Brian Aitken Loses His Son

October 23, 2013 by Robert Franklin, Esq.

Sue Aitken was concerned for her son Brian’s emotional well-being. The 27-year-old entrepreneur was distraught because his wife was denying him access to their son. Sue was trained to deal with people in Brian’s condition, and that training encouraged her to call the police. So she did. I’ll bet it’s the last time. Here’s Radley Balko’s excellent piece on the case (Reason, 11/15/10), and here’s an update (Daily Mail, 10/16/13).

Back in 2009, Aitken was divorced from his wife. She lived in New Jersey and he in Colorado. But she was interfering with his access to their little son, so, over the course of several trips between the two states, Aitken was moving back to New Jersey. He’d be closer to his son and better able to pursue his rights as a father. But he didn’t yet have a place to stay, so his mother Sue allowed him to stay at her place until he could find one of his own.

On his fourth and final trip from Colorado to New Jersey, Aitken had the last of his belongings in the trunk of his car and a friend, Michael Torries along for the ride to help with the driving. When the two showed up at Sue’s house, she became concerned about her son’s emotional state. He was clearly upset about his ex-wife’s refusal to let him see their son, so Sue called the police. She hung up before the call was completed, but they showed up at her place anyway. By then, Brian had left, but they called him and convinced him to return. When he did, they searched his car and in the trunk, found three handguns, none of them loaded and each locked.

Before he’d started for New Jersey, Brian had printed off the requirements for transporting firearms in the state and, just to be on the safe side, called New Jersey police who spelled out what he needed to do to move the weapons to his new home.

Despite his caution and obedience to police instructions, Brian was arrested and charged with illegal possession of firearms. He was tried, convicted and sentenced to seven years in prison. He served four months before Governor Chris Christie ordered him to be released and his sentence commuted. Aitken is still a felon, with a firearms conviction on his record.

The details of the trial are remarkable and well-described by Balko. The salient feature is that New Jersey law essentially presumes that anyone possessing a firearm in the state is guilty of a criminal offense. He or she must, in order to avoid prosecution, conviction and incarceration, prove their actions fall within one of the few exceptions to the law. One of those exceptions is that a person isn’t behaving culpably if his/her possession of the weapons occurs while transporting them between residences.

Now, most people would point out the obvious, i.e. that that’s exactly what Aitken was doing. He was transporting his pistols from his residence in Colorado to his new one in New Jersey. That’s what he told the police, Torries backed him up and so did Sue Aitken. Plus, essentially all of his belongings were already at Sue’s house and his car was packed with the rest. To the dispassionate eye, Brian Aitken had left his residence in Colorado and had arrived at his residence in New Jersey. Ergo, his conduct was exempt from culpability under New Jersey law, just like the police told him it was.

‘I did exactly what they told me to do,’ he said.

So how did he come to be charged, tried and convicted? Simple. The judge in the case, James Morley, refused to admit evidence that Aitken had complied with the exception to the law. The jury in the case wasn’t allowed to hear about it. Even so, jurors sent three separate messages to Judge Morley inquiring about the residence-to-residence exception, but Morley solved that little problem by refusing to answer them. Reluctantly, they were forced to convict him.

Fortunately, Gov. Christie saw the insanity of the conviction. He couldn’t issue Aitken a pardon, but he could commute his sentence and, to his everlasting credit, he did. That of course leaves Aitken with a second-degree felony on his record.

That was back in 2010. The latest is that a family court judge has decided that the felony conviction means that Aitken can’t see his son for four years. Never mind that all, even Judge Morley, concede that Aitken was behaving responsibly. Here’s a guy who researched the requirements of New Jersey law on transporting firearms, unloaded each gun, locked each gun and stored them in the trunk of his car. Then he called the New Jersey police to make sure what he intended to do was appropriate and, receiving an affirmative answer, drove to the Garden State.

He hurt no one. He attempted to hurt no one. He behaved as a responsible citizen and, as his utterly clean criminal record (prior to the firearm conviction) demonstrates, he always has.

But to the family court, all of his care, all of his caution, amount to nothing. Indeed, the facts of his case matter not a whit. The family court sees one thing – a firearms conviction – and that’s all it takes to remove a loving father from a little boy’s life.

A desperate father has been banned from seeing his young son for four years after he was found with an unloaded gun he legally owned in the back of his car among his possessions as he moved house…

‘After I was indicted of a victimless and violentless charge, with no prior criminal record, a family judge interpreted the charge to mean that I was a violent criminal with access to firearms and that fathers who own guns pose a threat to their children,’ he told Ammoland.


Although Governor Chris Christie commuted Aitken’s sentence after he had spent four months, and his 27th birthday, in prison, his saga continues.

He is still labeled a felon and therefore cannot own a gun, cannot vote, and cannot travel overseas because his passport was revoked

More importantly, he is still unable to see his son, who is now five years old, because he cannot meet the harsh restrictions the judge placed on him.

Aitken’s attorney described the case as a ‘perfect storm of injustice,’ to Crowdfund Insider

On his campaign page he writes: ‘Until my case is resolved I can’t vote or pass a background check. It’s next to impossible to get a credit card or even sign a lease for an apartment. I can’t leave the country and I can’t see my son. Clearing my name is the first step towards getting my life back… and I can’t do it without your help.’

The irony is lost on no one of course. The man who uprooted his life and moved half a continent away just so he could have a real relationship with his son, now has none. The mother who was obstructing his access to his child has been rewarded and the father who literally did nothing wrong has been kicked out of his son’s life until the boy is well along in years.

None of it had to happen, but all of it did. It did because neither the police, nor prosecutors nor Judge Morley nor the family court judge performed the simple act of seeing the case for what it is. Aitken should never have been arrested, much less prosecuted. And his son should never have been deprived of his loving father. But all that happened because no one looked at the case and said the obvious – “This man doesn’t need to go to jail.” “This man doesn’t need to lose his son.”

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