ex convict inherit firearm.


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bkjeffrey
December 28, 2008, 12:31 AM
My buddy is an ex con from way back. He did some time in Oregon and paid his dues. He been clean and out of trouble for over 30 years now. Heres the deal. He recently was given a semi auto AK as a Xmas gift but hes worried about the legal issues (what the law would say about it) He now lives here in Mississippi.

Does anybody have any advice or info for him regarding his rights to the second ammendment.

Thanks in advance.

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coloradokevin
December 28, 2008, 12:37 AM
I'm not sure about ways that he can "restore" his 2nd ammendment rights, but I can say that the general rule is "Once a felon, always a felon" for the sake of POWPO (Possession of a Weapon by a Previous Offender) statutes.

I've seen arrests made against folks who have 20+ year old convictions in the past, though I honestly can't say how they turned out at trial. But, if he was a felon at one point, he is still a felon for the purpose of firearms ownership.

Again, maybe someone else can speak to ways that he can purge that conviction, but I can't be of any use to you on that level. I work in LE, and all I can speak to are the arrests that I've seen, and the opinions I've heard from our local ATF agents, etc.

For what it is worth to mention this, a specific incident that I'm thinking of involved a guy who had a 20+ year old conviction for robbery. He became involved in an altercation with a process server, and menaced this party with a weapon. We were called to the scene, and the suspect was taken into custody. The party volunteered to us that he had been previously convicted of a felony, and this fact was verified through our local contact at the ATF office (they seem to have the best LONG term records around here). The process server ultimately decided not to pursue charges because of his fear of retaliation, but I know an arrest was made in this case based on POWPO laws. I can't say if the DA ever filed charges or not, because it wasn't actually my case.

BHP FAN
December 28, 2008, 12:37 AM
Tell him to give it back.His mom / dad whomever gave it to him could get in real trouble for providing a felon with a firearm.Not the dead relative [obviously] but whichever living relative had it in their possesion could get in trouble.Tell him to give it back as graciously as possible.Maybe they could sell it and get him some stuff he can have.

jr45
December 28, 2008, 12:39 AM
If he is a convicted felon, he can not own or posess a firearm. He may want to contact the MS AG's office and petition to have his rights restored but that is not likely. When I lived in Pascagoula/Mobile area (for about 2 yrs) I had an in-law (convicted felon for fraud) that inherited a Marlin 30-30 and he could not take posession of it...he left it with his brother.

coloradokevin
December 28, 2008, 12:48 AM
One more thing! Here is the statute text concerning this law, at least in my state (Federal laws are applicable as well).

PLEASE NOTE: The section I highlighted in RED is an interesting exception to this law. I've actually lost a case at trial based on this exception. Simply put, we had a rock-solid case against a guy who really shouldn't have had a gun. We went to trial on it, and everything about our case was perfect. He got on the stand, said he had the weapon only for home defense, and was found not guilty! So, it makes this statute seem a bit weak to me!

"18-12-108. Possession of weapons by previous offenders.

(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.

(2) (a) Except as otherwise provided by paragraphs (b) and (c) of this subsection (2), a person commits a class 6 felony if the person violates subsection (1) of this section.

(b) A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (1) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102 (1).

(c) A person commits a class 5 felony if the person violates subsection (1) of this section and the person's previous conviction was for burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (1) of this section occurs as follows:

(I) From the date of conviction to ten years after the date of conviction, if the person was not incarcerated; or

(II) From the date of conviction to ten years after the date of release from confinement, if such person was incarcerated or, if subject to supervision imposed as a result of conviction, ten years after the date of release from supervision.

(d) Any sentence imposed pursuant to this subsection (2) shall run consecutively with any prior sentences being served by the offender.

(3) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person's adjudication for an act which, if committed by an adult, would constitute a felony, or subsequent to the person's adjudication for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.

(4) (a) Except as otherwise provided by paragraphs (b) and (c) of this subsection (4), a person commits a class 6 felony if the person violates subsection (3) of this section.

(b) A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (3) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102 (1).

