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Wednesday, June 14, 2017
Second Amendment right to meet people at the door with a machete by your side?
Yes, says the New Jersey (!) Supreme
Court in yesterday’s unanimous State
v. Montalvo opinion; here are the facts, from the court’s syllabus:
This appeal concerns whether an
individual may lawfully possess and hold a weapon for self-defense in his home
while answering the front door.
Defendant Crisoforo Montalvo and his
wife lived directly above Arturs Daleckis and his wife. On the night of March
24, 2012, Daleckis grew agitated by noise emanating from Montalvo’s unit; he
stood on his bed and knocked on the ceiling three or four times. Montalvo then
proceeded downstairs and knocked on Daleckis’s door. Montalvo picked up a small
table belonging to Daleckis and threw it off the front porch, breaking it.
The lady forgot her machete
After Montalvo returned to his unit,
Daleckis knocked on the door. Montalvo and his wife testified that they heard
knocking, kicking, and slamming on the door. Montalvo testified that he became
scared for himself, his wife, and their unborn child. As a precautionary
measure, Montalvo retrieved a machete from a closet as he moved to answer the
door. Daleckis testified that Montalvo pointed the machete at him. Montalvo
testified that he kept the machete in his hand, behind his leg, and below his
waist while speaking with Daleckis. Montalvo was acquitted of “possession
of a weapon for an unlawful purpose” (Count One, in the discussion below) but
convicted of “unlawful possession of a weapon” (Count Two). At trial, the judge
included a self-defense instruction as to the unlawful-purpose charge but
didn’t give it as to the unlawful-possession charge.
“During deliberations, the jury sent
the trial judge a note asking, ‘Second charge, unlawful possession of a weapon,
is self[-]defense considered a lawful use?.'” The judge responded thus:
I remind you that it is
necessary for the State to prove that it, meaning the object[,] was possessed
under such circumstances that a reasonable person would recognize that it was
likely to be used as a weapon. In other words, under circumstances where it
posed a likely threat of harm to others and/or a likely threat of damage to
property, you may consider factors such as the surrounding circumstances as
well as the size, shape, and condition of the object; the nature of its
concealment; the time, place and actions of the defendant; when it was found in
his possession to determine whether or not the object was manifestly
appropriate for its lawful uses.
This statute is
2C:39-5(d). Section 5(d) prohibits the possession of implements as weapons even
if possessed for precautionary purposes, except in situations of immediate and
involves a lawful use of a weapon, it does not justify the unlawful possession
of the weapon under Section 5(d) except when a person uses a weapon after
arming himself or herself spontaneously to repel an immediate danger.
Obviously, there may be
circumstances in which a weapon is seized in response to an immediate danger,
but ensuing circumstances render its use unnecessary. Under such conditions,
the individual may take immediate possession of the weapon out of necessity
rather than self[-]defense. However, it would appear that the availability of
necessity as a justification for the immediate possession of a weapon, as with
self[-]defense, is limited only to cases of spontaneous and compelling danger.
Please resume your deliberations.
But the New Jersey Supreme Court held
that the judge should have instructed the jury as to self-defense:
[The unlawful-possession statute]
prohibits the possession of any weapon, other than certain firearms, when an
actor “has not yet formed an intent to use [the] object as a weapon [but]
possesses it under circumstances in which it is likely to be so used.” … [This]
class of possessory weapons offenses is codified by N.J.S.A. 2C:39-5(d), which
states that “[a]ny 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.” The purpose of Section 5(d) is
to “protect citizens from the threat of harm while permitting the use of
objects such as knives in a manner consistent with a free and civilized society.”
The statute applies to circumstances resulting in a threat of harm to persons
A machete constitutes a “weapon”
within this statutory scheme. See N.J.S.A. 2C:39-1(r) (defining weapon as
“anything readily capable of lethal use or inflicting serious bodily injury”); State
v. Irizarry (N.J. App. Div. 1994) (observing N.J.S.A. 2C:39-5(d) concerns
weapons “such as knives and machetes that have both lawful and unlawful
uses”)….Self-defense is a potential defense to a possessory weapons offense….
The Second Amendment “guarantee[s] the individual right to possess and carry
weapons in case of confrontation,” D.C. v. Heller (2008) …. It extends
to “all instruments that constitute bearable arms.”
Self-Defense from Down Under
, the Supreme Court
recognized that “the inherent right of self-defense has been central to the
Second Amendment right.” New Jersey’s statutes protect the right of
self-defense. Generally, the use of force against another person “is
justifiable when the actor reasonably believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful
force by” another. The use of deadly force for
self-defense is justifiable only when the actor reasonably believes that such
force is necessary to protect himself against death or serious bodily injury,
unless the actor provoked the use of force or knows he can safely retreat.
Thus, the defensive conduct must be based on a reasonable belief of potential
harm, and the defensive force must be proportional to the offensive force….
Montalvo legally possessed a machete
in his home. It is of no matter whether his possession was for roofing or for
self-defense because either would qualify as a lawful purpose…. [T]he Second
Amendment protects the right of individuals to possess weapons, including
machetes, in the home for self-defense purposes. Thus, Montalvo had a
constitutional right to possess the machete in his home for his own defense and
that of his pregnant wife. Because the court’s instructions did not convey this
principle, the instructions were erroneous….
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….
The court sent the case back for a
possible retrial, so the jury could decide whether Montalvo indeed just used
the machete for defensive purposes. (The state argued, for instance, that he
also took it outside and chopped at the porch that he shared with Daleckis; if
those were the facts, the court said, that would be an unlawful purpose, but if
the facts were as Montalvo claimed they were, his conduct would be lawful
Finally, the court tried to avoid this
problem in the future, by directing its “Committee on Model Criminal Jury
Charges to review and revise” the model jury instruction for the unlawful
We suggest the following language for
the Committee’s consideration in refashioning the charge: Determining whether
the State has proven beyond a reasonable doubt that defendant possessed a weapon
in his home under circumstances not manifestly appropriate for a lawful use
requires special considerations. Persons may lawfully possess weapons in their
homes, even though possession of those same weapons may not be manifestly
appropriate outside the home. Using a twelve-inch steak knife in a kitchen to
prepare dinner is lawful and possessing it as means of defense in case of a
home invasion is lawful as well; carrying the same knife on the street on the
way to pick up groceries may not be manifestly appropriate.
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.
On the other hand, an individual may
not threaten another with a weapon, even within the confines of his home,
without lawful justification. Thus, Montalvo could not answer the door
threatening the use of a machete merely for the purpose of inciting fear in
another. He could threaten the use of the machete, however, if he had a sincere
or reasonable belief that the show of such force was necessary to protect
himself or his wife from an imminent attack.
The burden always remains on the State
to prove that defendant did not lawfully possess the weapon in his home or, if
the weapon was threatened against another, that possession of the weapon was
not manifestly appropriate for the purpose of self-defense.
Sounds right to me, at least as to
home possession. (What is the proper scope of the Second Amendment outside the
home is a hotly contested matter, on which courts have split, and which the
Supreme Court is currently being asked to consider, in the Peruta
About author Eugene Volokh:
Eugene Volokh teaches free
speech law, religious freedom law, church-state relations law, a First
Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he
has also often taught copyright law, criminal law, and a seminar on firearms
For those interested in
understanding something of the legal decisions being handed down in courts
across the nation--including, of course, by the Supreme Court--please make
yourself familiar with the work of Eugene Volokh. His articles are insightful,
truthful, easy for the legally uneducated to comprehend and always accurate.
Click on the link to the Volokh
Conspiracy, carried in the Washington Post. The reading will be WELL worth
your while. Ed.