New Jersey's Assault Weapon Hoax

"A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis."

-Grayned v. City of Rockford^[N.1]

"Vague statutes offend due process by failing to provide explicit standards for those who enforce them, thus allowing arbitrary and discriminatory enforcement"

-Papachristou v. City of Jacksonville^[N.2]

"The absence of specificity in a criminal statute invites abuse on the part of prosecuting officials, who are left free to harass any individuals or groups who may be the object of official displeasure."

-Kadish & Schulhofer^[N.3]

If, as Judge Hanifan, J.S.C. had suggested, there had been an immediate need to get inside the Cassidy home in the middle of the night without a valid search warrant, then why had Tom not been arrested when the officers finished searching throughout the home, locked containers, and gun cases? Would these same police officers decline to arrest a child pornographer or an individual who distributes dangerous drugs to school children? We do not equate the "crime" of "assault firearm" possession with crimes of drug distribution or child pornography. We simply seek to use analogous third and fourth degree crimes in order to gain some insight into why the police officers had waited almost two weeks to take action against a "crime" in which Judge Hanifan had believed there was an immediate need in which to conduct a midnight warrantless search and seizure. (Don't forget, the "crime" that led police to embark on their midnight warrantless search and seizure was a triple hearsay allegation of "verbal harassment" that appears to have originated from a 79 year old security guard!)

Some Basic Firearm Definitions
Semiautomatic Firearms: First introduced in 1885. Firearms that require the shooter to pull the trigger for each shot fired. After each shot, the gasses produced by the ignition of a cartridge cycle the action and chamber another cartridge. When the shooter pulls the trigger again, the same "self-loading" occurs, and the firearm is again ready for firing.
Automatic Weapons: First introduced in 1889. Often referred to as "machine guns", employ the same type of self-loading action as semiautomatic weapons, but they do not require a pull of the trigger for each shot. As the trigger remains depressed the weapon continually fires until either the ammunition is exhausted or the shooter releases the trigger. This category also includes burst-fire weapons. These weapons have been strictly regulated since 1934.
Burst-Fire: Essentially, this is an automatic weapon that incorporates a mechanism that limits the amount of automatic fire. Generally, the burst feature will fire 2 or 3 rounds of ammunition automatically, requiring the shooter to pull the trigger again for another burst of fire. (Ex. M-16A2 US Service Rifle incorporating 3 round burst feature).
Selective-Fire: Means that by the manipulation of a switch or lever the weapon can fire either fully automatically or semiautomatically.
Actual Assault Rifles: First introduced about 1944. These are short, compact, selective-fire weapons that fire a cartridge intermediate in power between submachinegun and rifle cartridge (Defense Intelligence Agency).
Assault Firearm: Today, this term has entered the political lexicon, now meaning a "military-looking" semiautomatic weapon, which is frequently assumed to be the "weapon of choice" of criminals and also assumed to be readily convertible into a machine gun" (Kasler v. Lungren). Apparently, this is what NJ is seeking to criminalize. Guns that have been in existence since 1885! Guns that are legal in the 49 remaining United States! Law abiding firearm owners in New Jersey are subjected to malicious criminal prosecutions!

One possible explanation is that the police officers knew that they had lied to the Cassidy's and did not possess a valid search warrant. They also knew that the Cassidy's did not consent to having their house "torn apart" in the middle of the night. Indeed, The Fourth Amendment to the United States Constitution prohibits the police from making a warrantless and nonconsensual entry into a person's home in order to make a felony arrest ^[N.7]. It is quite probable that the police officers knew that they had violated the civil rights and civil liberties of the Cassidy's from their initial raid and illegal search and seizure on March 14, 1996.

"In short, assault weapons are not the real problem in gun related crime."

-Samuel Walker[N.8]

Still other possibilities include scenarios that the United States Supreme Court had warned us about in 1972. As noted above, the Court found that "vague statutes offend due process by failing to provide explicit standards for those who enforce them, thus allowing arbitrary and discriminatory enforcement." If the police, prosecutors, judges, legislatures, and other officials in New Jersey do not know what "assault firearms" are, then how can they expect the ordinary citizen to know?

One must question why Thomas Cassidy is now threatened with a maximum sentence of 29.5 years in prison some four years after the illegal search and seizure that occurred in his home. For Tom was not even arrested until almost two weeks after the officers had raided his home. Could it be possible that the United States Supreme Court Justices knew what they were talking about when they ruled on vague statutes in the above cited cases? Is it possible that persons of "official displeasure" could be harassed by prosecuting authorities? We believe so. If you are in doubt, you have much more reading to do at our site. For now though, let us now turn our attention to a brief bit of history of "assault firearm" legislation in the State of New Jersey.