(c) A person commits a class 5 felony if the person commits the conduct described in subsection (3) of this section and the person's previous adjudication was based on an act that, if committed by an adult, would constitute burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (3) of this section occurs as follows:

(I) From the date of adjudication to ten years after the date of adjudication, if the person was not committed to the department of institutions, or on or after July 1, 1994, to the department of human services; or

(II) From the date of adjudication to ten years after the date of release from commitment, if such person was committed to the department of institutions, or on or after July 1, 1994, to the department of human services or, if subject to supervision imposed as a result of an adjudication, ten years after the date of release from supervision.

(d) Any sentence imposed pursuant to this subsection (4) shall run consecutively with any prior sentences being served by the offender.

(5) A second or subsequent offense under paragraphs (b) and (c) of subsection (2) and paragraphs (b) and (c) of subsection (4) of this section is a class 4 felony.

(6) (a) Upon the discharge of any inmate from the custody of the department of corrections, the department shall provide a written advisement to such inmate of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in paragraph (c) of this subsection (6).

(b) Any written stipulation for deferred judgment and sentence entered into by a defendant pursuant to section 18-1.3-102 shall contain a written advisement of the prohibited acts and penalties specified in this section. The written advisement, at a minimum, shall include the written statement specified in paragraph (c) of this subsection (6).

(c) The written statement shall provide that:

(I) (A) A person commits the crime of possession of a weapon by a previous offender in violation of this section if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h), or any other weapon that is subject to the provisions of this title subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, or subsequent to the person's conviction for a misdemeanor crime of domestic violence as defined in 18 U.S.C. sec. 921 (a) (33) (A), or subsequent to the person's conviction for attempt or conspiracy to commit such misdemeanor crime of domestic violence; and

(B) For the purposes of this paragraph (c), "felony" means any felony under Colorado law, federal law, or the laws of any other state; and

(II) A violation of this section may result in a sentence of imprisonment or fine, or both.

(d) The act of providing the written advisement described in this subsection (6) or the failure to provide such advisement may not be used as a defense to any crime charged and may not provide any basis for collateral attack on, or for appellate relief concerning, any conviction.

Source: L. 71: R&RE, p. 483, 1. C.R.S. 1963: 40-12-108. L. 73: p. 542, 1. L. 75: Entire section amended, p. 621, 17, effective July 21. L. 93, 1st Ex. Sess.: Entire section added, p. 4, 3, effective September 13. L. 94: Entire section R&RE, p. 1464, 6, effective July 1. L. 2000: (2)(a) and (4)(a) amended and (2)(d), (4)(d), and (6) added, pp. 632, 633, 1, 2, 3, effective July 1. L. 2002: (6)(b) amended, p. 1517, 208, effective October 1. L. 2003: (4)(b) amended, p. 1432, 19, effective April 29.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (6)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

The purpose of this section is to limit the possession of firearms by those who, by their past conduct, have demonstrated an unfitness to be entrusted with such dangerous instrumentalities. People v. Gallegos, 193 Colo. 263, 563 P.2d 937 (1977); People v. Quintana, 707 P.2d 355 (Colo. 1985).

This section does not deny defendant equal protection, even though it may permit using a prior burglary conviction in another jurisdiction as the "previous offense" when the same conduct might not have resulted in a burglary conviction if committed in this state. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Constitutionality of section upheld. People v. Marques, 179 Colo. 86, 498 P.2d 929 (1972).

The classification which prohibits certain previous offenders from carrying a weapon is not unreasonable in its relationship to the evil sought to be cured. To limit the possession of firearms by those who by their past conduct have demonstrated an unfitness to be entrusted with such dangerous instrumentalities is clearly in the interest of the public health, safety, and welfare and within the scope of the general assembly's police power, and, accordingly, the statute in question is not subject to constitutional attack on an equal protection basis. People v. Trujillo, 178 Colo. 147, 497 P.2d 1 (1972).

The felon with a gun statute is not unconstitutional. People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975).

