A Possible Defense When You Are Prosecuted for Possessing a Shockwave (Despite the NJ State Police “Interpretation”) By Evan F. Nappen, Esq.
An email was recently sent out to FFLs in New Jersey with a message from “THE NJSP FIREARMS INVESTIGATION UNIT.” It stated “…Mossberg Model 590 Shockwave, Black Aces Tactical DT and the Remington TAC-14. The New Jersey State Police Firearms Investigation Unit concurs with the Bureau of Alcohol Tobacco and Firearms (BATF) that these pistol grip only designed firearms are legal for sale in the State of New Jersey as a firearm.”
The email further states “As such the firearm will be sold utilizing normal retail sale procedures required under Federal and State law. The required State paperwork will include the Certificate Of Eligibility and not a Permit To Purchase A Handgun & Form Of Register.” This means obtaining one of these firearms is easier than transferring a handgun, and there is no registration.
This attorney respectfully disagrees with the State’s legal analysis. (See ---- http://www.evannappen.com/is-the-mossberg-ldquo590reg-shockwaverdquo-legal-in-new-jersey.html) This “interpretation” by the NJSP might be ignored or challenged by an aggressive prosecutor, or the BATF or the NJSP might reverse themselves. (BATF has reversed themselves too many times to count and the NJSP has done so as well. For example, remember temporary blocked large capacity magazines which went from legal to illegal.)
You might find yourself charged with unlawfully possession of something you could have sworn the NJSP said was lawful. Here is a defense to such a State criminal charge that you may consider using.
N.J.S.: 2C:2-4. Ignorance or mistake c. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(2) The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (a) a statute, (b) judicial decision, opinion, judgment, or rule, (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or
The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence. (Emphasis Added)