The topic of arms, bearable arms, arms that are appropriate for self-defense, etc., is explored here at TTAG on a daily basis. When it comes to self-defense, though, we can’t exclude improvised weapons in addition to conventional arms.
It’s well known that weapons used offensively in an unprovoked attack shifts the window from being protected by the Constitution to illegal behavior. Such behavior was the subject of a recent conflict in Lakewood, New Jersey that resulted in hospitalizations as a result of a machete attack.
Authorities are investigating what led up to an apparent machete attack in Lakewood that sent one teen to a trauma unit due to blood loss and left two other teens hospitalized, Lakewood police said Monday.
Lakewood police were called to Monmouth Medical Center Southern Campus shortly before 11 p.m. by medical staff saying they had three people with stab wounds, Capt. Gregory Staffordsmith said.
The teens told police they had gotten out of their vehicle during an argument with people in another vehicle at the intersection of Ocean and New Hampshire avenues, Staffordsmith said. The victims told police they were attacked by two people with what is believed to be a machete during the confrontation at the intersection, he said.
Keen readers have already concluded that this attack probably didn’t have to happen. Getting out of your vehicle during a confrontation with another driver doesn’t constitute good conflict de-escalation technique. This wasn’t an accident that spurred the victims to exit their car in the middle of an intersection, it was an “argument.”
Not knowing all of the details – and these were teens – we can’t know exactly what happened, but it seems likely that the “victims” in this case likely wouldn’t have been attacked if they’d stayed in their vehicle.
Assuming avoidance wasn’t in the cards, what personal defense options did they have? Not many.
New Jersey is a state that affords the average citizen few options for self-defense outside the home. The most viable legal option for the teens is pepper spray. If they’re old enough.
As per NJ 2C:39-6(i)(1) we have [emphasis added] . . .
Nothing in N.J.S.2C:39-5 shall be construed to prevent any person who is 18 years of age or older and who has not been convicted of a crime, from possession for the purpose of personal self-defense of one pocket-sized device which contains and releases not more than three-quarters of an ounce of chemical substance not ordinarily capable of lethal use or of inflicting serious bodily injury, but rather, is intended to produce temporary physical discomfort or disability through being vaporized or otherwise dispensed in the air. Any person in possession of any device in violation of this subsection shall be deemed and adjudged to be a disorderly person, and upon conviction thereof, shall be punished by a fine of not less than $100.
In the beautiful Garden State, the best case scenario would have been the teens were innocent parties during the argument, 18 years or older, with clean criminal records. That would have given them a chance to defend themselves — with pepper spray — and possibly avoid being hacked to pieces like in a slasher movie.
If they were under 18 years old, though, they were SOL. No pepper spray for them. Essentially, they would be – or rather are – left completely defenseless under the law. And let’s be honest, as effective as pepper spray can be, a machete probably comes out on top.
You may be wondering, what if they were carrying pocket knives? Wouldn’t that be a good self-defense option? Not in the Garden State, as possession of a knife carried expressly for self-defense is forbidden.
From NJ 2C:39-5(d) . . .
Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.
Think that’s too broad a reading of the law? Consider the case of State v. Kelly, which went to the New Jersey Supreme Court. From that 1990 opinion, some details and then the judgment [emphasis added] . . .
Defendant, Rochelle Kelly, repeatedly slashed Randolph Boone on a street corner in Trenton, with a carpet-cutting razor. She had recently broken off her tumultuous relationship with Boone because on many occasions he had beaten her severely. Approximately four hours before defendant slashed him, Boone had warned defendant in a threatening manner not to walk around the corner where he usually spent his free time. Defendant armed herself with a razor before she went outside, in case she needed to defend herself against Boone. When she crossed the corner in question, Boone allegedly began to punch her, whereupon she slashed him with the razor.
The jury acquitted defendant of aggravated assault, N.J.S.A. 2C:12-1, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, but convicted defendant of possession of a weapon “under circumstances not manifestly appropriate for such lawful uses as it may have,” N.J.S.A. 2C:39-5d (hereinafter section 5d). The narrow issue presented is whether the trial court erred in refusing to instruct on self-defense as a justification to the section 5d offense. We hold that the trial court did not err in refusing to give the self-defense instruction. Self-defense does not excuse possession of a weapon in violation of section 5d except in “those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger.”
Although defendant correctly argues that the circumstances surrounding the possession of an instrument must be considered in determining whether the possession is appropriate, defendant clearly admitted to possessing the carpet cutter as a weapon, not as a work-related instrument. As a matter of public policy, by criminalizing possession of weapons in anticipation of a future need for self-defense, the Legislature intended to keep instruments from being used as weapons. Hence, we hold that section 5d prohibits the possession of implements as weapons, even if possessed for precautionary purposes, except in situations of immediate and imminent danger.
Accordingly, the trial court’s instruction to the jury that “one may not arm himself or herself with a weapon in anticipation of a possible need to use that weapon” was correct under the circumstances of the case. Defendant’s possession of the weapon did not fall within the Harmon immediate danger exception.
