Posted on 05/25/2012 5:17:16 AM PDT by marktwain
From today’s State v. Brek (N.J. Super. Ct. App. Div. May 22, 2012):
In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice–President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President’s plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant’s work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.
Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12–3b, receiving stolen property, N.J.S.A. 2C:20–7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39–3f(1). A restraining order was issued barring defendant from any contact with the President or his family.
Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant’s possession when he was arrested at his place of employment….
On November 12, 2009, defendant pled guilty to two counts of disorderly persons harassment against the two individuals who heard defendant’s conjectures at the lunch truck, N.J.S.A. 2C:33–4. Both weapons charges were dismissed. At that time defendant requested the return of all property seized from his home, but the prosecutor refused.
On July 12, 2010, defendant moved before the trial judge who had taken his guilty plea for an order compelling the State to return his property, except for the hollow point bullets and stolen rifle. The State filed a written opposition to the motion, which failed to cite any statutory, regulatory or precedential authority. At the hearing on the motion, the assistant prosecutor “concede[d] that after thorough investigation by the federal authorities, the Port Authority police and my office, that we did not see this as a major threat.” The prosecutor also acknowledged the two mental health evaluations that defendant had in prison, which “the State concede[d] he passed.” Nonetheless, based upon “the whole totality of the circumstances,” the State opposed the return of the weapons. In denying defendant’s motion, the trial judge, without providing any legal basis, ruled:
[W]e live in a very different time [since September 11, 2001] and in a very different world; we don’t engage in certain conduct involving words or acts that can be interpreted as threats to our elected officials, threats to our citizens, threats to the health, safety and welfare of everyone. And that phrase, or concept, the public health, safety and welfare, I think trumps everything…. Mr. Brek’s character is not at issue. At no time has the State — at least to my knowledge — brought … [Mr.] Brek’s character into this…. I believe that the public health, safety and welfare of our citizens does come into play here, and accordingly, I am going to deny Mr. Brek’s application for the return of his weapons.
This appeal followed.
Guess how the New Jersey Superior Court Appellate Division ruled, and then read on.
It is not disputed that the property seized by the State that defendant requests be returned was lawfully acquired, that plaintiff had obtained the necessary permits to purchase the firearms, and that defendant’s possession of the firearms and other weapons in his residence was lawful. Thus, the State has alleged no facts before the trial judge or on appeal that would give rise to a claim of prima facie forfeiture. N.J.S.A. 2C:64–1a(1). Consequently, the State could only seek derivative forfeiture of defendant’s property, for which it was required to bring a civil action within ninety days of its seizure. N.J.S.A. 2C:64–3a.
Not only has the State failed to file a timely civil action, it has provided no extenuating circumstances to request an equitable extension of time. More importantly, the State does not make a claim or allege any facts to demonstrate that the property seized meets the statutory definition of derivative contraband, N.J.S.A. 2C:64–1a. Nowhere in the record does the State allege that the property at issue was used in furtherance of a crime, as an integral part of an illegal activity, or as the proceeds of illegal activity.
Instead, the State argued that forfeiture was appropriate because defendant’s possession of hollow point bullets and a stolen rifle had shown that he was a threat to the public health, safety and welfare. The State compared the forfeiture of defendant’s property to the revocation or denial of a firearms permit if a person is found to be a threat. N.J.S.A. 2C:58–3. The trial judge, without referencing any statute, also used this analogy. We reject this argument as inapposite. This action does not involve the application for or revocation of a firearms permit under N.J.S.A. 2C:58–3, which is based upon a different statutory scheme than the Forfeiture Act. Furthermore, the property held by the State consists of many items, such as knives and bows and arrows, not covered by the firearms law.
Based upon the record before us, we cannot uphold the trial judge’s finding that the State had the right to retain defendant’s property as it was not based upon the required procedure in the Forfeiture Statute. Under that law, the State was required to file a civil action for forfeiture within ninety days of the seizure of the property. N.J.S.A. 2C:64–3a. The State neither made the requisite filing nor proffered extenuating circumstances for an extension of that time limitation. Even when requesting a remand for a forfeiture hearing, the State did not contend that requisite facts existed to prove the elements for prima facie or derivative contraband under N.J.S.A. 2C:64–1a. Accordingly, as the State had not moved timely under the Forfeiture Act, defendant is entitled to have his property returned to him.
