Can a Greensboro Attorney Win My Possession of a Firearm by Felon Case?
If you or someone you know has been charged with possession of a firearm by a felon, our Greensboro criminal defense lawyers can definitely help you with your case. These cases are often far more complex than they initially appear and the stakes are high, so let’s go through some of the defenses to possession of a firearm by felon cases and then we’ll discuss how our criminal lawyers in Greensboro, NC can win your charge.
These defenses often include a lack of knowledge about the presence of the firearm. In some situations, multiple people have access to the firearm and it’s more of a constructive possession case. In some cases our lawyers have been able to argue that our client lacked the intent to control the disposition or use of the gun. There’s a whole lot that goes into possession of a firearm by felon cases, let’s go through the law and some of the defenses together.
Possession of a Firearm by Felon Law
In North Carolina, the law or statute that covers possession of a firearm by a felon is North Carolina General Statute 14-415.1 (a).
- It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer.
What makes someone a convicted felon for purposes of Possession of a Firearm by a Felon?
A convicted felon is someone that has previously been convicted of a felony. One of the issues our Greensboro criminal lawyers encounter, is an issue pertaining to out of state convictions. We often hear things such as I was convicted in North Carolina so I can still possess a gun in North Carolina. This just isn’t true, a felony conviction from any state counts as a felony conviction for purposes of possession of a firearm by felon. Any felony conviction creates a prohibition on the person from being able to purchase, own, possess or have in their custody a firearm.
It wasn’t my gun, they can’t charge me with possession of a firearm by felon can they?
Remember, it’s not ownership of a firearm by felon, it’s merely possession of a firearm by a felon. Possession is 9/10th’s of the law is an often saying in the court system. Now it is a violation of the statue for a convicted felon to own a firearm, but just as NCGS 14-415.1(a) states, they can’t possess or have in their custody. For instance, if you have someone else’s gun in your car, and there’s no one else in your car, that would give law enforcement the ability to charge you with possession of a firearm by a convicted felon. They would have probable cause to arrest you, that doesn’t mean they can prove their case beyond a reasonable doubt, but they’d still be able to charge you.
If someone says it’s their gun, will that get my Firearm by Felon Case dismissed?
Sadly, no. Our Greensboro criminal lawyers get affidavits in a lot of our firearm by felon cases, the district attorney will review the affidavit however, the facts of the case are vital to the situation. Let’s take the example above.
Person driving alone in a vehicle. Firearm is found on the passenger side of the car. The driver is a convicted felon and the only person in the car. Police search the vehicle for a valid reason, let’s just say there’s a blunt of marijuana in the ash tray and they find the weapon. That person is then arrested and charged with Possession of a Firearm by Felon.
This charge is valid. Even if the person says it’s not their gun, which it isn’t, and let’s just say it’s not their car either, law enforcement would still have probable cause to arrest the person for possession of a firearm by a felon. If the owner of the gun comes forth and says it’s their gun, and they left the gun in the car, it would help to create a defense to the case, however, the District Attorney would not dismiss it because of this affidavit. Remember, it’s not ownership of a firearm by felon, it’s merely possession. When they were stopped by the police, they were the only person in the car and deemed to be in possession of the contents of that vehicle.
Our criminal defense lawyers Greensboro, NC, believe this person would have a good defense at trial, however, an affidavit will not cause this case to be dismissed.
I told the police I knew the Gun was there, but it wasn’t my gun. Can this firearm by Felon Case be Beat?
Knowledge of the weapon and being the sole possessor is problematic. If you tell the police you knew the gun was there it further their case that at the time of the stop you were the sole possessor or you were in custody of the firearm. What you say during an encounter police can and will be used against you, so please be cautious. Law enforcement very well may have a weak case against you, but your statements may give them a great case. If you tell the police you knew the gun was there, this shows knowledge of the weapon and gives them a far stronger case than if you said nothing at all. When you’re stopped by the police, most of the time, you’re better off not saying anything so not to fall into a trap which can hinder your case later.
It was someone else’s gun, can I win my possession of a firearm by felon case?
Having a situation where more than one person has equal access to a weapon and it’s not on a person is typically a decent case to argue in front of a jury in Greensboro, NC. For instance, if a person who has been convicted of a felony is in a car and they’re a passenger in the car. Vehicle is stopped, firearm is found under the passenger seat. Person who is a convicted felon doesn’t say anything or tells the police they had no idea the gun was there.
This could be a good case to fight on the theory of constructive possession because the person had a lack of knowledge that the gun was there. The question the case asks, is what is a convicted felon supposed to do? Check every spot where a firearm could possibly be every time they enter a place. Facts that will be significant in a constructive possession case such as the one we created above.
- Did the driver take responsibility for the gun? Even if they did, the police may still charge the passenger. It’s important to note, that because the gun was under the seat and concealed, law enforcement may then charge the driver with misdemeanor carrying a concealed gun, because unless they’re a concealed handgun permit holder, they can’t have the weapon concealed.
- Were there fingerprints or DNA on the weapon? This often takes a while to come back so we have to be careful here. If you touched the gun as a convicted felon it could be problematic if the state or federal government runs tests. Fingerprints are often tough to get in a a case like this but DNA is still possible. there are arguments around this issue, but it’s important to keep this in mind.
