Initially, Foster was charged with a felony offense, but this is a “wobbler” offense in California, which permits the prosecution to charge them as either a felony or misdemeanor crime.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.


San Francisco 49er Reuben Foster pled no contest to a misdemeanor gun charge in California following a preliminary hearing where the judge dismissed felony domestic violence charges against him.   If you would like to understand more about the type of pleas in criminal court, check out my previous blog on this topic.

California & New Jersey -  “May Issue” Gun and Firearm Jurisdictions

Initially Mr. Foster faced felony charges for the unlawful possession of a firearm, a fully loaded SIG SAUER machine gun found on the floor of his bathroom in his home. California, like New Jersey, is a “may issue” state, which doesn’t have reciprocity with any other jurisdictions. This is different from the Commonwealth of Pennsylvania which is a “shall issue” state. This means that a person who qualifies for a license to carry will receive the permit. In New Jersey and California, the state will likely not issue the permit to carry unless the individual can establish certain criteria which I have written about in previous articles.


It’s important to keep in mind that the firearm was found in Mr. Foster’s home and while, he was not accused of carrying it in a public place, he, nevertheless possessed an unregistered firearm within the state. California may not have permitted Mr. Foster to even purchase the firearm because he is an out of state resident (Alabama) with prior law enforcement contacts.


In California, like New Jersey, certain weapons, like Mr. Foster’s machine gun are prohibited unless a person maintains a dangerous weapons permit. Initially, Foster was charged with a felony offense, but this crime is known as a “wobbler” offense in California, which permits the prosecution to charge them as either a felony or misdemeanor crime.


The Purpose Of The No Contest Plea

Foster pled no contest to a misdemeanor charge as opposed to a felony. A no contest plea means that Foster never admitted guilt but simply allowed the court to make the determination based on stipulated evidence. In other words, Foster didn’t contest the charges but didn’t admit to them either. Foster more than likely entered the no contest plea to avoid, or at least provide some defense to a possible civil claims or possibly minimize the length of the likely NFL suspension. It is sometimes not advisable to plead no contest, especially during an open plea before a judge because the defense can’t argue that the individual has accepted responsibility. Here, however, Foster entered into a negotiated plea for probation and community service which the judge ultimately approved.


Preliminary Hearings & Gun Charges


It’s important to keep in mind that California, like Pennsylvania, maintains a preliminary hearing system and the felony domestic violence charge didn’t survive that hearing. When the case moved to the trial court level, the prosecution elected to offer Foster a misdemeanor charge because it more than likely couldn’t establish, beyond a reasonable doubt, the felony illegal possession of a firearm charge.  Learn more about preliminary hearing in Pennsylvania right now. 


New Jersey, unlike Pennsylvania, maintains mandatory minimum sentences for the unlawful possession of a firearm under 2C: 39-5. Unlike Pennsylvania, New Jersey and California make it unlawful for a person to possess an unregistered firearm even if it is in his home or place of business (See NJ -2C:58-3--Purchase of Firearms.) Check out my article on buying a gun or firearm in the Garden State.

Pennsylvania however, doesn’t make it a crime to simply possess a firearm in a home or place of business and doesn’t require a permit or a license to purchase one. The Commonwealth does prohibit certain individuals from even possessing a gun or firearm under Section 6105 and doesn’t permit individual’s to carry a firearm outside the home or place of business under Section 6106.


How is New Jersey Different From California?


In New Jersey, Foster not only would have faced the illegal possession charge but also the possession of a firearm for unlawful purposes under 2C: 39-4, given the domestic violence allegation. Unlike California, Foster would not have had a preliminary hearing in New Jersey but his case would have been presented for a grand jury.


How is Pennsylvania Like California – Misdemeanor Gun Offenses

Pennsylvania, like California, makes certain weapons offenses misdemeanors as opposed to felony charges. While New Jersey doesn’t maintain misdemeanor and felony classifications, it classifies all firearms offenses under the Graves Act as indictable crimes. In Pennsylvania, possession of a firearm in Philadelphia under Section 6108 is a misdemeanor but a felony under Section 6106. Further, under Section 6105 of Pennsylvania’s Uniform Firearms Act, a prohibited person commits a misdemeanor offense if they possess a firearm while the subject of an active protection from abuse order.


   For more information on gun crimes in Pennsylvania and New Jersey I encourage you to keep reading my blog and download a free copy of my book.

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