It's nonsensical. It does nothing to protect the community. It does nothing to punish people more severely. You have extended magazines. It is an absolute asinine.

Stupid law passed by a bunch of politicians who don't understand guns and don't understand. They don't even understand criminal law because they could have made it actually make a difference and actually affect criminal defendants who are using guns illegally and are possessing them illegally and have criminal intent, but they didn't. you know, and to give some background, New Jersey has a 10 round capacity limit. What makes me the most angry about it, Evan, is right before they passed that,

Lou Casadia (01:14:07.146)
It was 15 rounds and I had bought FN 45, which was a 15 round firearm. And then within a year they passed that law and suddenly my 15 round magazines were about to become illegal. So I had to go and pay to have someone put a limiter in them and epoxy it shut so I could legally own my gun that I just bought a year earlier. that way too, you know, making the world more safe. would then have.

10 rounds as opposed to 15 rounds in my home defense gun, you know, because God forbid, I, that was extra five rounds really make the community put the community.

My question I always ask is how many rounds is your life worth? Is your life worth five extra rounds, maybe three extra? I don't know, but the legislature decided your life's only worth 10 rounds. That's the limit.

Never in the position I hope I'm never in this position but like, know, I'm sure the guy who breaks into my house I'm gonna say I'm gonna now say hey Ten rounds, you know best made the best man win, you know, I only have ten in here I'm sure you only have ten too cuz you're you know, like you're Biden by the gun laws, know Meanwhile, you know, there's summer. I've seen some like they get the extended magazines. They could go All I had to do is go across the bridge. They could buy whatever they want in, Pennsylvania

They'll get the extended magazine. It sticks out like six inches from the bottom of the gun. They can shove like 30 rounds into it for a handgun.

Evan Nappen Esq (01:15:31.854)
Let me give you practical advice. The guy is a really mag with lots of rounds. They're gonna spray and pray. That's probably where they're going. You gotta make your shots count. So make sure you train a lot of You make each round count.

I definitely, you know, I-

New Jersey passed a law that requires us to be really great shots because they limit our ammo. So that means go to the range and do a lot of shooting. Okay? Right.

Right. So I was going to ask you though, I know that there's been some challenges to that round limit of law.

Yes, the association of Jersey rifle and pistol clubs, which is the key gun rights or umbrella organization of all the clubs and they're the NRA affiliate, by the way. They brought this action. My colleague, Dan Schmutter is one who is in federal court on this and we're waiting for a decision on the magazine challenge and the so-called assault firearm.

Evan Nappen Esq (01:16:32.0)
law challenge and the challenge to the carry killer bill that has all the sensitive places and all that. So these things are working their way through the federal court and we'll probably see a Supreme court case and the magazine and the assault, so-called assault firearm, is nothing but semi autos that have been put into this pejorative category of silliness. United States Supreme court has relisted now over a dozen times.

the Maryland and the Delaware cases on magazines and assault firearms, and I'm hoping they take it and they might. And when they do take that, that will, course, immediately, that will have the effect nationally to finally address magazines and semi-auto rifles. that's out there. And if there was cases to get jerseys on the way, eventually they're going to have to take one. just have to. There's a disparity of decisions in the jurisdiction.

If I remember last time I looked around it had actually been granted cert by the United States Supreme Court and then they and then they decided a second thought we're gonna send it back because they made it

They a GVR to Grant VK remand because it was part of Bruin. they GVR'd a number of cases back to then render a decision to be in conformance with the Bruin decision.

it still stands right now.

Evan Nappen Esq (01:17:49.862)
So right now it's waiting, it's been relisted, I lost count how many times, for the Supreme Court to decide whether or not to finally grant cert. So we're hoping they grant cert and then we'll get the answers constitutionally to magazines and seminars.

The third circuit find that it was lawful to restrict the capacity then after that was initially re-handed.

found on the ARs that AR is unconstitutionally prohibited on ARs, but they limited weirdly to the AR, which doesn't make any sense. So it's just limited saying, the Colt AR commonly produced, you know, so that gun's constituted to protect, but somehow none of the others are, which, know, bizarre decision, but it's still arguably a win, but it's still going up. So that's one that I'll see what happens there.