"Involving" not constitutionally imprecise. "Involving" is a common, readily understood word, and whatever imprecision its use may entail does not rise to the level of constitutional infirmity. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Nor is "use of force or violence" extremely vague, though this phrase is not specifically defined by the Colorado criminal code, there can be little doubt that most persons would readily comprehend its import. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The time computation provision of this section is not too vague. Notwithstanding the fact that the wording of the time provision of this section might require more than a quick glance for full comprehension, its meaning is plain. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

This section is not an attempt to subvert the intent of section 13 of art. II, Colo. Const. The statute simply limits the possession of guns and other weapons by persons who are likely to abuse such possession. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

This section is legitimate and constitutional means of accomplishing the general assembly's obvious purpose. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Limitations of section 13, art. II, Colo. Const., superimposed on section. In spite of the flat prohibition contained in this section, the specific limitations of section 13 of art. II, Colo. Const. must be superimposed on the section's otherwise valid language. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Because the right to bear arms is not absolute, nor is this section vague or overbroad. People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975).

The right to bear arms is not absolute as that right is limited to the defense of one's home, person, and property. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Affirmative defense under section 13, art. II, Colo. Const. A defendant charged under this section who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property as recognized by section 13 of art. II, Colo. Const., thereby raises an affirmative defense. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Purpose in keeping weapons is question of fact which must be submitted to jury. The question of the defendant's purpose in keeping the weapons in order to establish the affirmative defense based on his constitutional right to keep and bear arms under section 13 of art. II, Colo. Const. is one for the fact finder to determine at trial. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

But burden of proof is still on prosecution. After the defendant by competent evidence has raised the affirmative defense under section 13 of art. II, Colo. Const., the prosecution will still have the overall burden of proving its case. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).

Trial court properly excluded affirmative defense based on section 13 of article II, Colo. Const., and a proposed jury instruction where the defendant's offer of proof was insufficient to support the proposed affirmative defense. People v. Barger, 732 P.2d 1225 (Colo. App. 1986).

Trial court's instruction to jury that second-degree assault involved force or violence as a matter of law was proper for conviction under this statute notwithstanding fact that second degree assault could involve injury to another resulting from the administration of drug or other substance. People v. Allaire, 843 P.2d 38 (Colo. App. 1992).

Jury must find "knowing" possession to convict. To convict a previous offender of possessing a weapon, the jury must find, not mere possession, but that the defendant "knowingly" possessed the weapon and that he understood that the object possessed was a weapon. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

To convict under this section, the prosecution must prove that one of the defendant's intended uses for the instrument was as a weapon. As so construed, the section is not overbroad. People v. Gross, 830 P.2d 933 (Colo. 1992).

This section is not void for vagueness in regard to the definitions of weapon cited therein. "Weapon" has a commonly understood meaning and the definition of "knife" cited in this section is sufficiently specific to give fair warning of the proscribed conduct. People v. Gross, 830 P.2d 933 (Colo. 1992).

Broad definition of "knife", incorporated into this section by reference to 18-12-101, is constitutional. Where defendant possessed a screwdriver with specific intent to use it as a weapon, elements of crime were present. But this section does not prohibit possession of such an instrument for an innocent purpose, so prohibition is neither unconstitutionally vague nor overbroad. People v. Gross, 830 P.2d 933 (Colo. 1992).

"Possession" means actual or physical control over a firearm and is a question of fact for the jury. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

"Previously convicted" element satisfied by proof of a guilty plea and deferred judgment; judgment of conviction and sentencing are not required. People v. Allaire, 843 P.2d 38 (Colo. App. 1992).

The term "possession" in this section is a common term which is to be given its generally accepted meaning. Where court imposed the requirement of exclusive control, the generally accepted meaning was altered, making it both unduly restrictive and a potential source of confusion for jurors. People v. Martinez, 780 P.2d 560 (Colo. 1989).

"Involve" has been defined as "to have within or as part of itself: contain, include"; "to require as a necessary accompaniment". People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The word "force" in this section includes more than actual, applied physical force. People v. Gallegos, 193 Colo. 108, 563 P.2d 937 (1977).