I GOTTA move the hell out of this state.
I wonder how many actual firearms were involved since they tossed in arrows, hollow points, and other ammo as part of the 70 seized "weapons"?
Did they count each bullet and arrow so the could get the fear mongering count of 70?
It is a shame he pled guilty to the bogus harassment charges. He probabaly did so to avoid further expense and the remote possibility of being found guilty. He probably admitted enough during the plea allocution to establish there was probabale cause for the arrest. That likely destroyed his false arrest claim.
It would be nice if there was insurance to pay defense costs for innocent people who are placed in this type of situation
Spelled checked. (Gotta remember:probable = pro-bable)
It is a shame he pled guilty to the bogus harassment charges. He probably did so to avoid further expense and the remote possibility of being found guilty. He probably admitted enough during the plea allocution to establish there was probable cause for the arrest. That likely destroyed his false arrest claim.
It would be nice if there was insurance to pay defense costs for innocent people who are placed in this type of situation
All things considered, a very lucky guy. It is my understanding that it is illegal to posses hollow point bullets in New Jersey. Correct? That coupled with the possession of a stolen gun could have turned out much worse for him.
If the electorate are dumb enough and ignorant enough to elect a Marxist Muslim radical who thinks they pay too little for gasoline and energy, eat too well, are too warm in winter and too cool in summer and that they live in a country which is the cultural and moral equivalent of some primitive living in a third world hovel, a man with clear ideological ties to Muslims, so be it.
The REAL problem is not Obama. Its the idiots who put him in office and who continue to support him.
Yes, hollow points are illegal in New Jersey, as so many OTHER things are.
The biggest industry in New Jersey is the Law Courts and the best way the legislators here can make sure they generate as much business for themselves as possible (a LOT of them are attorneys) is for them to generate as many idiotic laws as possible.
The whole thing almost makes me laugh. When I reported a co-worker to the Secret Service in 2004 for making what I thought was an overt threat to President Bush, who was coming to town the next day (he said “Did you hear President Bush is coming to town? I bought a gun for the occasion”), the Secret Service did NOTHING, but they did follow up on a post I made here on FR about the incident, which took weeks for them to subpoena the records from JimRob to find out who I was.
This guy didn’t even come close to making the same kind of threat, yet they called out the dogs on him immediately.
A guy I knew somewhat brought me a Saturday night special ( a BRYCO .25)about 15 years ago, and asked if I could fix it. I did and at considerable expense and time to myself. Told him to come get it and gave him a bill for $35.00. He said no, he’d found it on the side of the road and didn’t want to pay that much. Red lights went off in my head, so I took it to the sheriff in my county who found it was stolen in WV, used in a murder in Pittsburgh, and I got arrested. Took a while, but everything was thrown out, no record and I’m still out my time and money.
What did he do? Write a book about how to kill Bush? Talking about lax security doesn’t seem to rank up there with threats.
Or stand and fight... This is a cancer that is metastasizing throughout our body politic. It doesn’t end at NJ’s border any more than it does at California’s or Illinois’ borders.
The country is ruled by Ivy League Lawyers from both parties, who pass 1000’s of laws every year to maintain their incumbency and mine $’s from the entertainment addicted, dumber & dumnber, peons.
NEVER consent to a search of anything by anyone, without first talking to a lawyer.
Sounds like he pointed out a security flaw, someone got embarrassed, and took it out on him. Bottom line: Don’t criticize the system or it will come for you.
It should be unconstitutional for a Lawyer, an Officer of the Court, to be either a legislator or a Chief Executive.
Its a clear violation of the Separation of powers concept.
It is NOT illegal to own/transport hollow point ammo in NJ:
http://www.state.nj.us/njsp/about/fire_hollow.html
Exactly - he mentioned an obvious shortcoming and should be praised vs. excoriated.
One hopes that the Secret Service would think of and voice the exact same comments that this guard made.
Aren’t security people supposed to be thinking about risk?
Probably included such weapons as, Hammer, phillips head screw driver, hand saw, large rock yard ornament, etc...
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