It's it's look I try to I try to Tote the line on on you know gun control. I'm not You know, I believe in some amount of gun control but what makes me angry is when you get laws like we're gonna put a 10 round limit on all guns and From a practical standpoint again, just like the hollow point round you get a fourth degree crime It doesn't enhance the penalties on anyone unlawfully possessing the gun. I mean you could have a guy

fire into a crowd with a 30 round magazine sticking out of the bottom of the handgun and there's no like he's not going to get a higher sentence because an extended magazine there's no mandatory penalty there's no mandatory consecutive there's a mandatory stipulations on it it's going to be sentenced concurrently to the gun possession all they had to do if they were really concerned about high capacity magazines make it an enhancement to the penalty of

Lou Casadia (01:19:38.174)
actual unlawful possession and use of a firearm to where if you got if you do something like that and you got an extended magazine maybe you to do an extra 12 months in prison right like that would make sense

If you tie it down lawful use, I can understand it, the only gun control I'm really in favor of is hitting your target.

Yeah. I just, yeah, I mean, I think it would, I don't know if I would really be one way or the other, you know, it would make at least more sense if they made it a limit on like just the manufacturing amount that the gun can hold, you know, like if the gun can hold 17 rounds out of the factory within the handle, then why are we restricting that? You know, like why are like, it's just ludicrous to restrict.

Well, New Jersey banned Logic in 1979, so that's part of the...

Yeah. So let me see what else we covered a lot. is there anything that you feel like we could talk a little bit more about? I have a few things written down here.

Evan Nappen Esq (01:20:40.558)
Well, one is rights restoration. Like I know a lot of rights restoration. can get expungements in New Jersey. So if you have a criminal record and you qualify, and it's important we do this because one of the wide disparities in terms of institutionalized racism is the ratio of convicted felons. So the United States government brought a case. was Dollar General BMW where they were challenging under the employment law. That individuals would be ready to be hired. And then when they did a background check.

And they had a conviction. They'd say, sorry, can't hire you. And the federal government said, look, blacks are discriminated virtually six to one under that. Cause it's more about six to one in terms of convicted felons and Hispanics are about two to one. So whatever the reason they put it forward as discriminatory in terms of employment. So why isn't it discriminatory in terms of something even of greater value, a constitutional right yet we prohibit felons from having.

firearms. Now let's just say we want to stop felons from having firearms and you need to have a relief mechanism so that law-abiding citizens that have rehabilitated, that are not a danger, that they should be able to get their rights back. Now when it comes to rights restoration, New Jersey has a mechanism to restore state rights called expungement. And New Jersey actually has a good expungement law. But if you have other offenses that may be federal,

Currently, you cannot get your rights back federally. And yet that is what's changing because President Trump, through the Justice Department, stopped what was prohibited by Schumer back in 92, eliminating the funding of the Federal Relief from Disabilities Program that made it so that worthy people that are law-abiding, rehabilitated, good people could get their rights back, made it

So they could no longer do it. It's been 33 years that people with convictions that were nonviolent, that should be able to get their rights back, have not been able to do it. President Trump has now opened that up federally by taking it out of ATF domain and putting it in the justice department to now process these applications. And by June, we should see the federal law opened up for restoring rights of federal felons.

Evan Nappen Esq (01:23:06.062)
If you're a Jersey convicted felon, there is a possibility there for you to get your rights expunged. And this is important to address the past inequality that exists and also to give the ability to anybody who is a good citizen now that has proven themselves, that's not a danger to get their rights back. We're talking about rights that have not been able to been restored for all this time.

So that's what's on the horizon federally. And we do a lot of that work in Jersey now. And it's very satisfying work because you're getting people their rights back.

Let me ask you about that. So that federal program, is that based off of a statute or is that just like a, you know,

Right now, can go to the law under Title 18925 and you'll see that there's a rights restoration process there that says, if you can submit your application to get a waiver of disabilities, and that's how it gets done. And what the administrative code federally said, ATF was to handle those applications. In 92, Schumer on a funding bill said, no money can be spent by ATF.

to process these things. And that's been in place.

Evan Nappen Esq (01:24:25.262)
As challenge, you went all the way up to the Supreme Court Bean case and the Supreme Court said, look, if the government doesn't fund it, it means the program's dead. It's just another way of eliminating it. So they upheld it. So individuals could not get their rights restored by being, because what happens is if the ATF were to deny your petition, you'd have a right to go to court. So individuals said, well, look, ATF isn't processing my petition. I want to go to court.