Assault Weapon Defined: "Today, this term has entered the political lexicon, now meaning a "military-looking" semiautomatic weapon, which is frequently assumed to be the "weapon of choice" of criminals and also assumed to be readily convertible into a machine gun"

-Kasler v. Lungren^[N.9]

In 1995, Chuck Davis, a spokesman for the State Attorney General's Office, told The Sunday Star Ledger in an interview that "if they don't catch you with the weapon [in a criminal act], they're not going to charge you. We're not going to get a search warrant and search somebody's home. That was not the intent of the law." In the same news article, it was reported that only 26 firearms had been surrendered to authorities after the enactment of the law in 1990. Estimates as high as tens of thousands remain in the State of New Jersey.^[N.14] Yet despite the assurances of the Attorney General's spokesman, police agencies in New Jersey are raiding homes in the middle of the night. Worse yet, they have claimed to be acting under the authority of a valid search warrant. And let us also assure you that they will commence with a long, dirty, and malicious prosecution!

The rifle pictured below is legal to possess in Monmouth County, NJ. Is this rifle legal in Sussex County, NJ?

Norinko MAK 90 Rifle- This 7.62*39mm rifle was deemed legal by Monmouth County Superior Court!

On February 26, 1996 Monmouth County Superior Court Judge Michael D. Farren, J.S.C. dismissed an indictment against Robert D. Merrill. The Judge declared that the definition of "assault firearm" is unconstitutional for vagueness and due process. Judge Farren correctly observed that the possession of magazines capable of holding more than 15 bullets as violative of due process if they had been obtained prior to the enactment of the statute. Moreover, Judge Farren held that the statutory provision making it a crime to possess a semi-automatic firearm that is "substantially identical" to a banned weapon as vague. In his decision, Farren stated "This defendant is charged with possessing a Norinko MAK-90 semi-automatic rifle that is allegedly 'substantially identical' to a list of 37 weapons from the four corners of the globe. How is this defendant or any defendant to know if his firearm is 'substantially identical' unless he is intimately familiar with the nomenclature of the other 37 weapons. This is an impossibility and a task which the law cannot require."^[N.15]

On July 11, 1996 Sussex County Assistant Prosecutor Vincent J. Connors, Jr. leads the Grand Jurors of Sussex County into indicting Thomas Cassidy for the unlawful possession of assault firearms. Apparently, this indictment stemmed from firearms that were illegally seized in the midnight warrantless search and seizure. This is the same Vincent J. Connors, Jr. that had- in an overt act of prosecutorial misconduct- dismissed the complaint filed by Tom and secured his wrongful conviction on February 4, 1997!

The rifle pictured below is illegal to possess in New Jersey!

Marlin Model 60 Rifle- This .22 caliber rifle was deemed an "assault firearm" by the New Jersey Appellate Division Courts!

Yet on October 21, 1996 the Superior Court of New Jersey, Appellate Division upheld Joseph Pelleteri's conviction for possessing an "assault firearm", specifically, a Marlin Model 60 .22 caliber rifle. In their opinion, the Court declared "When dealing in guns, the citizen acts at his peril."^[N.16] In other words, this could be any one of you law abiding gun owners in New Jersey! Perhaps it is time for you to get involved before you are maliciously prosecuted too! Can you imagine New Jersey's most dangerous drug traffickers toting Marlin Model 60's over their shoulders in some of our most urban neighborhoods as Colonel Dintino had testified? This we find difficult to believe. It is also extremely unlikely that any urban drug dealer would carry any cumbersome rifle through the streets to conduct the stealthful processes of drug distribution.

Also in October of 1996, the Coalition of New Jersey Sportsmen had filed a challenge to the New Jersey "assault weapon" law in the United States District Court for the District of New Jersey. This case is currently on appeal in the U.S. Court of Appeals for the Third Circuit.

These two rifles pictured below are now legal to possess in New Jersey!

Colt Match Target Rifle .223 caliber (above).

Springfield M1A .308 caliber rifle (above).

Interestingly, the State of New Jersey Attorney General's Office issued a directive to all county prosecutors on March 31, 1997. In this letter, Debra L. Stone, Deputy Director, Operations states that the Colt Match Target Rifle and the Springfield M1A are no longer prohibited under state law!^[N.17] That's correct, folks! The rifles on your immediate left are now legal in New Jersey while those of you who like to plink with a .22 caliber may enjoy a criminal prosecution in the State of New Jersey!

