The State of New Jersey is home to extremely strong gun laws carrying penalties that can include significant financial penalties and lengthy state prison sentences. In light of the state’s reputation for harsh treatment concerning gun crimes, many people want to know if they can face penalties for possession of certain weapons or certain acts committed with a gun. However, people often do not consider that penalties and defined crimes in the state are not only limited to actual guns, but also extend to any object that, given the circumstances, is perceived or mistaken as a firearm. 

If you have been charged with a crime due to the use, display, or carry of a fake or prop gun during a movie or film shoot, when entering a convenience store or other retail location, when driving around in a car, or in other circumstances the experienced Atlantic City criminal defense lawyers of the Law Offices of John J. Zarych may be able to fight for you. Our lawyers are experienced fighting gun and weapons charges for people in Atlantic and Cape May County.

It Is Illegal to Possess an Imitation Firearm for Unlawful Purposes

Many people may think that no harm can come from a fake gun, an imitation gun, or a highly detailed prop gun for plays, movies or films. Unfortunately, this assumption is not particularly well-founded. Some individuals may brandish a fake gun to intimidate another person while in public or perhaps to facilitate another crime. Even innocent use of an object of this type can have consequences. Teens driving through a neighborhood with a prop gun or a BB gun displayed may be noticed by law enforcement. The officer may mistake the fake gun for a real one and, often tragically, use force proportionate to the perceived threat.

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Thus, for these reasons and for others under N.J.S.A. 2C:39-4(e) it is a crime to possess an imitation firearm under circumstances where it appears to be for unlawful purposes. The relevant section of the statute states: Imitation firearms.

Any person who has in his possession an imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose is guilty of a crime of the fourth degree.

Let us explore the elements of the crime a person would have to satisfy before they could face a fourth-degree indictable offense under this statute.

What Is an Imitation Firearm in New Jersey? What Other Circumstances Must a Person Meet to be Charged with a Crime?

The elements in a jury charge for a person facing fourth-degree criminal charges under this statute are:

  1.  The object in question is an imitation firearm.
  2. The defendant was in possession of the fake or facsimile firearm.
  3. The circumstances under which the fake or prop gun was possessed would lead a reasonable observer to believe that it was possessed for unlawful purposes.
  4. The possessor of the fake gun knew that another would perceive the imitation firearm as being possessed for unlawful reasons.

As for the first element, nearly any object that can be mistaken for a firearm is included. That means that anything ranging from a prop gun taking the appearance of a handgun, machinegun, or any other gun would be included. Furthermore, BB guns, airsoft guns, spring guns, pellet guns and any other firearm-like weapon is covered by this first element.

Second, the gun must be in the possession of the charged individual.

The third element is an objective standard based on what an objective observer would find reasonable based on the circumstances present. Reasonable belief differs from actual knowledge, and thus, the victim need not actually believe that the gun was being used for unlawful purposes. For instance,  a reasonable observer would almost assuredly believe that an individual who walks into a bank with a fake gun with a note stating “Give me the money in your drawer” had an unlawful purpose. However, a reasonable observer may reach the opposite result if the fake gun fell out of their pocket while trying to make a deposit at their local bank.

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The fourth element has a mens rea requirement meaning that a particular state of mind is necessary. Here, the state of mind requirement is that the defendant “knew” the conduct would be perceived a certain way. When a person acts knowingly they are aware that their conduct is nearly certain to produce a certain result. When facing charges for a crime with a mental intent element, the state does not have to prove the state of mind by direct evidence, but can rather use the facts, circumstances, and other factors to show the state of mind.

Weapons Charges Defense Attorneys Fight for You in South Jersey

The firearm defense attorneys of the Law Firm of John J. Zarych can fight to protect your freedom if you are facing gun charges in New Jersey. We work to mitigate the charges you face and to prevent a criminal conviction and a criminal record. To schedule a free and confidential initial consultation, call (609) 616-4956 or contact us online.