And the court says, no, no, no, we can't hear it because the administrative agency didn't take any action. And the Supreme Court said, yep, that's how it is. Too bad. Well, what Trump has done is a brilliant end run. He said, we're not even going to have ATF do these anymore. They put the administrative reg in, Justice Department is now doing them. Well, that has funding. So now the applications will be able to be processed. And it's been 33 years.

where individuals can finally get their rights back and by about June or so we should see that in place on the Fed.

actual, like if you get grant, if that's granted, is that, would that be considered an expungement or is that?

It restores your rights federally. Right. So that you're no longer federally disqualified, but certain states like New Jersey might still not recognize that and say, no, you're still convicted under New Jersey. And that will now be a separate court challenge to see if Jersey can deny second amendment rights to a federally restored felon because New Jersey refuses to recognize under full faith and credit, a federal action on

Evan Nappen Esq (01:26:01.536)
that area of rights. That'll have to be determined, but it's at least going to do it for the majority of real America where they actually respect Second Amendment rights, and this will get the restoration for these people that really deserve

What's that? guess just a little background information here. There's obviously, we'll just talk about New Jersey. Obviously, there's the whole permitting process in New Jersey, ultimately the goal is for you to buy a gun. Separate from that is the NICS check, which is the federal law and the federal background check. Right now, the NICS check, even if you got past the New Jersey state licensing provisions, if you have a federal conviction, even if it's for some sort of theft or something like that.

The next check is going to see that and they're going to say, no, you can't issue a gun to that person, right?

That is one way, but New Jersey will still run the databases and see your federal conviction too. At least they should. But then by the way, the federal NICS is a federal law, but New Jersey enforces federal NICS for the federal government. They're a POC, which is a point of contact. So New Jersey runs the NICS check, if you will, when you go to a dealer to buy it, the dealer calls it in, they're calling it into New Jersey who operates as a point of contact for the federal NICS.

You've also got your gun permit. So you're getting double and even triple layered at time on trying to buy a gun in Jersey. Cause first you go through the whole process for the getting the gun licensed state side. Then when you go to buy the gun, you're now getting NICS checked yet again, that's a federal law, but it's done through New Jersey who acts as a POC for the state.

Evan Nappen Esq (01:27:44.13)
times the databases do have data that one doesn't have or that one does, but normally they mesh up, but not always. And you'll see these issues. And then there's a problem with many times with false denials in NICs. They don't have the database. And right now the New Jersey state police are negligent in processing expungement orders. They were up to two years, even though you've got the order from the court ordering your records expunged. The state police were so behind, they've been sued.

class action by the public defender going two years before they scrubbed the database, even though you're no longer have that conviction because you've been expunged. So what happens is I get cases where individuals said, I got my record expunged. I even got the local police to grant my license because I provided them the expungement. And when I went to buy the gun, I got Nick's denied. That's because the database hasn't been cleared, even though you're actually.

not a prohibited person. That's another end of this. It needs to be addressed further. I understand they've gotten a little quicker. It's more like nine months now. It's still a ridiculous delay.

Yeah, I could tell you I actually just had a client. We filed it in August of last year. We checked it today and it showed complete. So it didn't say when it was completed, but you know, sometime I got back.

The database has been scrubbed.

Lou Casadia (01:29:02.232)
Yeah, that's because now they

That's the key. So you gotta wait till you know that and then that has to purge and merge to the Fed database. Then when the New Jersey POC accesses the Fed database, it comes up with nothing.

So yeah, so now New Jersey has, they just came out with recently a expungement tracking system that you can.