- Did the person who is a felon tell the officers they knew about the gun? Knowledge is half the battle in a possession case. This is why you’re better off not saying anything. Acknowledging you knew about the presence of the gun gives the state of North Carolina one step closer to a conviction. If your answer isn’t I didn’t know the gun was there then it’s best just to remain quiet on this issue. Remember, they may charge you with possession of a firearm by felon, but that does not mean they can convict you. Don’t give them a good case. Sometimes law enforcement will tell you if you admit to it we’ll help you with bond. That may keep you out of the jail for the moment, but why give them a case that could land you in prison for years in order to avoid being confined for what could be a couple of hours to days? If you’re worried about firearm holds our lawyers in Greensboro NC cover these issues in depth.
Does a No-Contest Plea or PJC count as a Conviction for Possession of a Firearm by Felon?
Yes, both a no-contest plea and a PJC count as convictions for purposes of possession of a firearm by felon cases. In North Carolina, a conviction is also defined as a final judgment. A No-Contest plea would be a final judgment for this purpose as would a prayer for judgment continued or PJC.
Can I Possess Long Guns as a Convicted Felon?
Not anymore. There was a time in North Carolina where there were a number of exceptions to the rule of firearm possession by a convicted felon. Believe or not, there at one point was an exception for long guns, and even an exception that allowed a felon to possess a firearm in a workplace or at their home. There was also a statute that allowed a convicted felon to possess a firearm five years after the completion of their sentence. These laws were all removed and North Carolina shifted their laws to be closer to the permanent ban of felons being able to possess firearms which is very similar to what the federal government has enacted.
Defenses to Possession of a Firearm by Felon Cases
Can a Felon Use a Firearm in Self-Defense?
A common question our criminal defense lawyers in Greensboro, NC receive, is can a convicted felon use a firearm to protect themselves. In other words, can I use a gun if it’s necessary to protect myself or someone else? The courts are yet to rule on this issue, but the defenses are available and it would be up to a judge and jury to decide. Let’s go through them together.
These defenses are often referred to as justification defenses, meaning it was against the law, however, the facts and circumstances justified your actions. The four major defense in these areas are duress, coercion, necessity and self-defense.
The firearm statute in North Carolina, just as the firearm statute in Federal Court, does not provide for a justification defense specifically. However, it doesn’t preclude or prevent someone from bringing it forth as a defense to possession either.
In North Carolina, when seeking to use one of these justification defenses, the courts have looked to the test in U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000).
Please note that when bringing forth a justification defense, the burden is on you to show by preponderance of the evidence the following:
- he was under an unlawful and present, imminent, and impending threat of death or serious bodily injury
- he did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct
- he had no reasonable legal alternative to violating the law; an
- there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
There’s a lot of wiggle in the way a justification may be applied and also had the facts will be addressed by the court system. In US v. Mooney, the court held that for self-defense purposes the person charged with possession of a firearm by felon must show that they were under a present threat of death or serious bodily injury and the person charged must not have recklessly placed themselves in a situation where they were forced to engage in criminal conduct.
For instance, if a drug deal goes bad. A person who is a convicted felon, has a guy pull a gun on him and then he shoots and kills the person in self-defense. The issue here won’t be the fact that he was under a threat of serious bodily injury or death, when someone pulls a gun on you that’s a fact we can use toward self defense. The issue here is going to be that the state would argue that they recklessly placed themselves in a situation, a drug deal, that forced them to engage in criminal conduct. The courts have been fairly consistent in this area, and it’s vital that we’re careful in how we approach these situations because the application of a justification defense is strict.
What are Firearm by Felon cases that have used duress, coercion, necessity and self-defense?
Our Greensboro criminal lawyers have seen a number of firearm by felon cases through the years and the case law in this area is only increasing with every passing month. Here are some cases where a person charged with possession of a firearm by convicted felon have won on the basis of using a justification defense:
- US v. Ricks (2009) – A convicted felon’s partner had a gun and was acting erratically with the gun, and talking incoherently. The convicted felon knocked the gun away from his partner. He then removed the clip and threw pieces of the firearm in different directions. His partner ran off and then he put the clip and gun under clothes on top of a dresser in the bedroom that the two of them shared. The partner returned with the police about a half hour later. The convicted felon retrieved the gun when requested by the police several times. The courts found that the criminal lawyers for the convicted felon should have been able to bring forth justification as a defense to possession of a firearm by felon. He only possessed the gun for purposes of preventing death or seriously bodily harm and he didn’t recklessly put himself in a situation involving criminal conduct.
- US v. Mooney (2007) – Ex-wife put a gun to the head of a convicted felon. He took the gun away and called his boss saying he was taking the gun to the police. He then immediately went to his boss and left the gun. Courts found that justification could have been used as a defense in this possession of a firearm by felon case.
- US v. Gomez (1996) – The government disclosed that a convicted felon was an informant in a murder-for-hire case. The man then received repeated death threats and then he went on the run even at one point telling his parole agent that he was on illegal drugs so he could get locked back up for his own safety. The man when released had acquired a shotgun. Courts found that he should have been able to bring forth a justification defense as to why he possessed the weapon.
- US v Panter (1982) – a convicted felon was at a bar when he was stabbed by another person at the bar. He fell on the floor beneath the person who stabbed him. He reached found a weapon on the floor and shot the person who stabbed him. He then placed the firearm back on the bar. Courts found that he should have been able to bring forth a justification defense at his trial.