Is Justification or Self Defense a Defense for Possession of a Firearm by a Felon?
Possession of a firearm by a felon is a crime in which the defendant, a previously convicted felon, possess a working or non-working firearm.
The question arises, from time-to-time, whether self-defense, or justification, is a defense for the crime. This week’s N.C. Criminal Law Blog addresses the issue.
Although North Carolina courts have not recognized the defense, they have hinted at it, discussing other jurisdictions’ analysis of the defense but ultimately finding, in most cases, that the elements of the defense were not met. Additionally, most federal jurisdictions (including the 4th Circuit Court of Appeals – the circuit that includes North Carolina) recognize the defense.
The elements of the defense (it is the defendant’s burden to show the elements, and they must be shown by a preponderance of the evidence), though they vary from jurisdiction to jurisdiction, generally are:
- That the defendant was under an unlawful, imminent and impending threat of death or serious bodily injury; and
- That the defendant did not negligently or recklessly place himself in the situation of danger; and
- That he had no reasonable alternative; and
- That there was a direct causal relationship between the criminal action of possessing a firearm and the the avoidance of the threat or harm.
U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2002).
At this point, what the elements of the defense would be in North Carolina are unclear, as the courts have not yet specifically and officially adopted the defense.
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This article explains North Carolina law in general terms. It is not legal advice about your case, and laws, penalties and court procedures change. Contact an attorney about your specific situation.