Valid exercise of police power. The use, concealment, or possession of weapons specified in this section by a felon who has previously been convicted of one of the crimes itemized in this section may be validly prohibited under the police power. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Balancing of rights. The conflicting rights of the individual's right to bear arms and the state's right, indeed its duty under its inherent police power, to make reasonable regulations for the purpose of protecting the health, safety, and welfare of the people prohibits granting an absolute right to bear arms under all situations. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

The felon with a gun statute, this section, must be read in pari materia with section 18-1-702. People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975).

Statute may be violated by either concealing or using any of the specified weapons. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Prior conviction element of offense. Under this section, the prior conviction does not go merely to the punishment to be imposed, but rather is an element of the substantive offense charged and this distinction is critical. People v. Fullerton, 186 Colo. 97, 525 P.2d 1166 (1974); People v. Quintana, 707 P.2d 355 (Colo. 1985).

Defendant in a possession of weapon by prior offender trial may request limiting instruction or stipulate to the fact of conviction of another offense rather than requiring prosecution to agree to waive a trial by jury. People v. District Court, 953 P.2d 184 (Colo. 1998).

A prior conviction obtained in violation of a defendant's constitutional rights cannot be used as the underlying conviction in a prosecution under this section. People v. Quintana, 707 P.2d 355 (Colo. 1985).

Reference by name or description to crimes committed in other jurisdictions is a proper means for the general assembly to define which prior crimes satisfy the "previous offender" element of this statute and such references to crimes committed elsewhere do not constitute delegation of this state's legislative power. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

Conviction being challenged on appeal may be used as a predicate offense under statute prohibiting possession of firearms by previous offenders since a conviction becomes final and is valid for purposes of appeal when sentencing occurs. People v. Tramaglino, 791 P.2d 1171 (Colo. App. 1989).

Showing necessary for conviction under conspiracy provision. A conviction under the conspiracy provision of this section does not require a showing that the overt act of the conspiracy was an act of force or violence, but rather that, the crime which is the object of the conspiracy was one of force or violence. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

Where one is charged under this section with possession of a weapon, having previously been convicted of conspiracy to commit the crime of robbery, it is unnecessary to prove that the underlying robbery which was the object of the conspiracy did in fact involve the use of force or violence. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

Defendant to invoke procedural safeguards where substantive offense also charged. While procedural safeguards such as separate trials or a bifurcated procedure should be available to ensure a fair trial for a defendant charged with a substantive offense and with violation of this section, it is the defendant who must make a tactical decision whether to invoke such procedures, and the defendant must exercise the right to these procedures by means of a timely, pretrial motion. People v. Peterson, 656 P.2d 1301 (Colo. 1983).

Prior Colorado conviction not predicate felony for purposes of federal prohibition of possession of firearm by felon. Defendant was wrongly charged for possession of gun by felon, because at the time of his arrest he was once again entitled to possess a gun. Under this statute defendant's civil rights had been restored ten years after he served time on his prior conviction, such rights encompassing his ability to possess a firearm. U.S. v. Hall, 20 F.3d 1066 (10th Cir. 1994).

The fact that defendant assisted in purchase of firearm and was within "arm's reach" of firearm at time of arrest constituted prima facie evidence of illegal possession of a firearm, which precluded defendant from judgment of acquittal. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

Evidence sufficient in prosecution for possession of weapon. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979).

An attempted robbery by threat is a felony involving the use of force under this section. People v. Gallegos, 193 Colo. 108, 563 P.2d 937 (1977).

Robbery is crime involving use of "force or violence". The offense of robbery, whether committed by actual force or by constructive force, i.e., threats or intimidation, is a crime involving the use of "force or violence" for the purposes of this section. People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979)."

beatcop
December 28, 2008, 12:55 AM
It looks like you're going to have a late Christmas gift from your buddy soon.

This guy knows if he's a felon or not...offense punishable by more than a year in jail?

withdrawn34
December 28, 2008, 01:01 AM
If he can't pass a NICS check at a legit gun store, then I'm afraid he'll have to give it back or give it away to someone who is not prohibited, as soon as possible.

