Felon in Possession of a Firearm

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Apr 11, 2012

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Felon in possession of a firearm charges require law enforcement to prove that a person is a felon and that he knowingly possessed a firearm. Much like proving someone possessed a controlled substance, the first step for a felon in possession of a firearm charge is to prove possession. The state and a jury can review all the factors to determine if there are enough links from the gun to the defendant. For example, if a gun is found in the trunk of a vehicle, then the state would need to prove that the defendant had knowledge of the gun in the trunk area.

Factors that support a knowing possession of the gun include: the car being registered to the defendant, the gun is found near personal items of the defendant, and any statements by the defendant indicating he had knowledge of the gun. Conversely, if a defendant can demonstrate that he was not the registered owner of the car and had only recently obtained control over the vehicle, then he could potentially defeat a felon in possession charge. Even though proof of possession is an issue that is often in question during felon in possession trials, there are other issues that may be important as well.

What is Defined as a Firearm?

The first issue is deciding whether the item possessed is a firearm. Where the offense is committed (not necessarily where the gun was acquired) will determine what a firearm is, as state and federal interpretations can vary. When most people hear of felon in possession of a firearm charges, they envision a defendant possessing a usable weapon like a handgun or a rifle, and many states follow this traditional application. However, some states have an even broader definition for firearms. Hawaii and the federal government, for example, will also charge a defendant for possessing ammunition.

Other states limit the definition of firearm, and exempt antique weapons. Federal statutes exclude antique firearms from their definition of firearm for the purposes of this charge. Some states follow the federal rules but are not required to exempt antique guns. Nevada, for example, includes antique weapons in their definition of firearm and will prosecute a defendant felon for gun possession charges despite the federal exemption. If a person convicted of a felony offense intends to possess any type of ammunition or firearm, he should be familiar with federal statutes and the state statutes of any states where he intends to carry the firearm.

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Who is Considered a Felon?

The term felon or convicted felon can also have different meanings. How the term is defined and applied will depend on the state in which the conviction arose or where the offense occurred. For example, in Oklahoma, a conviction is defined as a finding of guilt or a plea of guilty. The focus is not on the punishment, but rather the entry of the finding of guilt. A defendant on probation in Oklahoma would not be allowed to possess a firearm if there was a plea or finding of guilt on his last felony charge.

Conversely, if a defendant pled guilty in Texas, but was placed on deferred adjudication, then the deferred sentence would not be considered a final conviction for purposes of the felon in possession of a firearm statute. Texas tends to focus on the nature of the punishment, rather than the plea or finding of guilt. Before a defendant decides to possess a firearm, he should learn how the state defines convicted felon for purposes of the state’s felon in possession of a firearm statute. If a defendant was a first time offender or a significant period of time has lapsed since the date of his conviction, he may be able to get the right to possess a firearm restored through a pardon process in his state so that all of his civil rights, including the right to possess a firearm arm, are restored.

When Can a Convicted Felon Possess a Firearm?

Generally speaking, a convicted felon can never possess a firearm. Some states have time limits of when a convicted felon can possess a firearm. For example, in Texas, a defendant can possess a firearm in his home if more than five years have passed since he got off of parole. However, because federal statutes do not have this type of limitation for possessing a firearm in a home, a defendant could be charged federally, even if he could not be prosecuted at the state level for being a felon in possession of a firearm.

Consequences of a Felon in Possession of a Firearm Charge

At first glance, the punishment ranges for a felon in possession of a firearm tend to fall on the lower end of felonies. Punishment can range from two to ten years. However, because virtually every defendant charged with felon in possession has some type of criminal history, the resulting punishment can be heftier than other offenses of the same level. Some states will enhance a defendant’s punishment further with the final conviction. Others will not grant probation to a defendant convicted of possessing a firearm. For example, in the federal system, the beginning punishment range for a felon in possession of a firearm charge is five years. Other states have enhancement provisions (or upward departures) if a defendant not only possessed the gun, but used it in some potentially dangerous manner as well.

Felon in possession statutes were designed to keep guns out of the hands of potentially dangerous people. The nature of these charges tend to be somewhat extreme and unforgiving. A defendant with a conviction twenty years ago is still banned from possessing a firearm under many state and federal laws. To make the charge even more complicated, state and federal laws tend to overlap making the application even more confusing. A convicted felon charged with possession of a firearm should consult with a criminal attorney as soon as possible to discuss potential defenses and ways to mitigate any possible sentence.

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