“Earlier this year, a 27-year-old medical professional named Shaneen Allen drove peacefully out of her home state of Pennsylvania and into neighboring New Jersey. Today, she faces the prospect of three years in prison,” Charles Cooke writes at National Review Online. “When she crossed the state line, Allen was carrying a concealed weapon. ‘I work two jobs and I work late, and getting up at that time of night I got robbed twice last year,’ Allen told MY9NJ’s Bill Anderson. A friend recommended that she get herself a concealed-carry permit. This she did, fulfilling not only the requirements established by the state of Pennsylvania but the tougher restrictions that her city of Philadelphia imposes on top . . .
Pulled over near the border by New Jersey police for an ‘unsafe lane change,’ Allen informed officers that she was carrying a pistol. Her honesty landed her in serious trouble. Immediately, she was arrested and charged with both illegal possession of a firearm and possession of hollow-point ammunition. It was, her lawyer, Evan F. Nappen, tells me over the phone, ‘the most technical of errors. She thought her permit was treated like a driver’s license and was valid everywhere. And why wouldn’t you?”
TTAG readers, being better informed on such issues, would be likely to know better, but most citizens?
“Nappen isn’t surprised. ‘This is about New Jersey’s draconian anti-gun attitude,’ he tells me:
Here, simple unlawful possession of a handgun is a crime of the second degree. The only degree higher is murder! . . . I have other — four or five — cases of licensed law-abiding Americans who are being charged in this county with the same type of situation. . . . If she is convicted, the judge will have no say. He has to pass a sentence of between three years minimum and ten years maximum.
This is a dire outcome in and of itself… But, for Allen, it would be disastrous. The conviction would render her a felon, almost certainly preventing her from working in the medical profession again and prohibiting her from owning or carrying a gun for her protection. Worst of all, it would take her — a single mother — away from her two children.
New Jersey issues fewer carry permits than almost any other state in the union, and the chances of getting hold of one as an outsider are effectively nil. Worse, the state accepts permits from not a single other jurisdiction — not even those that neighbor it. For anyone who lives on the border, this is a real problem.”
As Farago noted in his initial blog post on the Allen case, ignorance of the law is no excuse. However, there are several filters built into the criminal justice system that may–I repeat, may–prevent this kind of excessively punitive treatment of honest citizens.
In this, and similar cases, the police have generally unlimited discretion. There are so many laws on the books, including many that were intended to “make a statement,” that officers–and other rational beings–understand that it’s impossible to enforce them all. Indeed, it would be a gross miscarriage of justice to try to enforce them all.
As long as they are not obviously being negligent in the pursuit of their duties, police officers may choose not to arrest people for every infraction that comes to their attention. This happens every day across the nation, when officers choose to give citizens a warning, or merely to inform them of the law, rather than giving them a ticket or arresting them for a wide variety of infractions.
Normally, officer’s superiors don’t know about each of these incidents of common sense and street-level correction of lunatic legislation, and that’s just fine with them. However, sometimes, because of political heat, or because public sentiment on a given issue is so strong, officers understand that they have less room to exercise discretion on those issues. Sometimes, their superiors more or less order them to enforce certain laws very strictly. And sometimes, officers are just badge-heavy and do their best to arrest everyone they can.
Prosecutors have essentially unbridled discretion. While they too are subject to political pressures and to the shifting winds of public sentiment, their use of discretion is generally less subject to review than that of police officers. They can bargain charges down and even decline to file charges. They can even enter into a variety of diversion agreements where a person charged, by avoiding any charges for a set term, may find the charge dismissed entirely. Interestingly, prosecutors often bargain down charges, and if sufficient public pressure is applied sometimes dismiss them.
“Discretion is a big factor in the Allen case, too. According to Nappen, Atlantic County Prosecutor Jim McClain could have put Allen in a diversionary program for first-time offenders of victimless crimes that would have allowed her to avoid jail time. He didn’t. ‘Let’s remember, Shaneen Allen volunteered to the police officer that she had a gun and a permit,’ Nappen says. ‘This isn’t something she was trying to hide. She didn’t think she’d done anything wrong. This was a victimless crime, and it’s just unconscionable that they’re putting her and her family through all of this. It could all be avoided.’ Nappen says McClain has yet to give a reason for refusing to allow Allen into the diversionary program. McClain’s office did not respond to a request for comment.”
“These mandatory sentences sometimes create really unfortunate results. My own academic research indicates that Ms. Allen is the type of person who benefits the most from having permitted concealed handguns: a minority woman who lives in high-crime urban areas. The people who are most likely to be victims of crime are the ones who benefit the most from having a gun for protection. In addition, women benefit much more than men do because they tend to be much weaker physically than their attackers.’
‘Jay McKeen, public information officer for the Atlantic County Prosecutor’s Office, said Allen has a pre-trial conference scheduled for Aug. 5. Prosecutor James McClain declined to comment on the matter, McKeen said.”
Generally, when stopped for a traffic violation, the police have no ability to search your car, and usually no interest in so doing. However, in anti-gun states, police officers often ask as a means of fishing for sufficient probable cause to search and arrest. In such cases, it’s best to simply, politely decline to answer. “I’m sorry officer, but I don’t think that has anything to do with a lane change.”
In a traffic stop, citizens are obligated to provide their license, registration and insurance, but they’re not obligated to answer every question an officer might ask. In Shaneen Allen’s case, she obviously believed she was doing nothing wrong and was trying to be helpful to the officer. Failing to acknowledge such honesty is not something that tends to build support for and confidence in law enforcement.
That said, there are some places where hyper-vigilant enforcement of certain laws is a virtual certainty. No gun owner should expect anything but arrest and imprisonment in New Jersey, New York, California, Chicago, New York City and a variety of other places if they violate any obscure firearm ordinance in the most minute way. They may stumble onto a rational police officer or an understanding assistant district attorney, but that’s never to be counted upon. In some places, officers and prosecutors just don’t care what the public thinks of them. Ironically, such people tend to work in anti-gun cities and states.
Let the honest gun owner beware.
Mike’s Home blog is Stately McDaniel Manor.