I understand that there are some people who can change their ways, but in many ways the dues for such a crime go beyond prison.

shotgunjoel
December 28, 2008, 01:16 AM
He could get a pardon, there was a guy from Mahomet Illinois that just got a pardon from W because he wanted to own a gun again. This was a long and hard process and would be a lot harder with Obama going in. It's still an option if he really wants to be able to own a gun.

2RCO
December 28, 2008, 01:18 AM
Unless your buddy wants to end up back in custody he better relieve himself of said firearm.

Albatross
December 28, 2008, 01:25 AM
I've been told that not all felons are forbidden to own firearms.

A family lawyer once mentioned to me at a party that it is the nature of the transgression which forbids the ownership of weapons. Not all felonies are created equal or some such.

He gave an example of a dude convicted of some white collar felony (tax evasion or something) as someone who could still own firearms.

Grassman
December 28, 2008, 01:44 AM
Does anyone know about Texas law on this subject? I have a good friend that is an avid duck hunter, his passion really. The problem is that he also had a little drinking problem, that resulted in several DWI's, that after a certain number become felony. He has never been in trouble with the law otherwise, and is a non violent offense. He was convicted and received 10 years probation. He has since cleaned his life up, has not had a drink in 8 years, he still has 2 years left on his probation. My question is will he ever be able to possess a shotgun for duck hunting again? Can he petition the state? Any thoughts?

Travis Bickle
December 28, 2008, 03:17 AM
Does anybody have any advice or info for him regarding his rights to the second ammendment.

He is definitely prohibited by federal law. However, look at Mississippi state prohibited possessor laws. If he's not prohibited by state law, it's highly unlikely he'll have any trouble, as the federal prohibited possessor laws are almost never invoked unless someone commits a violent crime or violates a state law, in which case they're used as add-on charges.

How do I know this, you ask? I happen to have a friend who is prohibited by federal law, but not our state law. He has had his name run two times by the local cops while in possession of a gun, and was not arrested.

In gun-friendly states like Mississippi and Arizona (where I live), the authorities simply do not give a **** about the Federal gun laws.

DMF
December 28, 2008, 04:31 AM
The advice given above is flat out wrong. While he may have a friend that got lucky twice, and got away with it, felons found in possession of a firearm and/or ammunition are often prosecuted in federal court, without there being any other crimes discovered/charged.

For reference the federal statute is 18USC922(g)(1).

For more information I suggest reading the ATF website FAQs regarding this topic:
http://www.atf.gov/firearms/faq/faq2.htm#b5

http://www.atf.gov/firearms/faq/faq2.htm#a7

http://www.atf.gov/firearms/faq/faq2.htm#a8

Also, as I've often advised before, if this is not a hypothetical I suggest you seek the advice of a competent attorney who has training/experience in the relevant federal/state/local laws.

It is unwise act on advice obtained on any internet forum when it comes to legal issues.

DMF
December 28, 2008, 04:43 AM
In gun-friendly states like Mississippi and Arizona (where I live), the authorities simply do not give a **** about the Federal gun laws.Well there is ample evidence to prove you wrong on that assertion. Here is an example out of "gun-friendly" AZ:

http://www.atf.gov/press/2007press/field/081707pho_convictedfelon-sentenced.pdf - AZ man who was not committing any other felonies and the case was referred to ATF by the local PD.

BHP FAN
December 28, 2008, 04:54 AM
I,personally feel that you've either paid for your crime,or you haven't,and a person's rights should be fully restored [voting,guns,etc.] upon release,but the law is the law.

Travis Bickle
December 28, 2008, 05:12 AM
http://www.atf.gov/press/2007press/f...-sentenced.pdf - AZ man who was not committing any other felonies and the case was referred to ATF by the local PD.

Actually, he was committing another felony. If he was a felon in possession of a firearm, then he was also in violation of the Arizona prohibited possessor law, which is a felony. That's what he was probably initially arrested and booked for. As usual, the federal PP charge was just icing on the cake.

