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Weapons Possession in the Home

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Jul 17, 2020 |


It has long been held that one’s home is given special treatment when it comes to self-defense. In State v. Montalvo, the New Jersey Supreme Court held that the defendant, Montalvo, had the right to possess a machete in his home to protect himself and his pregnant wife. After a confrontation with his neighbor, Montalvo feared retaliation and answered his front door with a machete in hand. Montalvo was charged with possessing a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, and unlawful possession of a weapon, N.J.S.A. 2C:39-5. Montalvo was acquitted of possession of a weapon for unlawful purposes, but convicted of unlawful possession of a weapon, after the trial judge declined to provide a self-defense charge in the jury instructions. Specifically, the trial judge used language from State v. Kelly to inform the jury that self-defense only justifies unlawful possession of a weapon when a person uses said weapon after arming himself or herself spontaneously to repel an immediate danger.

The Supreme Court reversed, finding that the jury instructions were erroneous. The court found that the correct inquiry is whether the circumstances surrounding the possession were manifestly appropriate for lawful use. The court distinguished this case from State v. Kelly and found that one cannot safely retreat from confrontation in one’s own home. The court reasoned that having the right to possess a weapon in one’s 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.” Ultimately, the court reversed, remanded and directed the Committee on Model Criminal Jury Charges to review and revise the charge for N.J.S.A. 2C:39-5(d) to clarify that possession of a lawful weapon in one’s home cannot form the basis of conviction under the statute.