I mean look they are taking efforts to try to address it at least yeah that is out there but not really quite negligent and on their part how they let that go

They're not doing it to help people buy guns, they're they're doing I you know I think they're more doing it because they do believe in you know second chances and expungements and

Evan Nappen Esq (01:29:43.31)
And that's another thing that's important about it because it's not just guns. You know what? I'll tell you something when you prohibit Individuals from guns. You're not just proving for having guns. You're prohibiting them from getting into law enforcement or getting in the military from working in security You're putting this entire class of people that could be Incredibly productive citizens in these areas that we need people and you're stopping them. Yeah

Yeah. So yeah, I mean, it's interesting. I had someone call me and he's going to ultimately apply for that federal relief. And I told him, I said, look, you know, obviously, hopefully you get your granted that give me a call and you do because, the next step is going to be getting the New Jersey permit. And it's going to be interesting to see how they, how they. Interprets that because, you know, if you look at the statute, it says anyone with a felony conviction, whether it be state or federal.

cannot obtain a firearm. So it'll be interesting to see if they honor the federal relief or if they then say, well, no, you're statutorily barred. At the same time though, I know, you know, having gotten that call and done a little research, you know, there's been some movement even in locally at the third circuit level with the intermediate courts basically ruling under Bruin that the nonviolent prior conviction

constitutionally can't bar you from having a firearm.

Well, there are, there are as applied challenges. Yeah. Because remember it's a, it's a presumption, but you can rebut it. And we're seeing more of the rebuttal type as applied cases going forward on nonviolent, especially misdemeanors that can become disqualifier if you're convicted of a misdemeanor, but the jail time could have exceeded two years. And you see that as a, as another area of rights being denied based on

Evan Nappen Esq (01:31:36.448)
misdemeanors. So yeah.

Yeah, so, you know, I think if I had to guess, New Jersey is going to take the approach that restricts gun ownership more. So they're probably going to say,

I don't know why you'd say that, but okay.

Yeah, this federal relief isn't a full expungement and we're going to, we still see this conviction, so therefore we are going to deny you under state law and there will have to be someone who's going to challenge it constitutionally.

You may see the Justice Department going after New Jersey. wouldn't be surprised. New Jersey is ripe with the ability for the Justice Department to do what they're basically doing in LA. So I think you're seeing changing time. there's that risk out there for the state of New Jersey and the people that enforce these laws.

Lou Casadia (01:32:23.982)
We'll see when they roll out the, because then they're gonna roll it out in June. I'm sure it's gonna take a couple months for people to actually, the first batch to get the relief. And then we'll see how the New Jersey treats it.

Yep. We, there's always something in this field to be working on. There's no shortage of fun.

And then it also, you know, we didn't really talk about it and there's not really much to talk about, but I'll just mention it. There's also civil commitment expungements. They specifically say, even in the gun statute, that if you have a civil, prior civil commitment, you can't own a firearm from an objective standpoint just because it's listed as a disability, but you can expunge a civil commitment expungement. The statute explicitly says that that allows you to then remove that disability.

do plenty of those mental health expungements and New Jersey under Murphy passed a law making voluntary and involuntary a disqualifier so we need to get a mental health expungement. The mental health expungement law was basically added, enhanced, everyone to look at it after the 2007 NICS Improvement Act. New Jersey wanted the money to put the disqualifiers into the database but in order to get the fed money to do it they had to have an expungement program. So we have the expungement program to clear mental health records.

and that's important because mental health shouldn't be a crime and New Jersey treats it worse than a crime. It's easier to get a criminal expunged than a mental health expungement.

Lou Casadia (01:33:51.054)
Yeah, it is. It It is. I have one right now that I'm doing. You have to show. With the regular expungements, a lot of them, not all of them, but a lot of them are just completely objective. like, do you think there's enough time going by? Yes, granted. I mean, there's a few that they can object to depending on what the prior is, but basically just file on a piece of paper.

For the mental health expungement, you have to show that the person isn't a danger to community any longer and that requires

And you need a doctor to do a report and most doctors are cowards to say somebody's good for guns because they're afraid of the liability even though they know the person's good. So it's fraught with issues.

In my experience, you've to get an expert who specializes in these types of safety evaluations, cost thousands of dollars on top of your lawyer's fees. You're looking at eight to 10,000 to get a civil commitment expungement if you want to have someone represent you and have a good chance of winning. Which doesn't come by.

I really enjoyed speaking. I actually have a... I don't know who I have a conference I gotta do, so I gotta...

Lou Casadia (01:35:00.59)
No problem, no problem. Thanks for coming on Evan. I'm going to shoot you an email with my contact info if you ever need anything. I practice primarily down in the south and if you ever got a case that you don't want to drive down here for, keep me in mind.

Will, I appreciate it.

Evan Nappen Esq (01:35:20.396)
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