DMF
December 28, 2008, 05:28 AM
You claimed that that unless there was some violation other than the possession of the firearm that the case wouldn't go federal and it would only be prosecuted as an "add on" charge. This was not an "add on" charge or "icing on the cake", because under the Petite policy, USDOJ will generally not allow someone to be tried for the same crime in federal court as state court. (NOTE: the doctrine of separate sovereigns does allow for prosecution of the same crime in both state and fed court, DOJ policy generally prevents dual prosecution). This person was prosecuted in fed court, not state court for the ONLY crime he was committing, which was the illegal possession of the firearm.

Backpedal all you want, but your advice was HORRIBLE.

Again, I don't expect anyone to take my word for it. As I said, if this is not a hypothetical I suggest you seek the advice of a competent attorney who has training/experience in the relevant federal/state/local laws.

Travis Bickle
December 28, 2008, 05:37 AM
You claimed that that unless there was some violation other than the possession of the firearm that the case wouldn't go federal

That's not what I claimed at all. I claimed that (quoting verbatim) "the federal prohibited possessor laws are almost never invoked unless someone commits a violent crime or violates a state law." Possession of a firearm by a felon violates Arizona state law, and is a state felony offense. Therefore it is not surprising that the case went federal.

Backpedal all you want

I am not backpedaling at all, you are putting words in my mouth.

Art Eatman
December 28, 2008, 02:11 PM
BATFE regs are stickied at the top of the Legal Forum main page.

Frank Ettin
December 28, 2008, 04:17 PM
...If he's not prohibited by state law, it's highly unlikely he'll have any trouble, as the federal prohibited possessor laws are almost never invoked...
...I am not backpedaling...
Dreadful and grossly irresponsible advice in any case -- suggesting that someone simply violate federal law.

But as to the OP's buddy's problem, he shouldn't be asking the question here. This is a real life and serious legal problem. The place he needs to go for advice is a local, licensed attorney who knows something about the subject. If the OP's buddy does the wrong thing, he's going to be in a world of trouble.

The Internet is a lousy place to go for legal advice concerning a real life, serious legal matter. You'll only get a bunch of speculation from a lot of folks who are not professionally qualified to give advice on the matter, who are anonymous and who won't be around to help set things right if their advice proves wrong.

This fellow needs qualified legal counsel.

Chukpike
December 28, 2008, 04:37 PM
Would suggest he visit the Oregon and Mississippi Attorney Generals web sites and determine if he wants to try and get his felony cleared. He could also find out if his felony conviction keeps him from owning a firearm. Not all felonies do. He may very well want to clear up his record for other reasons. Once he determines what he wants to do he should then seek an attorney if he wishes to pursue it.

reddheadnla1974
December 28, 2008, 04:47 PM
I am not sure about Mississippi law but most states a felon may only own a Black powder gun or a reproduction of a gun before 1898. Even modern inlines with a 209 primer are not legal in alot of states. I have done alot of research on the subject and very strongly advice that he consult a lawer the he can trust about the subject. That way there is no question about it. Not being sure can ruin someones life real quick.

azhunter122
December 28, 2008, 05:00 PM
That gun is illegal and he will be arrested if law enforcement finds out, however he can petition for his rights and after his rights are restored he can possess the gun according to my dad (20 year law enforcement officer, now retired).

alsaqr
December 28, 2008, 06:08 PM
am not sure about Mississippi law but most states a felon may only own a Black powder gun or a reproduction of a gun before 1898.


Possession of an explosive by a felon is a federal felony. Blackpowder is a Class 1 Division 1 explosive.

alsaqr
December 28, 2008, 06:29 PM
BATFE regs are stickied at the top of the Legal Forum main page.


Hey folks, Art Eatman shot you a clue to read the ATF Regs at the top of the Legal Forum:


Sec. 478.32 Prohibited shipment, transportation, possession, or receipt of

firearms and ammunition by certain persons.

