Aitken became a cause célèbre among gun-rights activists in the United States in 2009, after he was convicted and sentenced to seven years in prison for possessing handguns legally purchased in Colorado and transported in New Jersey from one residence to another.
On March 30, 2012, two of the three convictions were overturned by the New Jersey Superior Court, Appellate Division and on April 4, 2012, the State of New Jersey dismissed the outstanding charge of illegal possession of firearms.
Aitken was born in Pennsylvania and moved to Colorado where he married a fellow New Jersey émigré and became a legal resident. After his divorce, he returned to New Jersey where he had attended college to be near his young son and other family members. During the course of his move back to New Jersey he made several trips by commercial airline to and from Colorado. Prior to the last trip he sought clearance from the United States Department of Homeland Security Transportation Security Administration to transport three handguns in his checked luggage. This clearance was granted.
On January 2, 2009 Aitken's mother dialed 911 while Aitken was packing his car to move to Hoboken. His mother hung-up the phone before the call was answered. The Mount Laurel Police Department responded to an abandoned 911 call to find that Aitken had said he "didn't see the point in being here if he couldn't see [his] son". This vague comment relayed to the police caused them to call Aitken on his cell phone to determine his 'state of mind'. Aitken told the officers he was not suicidal at which point Officer Michael Joy asked Aitken to return to Mount Laurel. Aitken asked if he was legally required to return to which Officer Joy responded that he did not have to return to Mount Laurel. Aitken thanked Officer Joy and stated that he would not be returning; however, minutes later Officer Joy made another call to Aitken notifying him that a 'General Alert' had been issued to New Jersey jurisdictions and that the Police would "pick him up" and "bring him back" if he did not return on his own. Officer Joy testified at trial that Aitken was "not free to leave until we're through with the matter" despite the fact that Aitken had not been charged with, or suspected of committing, a crime.[dead link]
Fearing a manhunt, Aitken returned to Mount Laurel and the responding officers searched Aitken's car and discovered three locked and unloaded handguns in the trunk. Aitken was subsequently arrested for possession of these weapons and was sentenced to seven years in prison by Judge James Morley. Judge Morley's decision not to provide information to the jury regarding exceptions to New Jersey's relatively strict firearm possession laws became a source of controversy. Gun laws in the United States vary widely by state and require expert knowledge to understand the differences.
During the jury instructions, Judge Morley did not charge the jury with the exemptions to the New Jersey law despite arguments by the defense that Aitken met one of the exemptions and was therefore innocent of the charges. The jury returned three times requesting to be made aware of the laws that provide exemptions for lawful possession; however, all three requests were denied by the judge. One of the jury requests read:
Why did you make us aware at the start of the trial that the law allows a person to carry a weapon if the person is moving or going to a shooting range, and during the trial both the defense and prosecution presented testimony as to whether or not the defendant was in the process of moving, and then in your charge for us to deliberate we are not permitted to take into consideration whether or not we believe the defendant was moving?
In an interview with ABC News, Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, stated
The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another.
Release and continued appeals
On December 20, 2010, after Aitken had spent four months in prison, New Jersey Governor Chris Christie commuted Aitken's sentence to time served, and Aitken was released from Mid-State Correctional Annex.
On March 30, 2012, the New Jersey Superior Court, Appellate Division issued a decision overturning Aitken's conviction for second-degree unlawful possession of a weapon and fourth-degree possession of a large-capacity ammunition magazine, but affirming his conviction for fourth-degree possession of prohibited ammunition (hollow point bullets). On the hollow point bullets charge, the court rejected Aitken's argument that the statute was unconstitutionally vague or that the "moving exemption" that applies to other gun laws (allowing owners to transport from one house to another while moving) should be read into the prohibited-ammunition statute, which does not contain such an exemption.
In 2014, Aitken crowdfunded over $40,000 via Indiegogo to publish a memoir, petition the Supreme Court of the United States, and attempt to gain custody of his son. After being released, Aitken announced plans to file a 42 U.S.C. § 1983 civil-rights lawsuit against the police officers, the prosecutor and the judge for their actions in the case and also to seek custody of his son.
- Gun laws in the United States (by state)
- Open carry
- Concealed carry in the United States
- National Rifle Association
- "Brian D. Aitken's website". Thinking Differently: Digital Media Strategy. Retrieved 29 July 2012.
- "VICE: My Life as a Convicted Felon". My Life as a Convicted Felon. Retrieved 18 April 2014.
- Chris Megerian, N.J. man goes from inmate to NRA celebrity as Gov. Christie commutes gun sentence, NJ.com (December 22, 2010).
- New Jersey Gov. Chris Christie Commutes Sentence of Man Sent to Jail for Owning Guns Legally, Fox News (December 21, 2010).
- Miller, Joshua Rhett (2 December 2010). "New Jersey Gun Case Exposes 'Patchwork' of State Laws, Experts Say". FOX News. New York: News Corporation. FOXNews.com. Archived from the original on 30 July 2012. Retrieved 29 July 2012.
- Brian D. Aitken: Digital Marketing Executive.
- Balko, Radley (15 November 2010). "Brian Aitken's Mistake". "Reason Online". Los Angeles: Reason Foundation. Reason.com: 1. Archived from the original on 30 July 2012. Retrieved 29 July 2012.
- New Jersey Superior Court, Appellate Division. "NJ Appellate Court Docket # a0467-10" (PDF). Judiciary.state.nj.us/opinions/. Trenton: State of New Jersey. Archived from the original (PDF) on April 13, 2012.
- "Family: New Jersey man serving 7 years for guns he owned legally". Philadelphia Daily News. November 30, 2010. Retrieved January 18, 2013.
- Chris Megerian, Gun owner Brian Aitken is released from prison after Gov. Christie commutes sentence, NJ.com (December 21, 2010).
- State v. Aitken, No. A-0467-10T4 (N.J. Super. Ct. App. Div Mar. 30, 2012) (per curiam).
- Tsvetelin M. Tsonevski, Brian Aitken on Fox News, Foundation for Economic Education (February 25, 2011).
- Freed gun owner Brian Aitken visits tea-party meeting, Philly.com (February 12, 2011).
- Brian Aitken @ the 2011 International SFL Conference Archived 2016-05-03 at the Wayback Machine, Students for Liberty (January 7, 2011).
- "Brian Aitken Crowdfunding Campaign Closes $40,000 Intends to Petition Supreme Court". Brian Aitken Crowdfunding Campaign Closes $40,000 Intends to Petition Supreme Court. Retrieved 18 April 2014.
- Pardoned Dad Fights for Custody of His Son, Fox News (March 14, 2011).