Remember our lessons from above regarding vague laws? Recall that we have learned that in the absence of specificity in a criminal statute invites abuse by prosecuting officials? Well guess what folks. It is true! On March 28, 1998 Judge Gerald B. Hanifan, J.S.C. dismissed Count Five of the indictment against Thomas Cassidy based upon the above March 31, 1997 directive issued by the Attorney General's Office. Although not specifically named in the indictment, one of the firearms Tom had been charged with criminally possessing was now once again legal! Yet despite Judge Hanifan's ruling and the Attorney General's directive, Sussex County Assistant Prosecutor Francis Koch stated in open court that he would seek to bring that charge back in front of the Grand Jury. In other words, he said that he would seek to re-indict Tom for a firearm that was now legal! Didn't the United States Supreme Court warn us that these officials would engage in this type of harassment? Thus far however, to our knowledge, Assistant Prosecutor has not re-indicted Tom for the criminal possession of a Springfield M1A rifle.

At this point, you may be a bit confused as to what firearms are legal and which ones are not. That's O.K. Because so is everyone else! But what is most offensive is that because of this vagueness officials do have the power to pick and choose who they prosecute on an ad hoc and subjective basis. Prosecuting officials are indeed left free to harass those of official displeasure. Remember how Tom sought damages in the amount of $2 million dollars for a violation of his civil rights? Recall how the Sussex County Justice officials have conspired by filing cover charges, creating previously non-existent probable cause, wrongfully convicting, getting Tom wrongfully fired from NJDOC, and a host of many other egregious events! In other words they do in fact harass those of official displeasure! Despite a bit of confusion, let us now turn our attention to the "substantially identical" provision of N.J.S.A. 2C:39-1 (w)(2).

"Substantially Identical"

"Unfortunately, 'substantially identical' is a contradiction in terms because if something is identical, it is exactly the same. If it is substantially the same, it means slightly different. How can something be identical and slightly different at the same time?"

-Evan F. Nappen

What the "substantially identical" provision in the law does do however, is allow prosecuting authorities to prosecute those who are the object of official displeasure. It is the exact same situation that the U.S. Supreme Court sought to prohibit in 1972. But rather than embark on an extended discussion of this provision, below we shall attempt to demonstrate the potential dangers inherent in this provision by singling out merely two firearm manufacturers out of the laundry list of 37 firearms named in the statute. N.J.S.A. 2C:39-1 (w) attempts to define what the legislature means by "assault firearm". For example, Colt AR-15 and CAR-15 series and Bushmaster Assault Rifle are merely two of 37 firearms listed. Incidentally, these names and many others are machine guns, even though the legislature believes that it is banning semiautomatics!^[N.18]

Legal or Not?
Colt Accurized Rifle (above) .223 caliber semi-automatic rifle.
Colt Sporter II (above) .223 caliber semi-automatic rifle.
Bushmaster XM15 E2S (above) .223 caliber semi-automatic rifle.
Bushmaster XM15 E2S AK Shorty (above) .223 caliber semi-automatic rifle.
Bushmaster M17S Bullpup (above) .223 caliber semi-automatic rifle.

In the display that we have constructed at the right, we have acquired images of just a few of the many rifles produced by just two firearms manufacturers that are named in the statute- Colt and Bushmaster. All of the firearms at the right are semiautomatic firearms. All of these guns fire a .223 caliber cartridge, one shot at a time, for each squeeze of the trigger. Are these guns legal in the State of New Jersey? We do not know. But even more shocking is the fact that those who created and enforce these laws do not know either! However, if you are the object of "official displeasure", then you too will likely be prosecuted.

Now let us try to analyze this "substantially identical" provision for a moment. The legislature has declared that any rifle that is substantially identical to the laundry list of misnamed firearms in the statute is also prohibited. As noted above, the Colt Match Target rifle is now legal as of March 31, 1997. Are the firearms displayed at the right also legal? Aren't they "substantially identical" to the Colt Match Target rifle?

As you can see, the "substantially identical" clause permits officials to enforce the law arbitrarily, on an ad hoc and subjective basis. Under this rationale, anyone who has a firearm that resembles the .22 caliber Marlin Model 60 rifle in their home may be prosecuted too. We believe that there are many of you out there who may fall into this terrible trap that the State of New Jersey has set for you.

Why has the legislature constructed such an elaborate ruse? In observing the malicious application of the law firsthand, we believe that the State of New Jersey wants to ban all semiautomatic firearms. But rather than propose such a drastic measure that the public is likely disapproving of, the legislature cleverly attacks an insignificant proportion of guns that are rarely used in crimes. In this clever ruse, many previously law abiding citizens are maliciously prosecuted.