(a) No person may ship or transport any firearm or ammunition in
interstate or foreign commerce, or receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce,
or possess any firearm or ammunition in or affecting commerce, who:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding 1 year,
(2) Is a fugitive from justice,
(3) Is an unlawful user of or addicted to any controlled substance
(as defined in section 102 of the Controlled Substances Act, 21 U.S.C.
802),
(4) Has been adjudicated as a mental defective or has been committed
to a mental institution,

.......................

Cyborg
December 28, 2008, 08:09 PM
Does anyone know about Texas law on this subject?
With the caviat that I am not an attorney and am not giving any advice but merely answering Grassman's question, here is what I can find in the Texas Penal code:TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 46. WEAPONS
Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.


Again, this is only - I say again ONLY - what I could find in the Texas Penal Code regarding convicted felons possessing firearms. I don't know about BATF (them boys scare the wee outta me) or anything else. Grassman's question was about Texas law.

Me, I have never been arrested much less charged or convicted of anything worse than a traffic offense. I have only had 5 tickets in my life and the last was in '87 so I should be OK.

Cyborg
Land o' the free an home of the brave. What a concept.

mljdeckard
December 28, 2008, 08:29 PM
He's going to have to go through expungement, probably through the court where the conviction was recorded.

SHvar
December 29, 2008, 01:16 AM
I seem to remember that after a period of 10 years following all sentences, probations, parole, etc. A former felon may file with the courts to request having their 2nd ammendment rights reinstated. This involves a panel of judges including if at all possible the sentencing judge, it most probably will be turned down even at any attempt, Ive never met anyone who has had the right returned after a felony conviction.
All felonies are felonies, there is no exemption for those convicted of any felony.
His best bet is to have the AK removed as of yesterday, and yes a common charge and conviction among former felons is "possession of a firearm by an individual not permitted" , this usually results in a sentence of anywhere from 5-15 years in state prison.

mljdeckard
December 29, 2008, 04:37 PM
My brother-in-law had a felony expunged, It was in a county court, and it was more than ten years after the fact. It was also non-violent, burglary. He made it sound like it was a given it would be expunged, it was just a lot of paperwork and hassle. His confusion came when trying to figure out if it was 'gone gone' from the entire nationwide system. (Just because you get the court to expunge it doesn't mean it automatically disappears from all records in every system.) He wanted me to help him get a gun, I told him if it was expunged, he shouldn't need my help. I told him to go to the DOJ website and look himself up. He never mentioned it again, I don't think it was all that important to him.

bkjeffrey
December 30, 2008, 02:00 AM
His was a violent crime i guess. He got pulled over for DUI and beat up a couple cops. I let him read these posts, and pretty much decided that its not worth the hassle of dealing with. The best part of it all is he is going to give me the firearm!!!!!!!

Yea for me!

Thanks for all the input guys.

Duke of Doubt
December 30, 2008, 02:14 AM
Around here, felons may not possess even blackpowder arms. They become archers, and tell all who will listen that they hunt with bows by choice, as it's more sporting, takes more strength, more skill, etc.

It's a crock, though they are seldom called on it. I mean, would YOU like to tick off a convicted felon, domestic assaulter, or someone on bail/ probation/parole?

Still, we have a lot of local bowhunters.

RoostRider
December 30, 2008, 03:19 AM
I see you got your answers... the best of which seem to contain some form of "tell him to consult a trusted, knowledgeable attorney about these things"...

My smart alack response would have been to ask him how much it bothered him to be in prison the first time, and go by that...

Not to be Johnny-bad-news here.... but aren't there possibly some legal repercussions to receiving a firearm from a known prevented felon?

Hate to say it, but I might "consult a trusted, knowledgeable attorney about these things" before I received that from him... It might be as simple as having him return it to who gave it to him and having them give it to you.... vs.... say.... 15 years in prison or something crazy like that...

bkjeffrey
December 30, 2008, 04:05 AM
I mean, would YOU like to tick off a convicted felon

The term "convicted felon" could be considered a stereotype in the manner you use it.

Yes hes a convicted felon. Would I like to tick off a convicted felon? Does it matter ? How many people get upset about something and do things most people wouldn't like? Hes convicted alright, and you cant piss him off. He will just call you an idiot and walk away.