That pretty much this leaves the teenagers in question with zero options outside of pepper spray, and again that’s only if they’re of age. Anything else would have to meet the standard set forth in the case law, “implements as weapons, even if possessed for precautionary purposes, except in situations of immediate and imminent danger.”
Another thing that didn’t protect the teens is an opinion from another case which also involved a machete attack in New Jersey.
In 2017, the New Jersey Supreme Court rendered an opinion in a case named State of New Jersey v. Crisoforo Montalvo.
In 2012, defendant Crisoforo Montalvo engaged in a confrontation with his downstairs neighbor Arturs Daleckis. Following an argument about noise, Montalvo broke a small outdoor table belonging to Daleckis. Daleckis knocked on Montalvo’s front door. Fearing reprisal for the damage to the table, Montalvo answered the door with a machete in his hand. According to Montalvo, he never raised the machete at Daleckis and never exited his apartment with it. Daleckis, however, claimed that Montalvo pointed the machete at him and later used it to damage their shared porch.
As a result of this altercation, the State charged Montalvo with unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Regarding the unlawful possession charge, the trial judge instructed the jury that self-defense does not justify possession under N.J.S.A. 2C:39-5(d) unless the defendant arms himself spontaneously to repel an immediate threat. The judge provided a standard self-defense instruction for the unlawful purpose charge.
The learned Justices of New Jersey’s Supreme Court disagreed with the lower court’s handling of the case and reversed the lower court’s opinion.
The State asserts that answering an angry knock at the door with a weapon in hand constitutes possession “under circumstances not manifestly appropriate for such lawful uses as it may have.” That position is untenable. The right to possess a weapon in one’s own home for self-defense would be of little effect if one were required to keep the weapon out-of-hand, picking it up only “spontaneously.” Such a rule would negate the purpose of possessing a weapon for defense of the home. It would mean that an individual could lawfully answer the door with a loaded gun in a holster yet would be criminally liable if he held a cutting tool in hand. In short, Montalvo’s holding of the machete was a lawful use of that weapon under his version of events.
Individuals may possess in their homes objects that serve multiple lawful purposes, including the purpose of anticipatory self-defense. In this case, Montalvo possessed at home a machete he used in his roofing job. He was lawfully entitled to possess that machete as a weapon in his home as a means of defending himself and his family from attack as well. The right to possess that weapon, however, does not mean that it can be used without justification.
An individual who responds to the door of his home with a concealed weapon that threatens no one acts within the bounds of the law. He need give no justification for what he is lawfully allowed to do.
Note carefully — the Montalvo case was a rare instance of actual common sense prevailing in the New Jersey judicial system.
Keep in mind that this opinion was prior to NYSRPA v. Bruen. Given the orders, other constitutional challenges to Second Amendment limiting laws that may be forthcoming and – as there should – there may be mass deregulation of weapon possession laws.
What does Montalvo’s machete possession have to do with the teens being hacked at an intersection in Lakewood?
In Montalvo it was noted that, “the spontaneity requirement of Kelly, from which the trial court quoted in response to the jury’s question, is not applicable to possession of a legal weapon in the home for self-defense purposes.” The matter of self-defense outside the home is quashed by the opinion explaining, “We need only observe that the Second Amendment protects the right of individuals to possess weapons, including machetes, in the home for self-defense purposes.”
The New Jersey Justices affirmed Second Amendment rights in the home, even protecting the possession of a machete for self-defense, quoting Heller. But they fell short by not affirming the Second Amendment’s applicability outside the home, maintaining that possession of a machete “under circumstances not manifestly appropriate for such lawful uses” would be prohibited.
Strangely, the teens in question were afforded no protection at all under New Jersey law by the prohibition against their attackers carrying and using the machete against them. No law or court opinion stops criminals from illegally carrying weapons — blades or guns — if they choose to.
In the post-Bruen world, the citizens of New Jersey are now able to obtain permits to carry. With a preliminary injunction in place enjoining the state from enforcing its “carry-killer” Bruen response law, permit holders can protect themselves with a firearm in many instances. Those under 21…not so much. And those under 18 can’t even use pepper spray. Felons need not apply.
What about electronic weapons like stun guns? In 2017 through the Cheeseman case, prohibitions on the possession and use of stun guns or electric weapons were lifted. It’s worth mentioning that the state legislature in New Jersey is so arrogant and out of touch that they never bothered to remove the statute prohibiting them from the law.
Per NJ Rev Stat § 2C:39-3(h) “Any person who knowingly has in his possession any stun gun is guilty of a crime of the fourth degree.” The only way to know about the current legality of the possession and use of electric weapons is knowing the opinion of the court.
While things are improving in some regards, they’re also devolving a bit in progressive strongholds like New Jersey with their Bruen response laws. The matter of self-defense outside the home is something states like the Garden State are going to continue to have to come to terms with.
That includes those who are minors, felons, or those otherwise not eligible for firearm possession, chemical spray possession, electric weapon possession, etc. The teens in the story above, whatever they were up to – good or bad, right or wrong – were likely not legally allowed to be armed in order to defend themselves. And that’s not likely to change any time soon.
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