Me on the other hand, I'm not a convicted felon, and I hope someone doesn't piss me off......

Convicted or not....doesn't matter, unconviceted people do things that most convicted people wont..........

if any of this makes any sense.......................

And yes, here in MS I can find a gun on the street and call it mine with no repercussions.

RoostRider
December 31, 2008, 03:43 PM
And yes, here in MS I can find a gun on the street and call it mine with no repercussions.

Really? Not trying to start anything here, but that seems odd. Most places have rules about "finders keepers" with regards to others property.

Also, does anyone know the answer to whether you can receive a firearm from a known convicted felon? How about receiving firearms from someone with a Protection Order against them?

I ask this now because I honestly want to know (I think you're doing the right thing about all this... not trying to start anything).... should I just start a new thread about this... or is this still on track?

Duke of Doubt
December 31, 2008, 04:02 PM
You certainly can receive a firearm from a known convicted felon -- by prying it out of his cold, dead hands after he breaks into your den. Teach him to count as empty a darkened home with no car in the drive.

Deltaboy
December 31, 2008, 07:01 PM
Contact a lawyer and give the gun to a friend to hold till you get answer!

RoostRider
December 31, 2008, 07:06 PM
Duke- Good point... lol.... but I was referring to the legalities of receiving such things legally and willingly (on all parts)

I know that a friend of mine once asked if I could hold his firearms until a P.O. against him expired (the P.O. said he couldn't have possession of firearms until expired)... being that it was already enacted when he was notified (standard procedure), he was immediately in violation and wanted to remedy that.... but I would have had to receive them...

He found someone else being that I wasn't around to help him at the time.... but I still wonder how that would all work....

kurtmax
December 31, 2008, 07:10 PM
It would have been fine. Even if the law doesn't explicitly state that you have X amount of time to get rid of the firearms, normally you have to:

1. Be aware that you have a RO/PO against you
2. Have a reasonable amount of time to remove the firearms.

It's not like they serve you the PO and then immediately arrest you for possession of firearms...

taprackbang
December 31, 2008, 07:29 PM
and the opinions I've heard from our local ATF agents, etc... (No offense to you Kevin)

Great! Just what we need.. Opinions from another gov't agency run amuck..
What we need is common sense..

GRIZ22
December 31, 2008, 07:40 PM
A family lawyer once mentioned to me at a party that it is the nature of the transgression which forbids the ownership of weapons. Not all felonies are created equal or some such.

He gave an example of a dude convicted of some white collar felony (tax evasion or something) as someone who could still own firearms.


Your family lawyer may be referring to a state law. Federal law defines a felony as any crime you can get sent to prison for more than one year. Federal law makes no distinction as to what the crime actually was just that a felony is a felony.

The person in question has to get rid of the gun and needs to see about pardons, expungement, etc if he wants firearms rights restored.

He needs to get rid of the gun and get a lawyer if he's wants to be able to have a gun.

Cuzzin
December 31, 2008, 08:39 PM
It has been stated here in this thread - some States do have language that allows 'as a defense' the possession of a firearm - especially in self-defense situations. However, the Federal view is that any felon in possession will be prosecuted, and, I believe this 1997 decision (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ms&vol=1999/97-ca-01497-sct&invol=1) by the Mississippi Supreme Court makes it simply illegal for a felon to have a firearm.

Frank Ettin
December 31, 2008, 10:36 PM
...What we need is common sense..
I'm afraid that common sense is inadequate when you're talking about the possibility of getting charged with a felony. What's needed is the advice of qualified, competent legal counsel who will be available to stand behind his advice if necessary.

bkjeffrey
January 1, 2009, 01:21 AM
Thank you for all of the info you gentlemen have posted. I believe I have received all of the answers I seeked, and I will withdraw my self from this discussion from here on out.

I will be interested to see where this conversation goes, but as I said, I have gotten the info I needed. The subject at hand has relinquished custody of said firearm back to original owner. Basically, thanks but no thanks.

Thank you again for you insight, happy new year every one, and welcome to the United States of America!

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