Can the ATF confiscate your weapons for a misdemeanor?

[silverbird]

I know someone who has been convicted of a non-violent misdemeanor. Supposedly the ATF contacted his pr obationofficer, and asked that he turn in his pistol (his PO told him this). Can they do this?

We reviewed the documents that you fill out when purchasing a handgun, and he does not voilate any of the stipulations that they specify in the questionaire. I would think that if the ATF thought he was in possession of a gun illegally, that they themselves would knock on his door, and not ask his PO to send him an email.

 

[Sniper X]

I would think that is false. It isn't legal unless there is something there we aren't hearing in the story like he is under indictment for a feloney or something like that. Lok at all the gang bangers in LA who have felonies and when the po po go to do a drug raid on their house they have guns and you never hear some ATF guy called their PO and said they need to tunr in their "gat" or their NINE, or their GAUGE...

 

[silverbird]

Looking over the ATF's website, it appears that I am right:

(B5) Are there certain persons who cannot legally receive or possess firearms and/or ammunition? [Back]


Yes, a person 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;

(4) Has been adjudicated as a mental defective or has been committed to a mental institution;

(5) Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa;

(6) Has been discharged from the Armed Forces under dishonorable conditions;

(7) Having been a citizen of the United States, has renounced his or her citizenship;

(8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or

(9) Has been convicted of a misdemeanor crime of domestic violence

(10) Cannot lawfully receive, possess, ship, or transport a firearm.

A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding 1 year cannot lawfully receive a firearm.

Such person may continue to lawfully possess firearms obtained prior to the indictment or information.

He doesn't violate any of those clauses.

 

[Cosmoline]

A NICS refusal and ATF pounding your door in are two very different things. NICS can and will deny purchase if it appears you might have been convicted of a mis. with over two years of *potential* time attached to it. Even if no time was served. Confusion over this is a frequent reason for improper denial, as what's punishable for three years in Texas may only get you a max. of six months in Idaho. NICS rarely takes the time to actually check and you won't get anyone to actually look until after the denail, when the FBI's people handle the appeal.

The issue of whether local or federal authorities are going to kick your door in is another matter entirely. If you're a felon in possession or violating a term of parole the authorities are far more likely to take an interest. Plus, local authorities vary widely in their responses. Chicago isn't the same as Montana.

 

[Sniper X]

OK, I re read your post...

I see now what you mean. I thought you were relaying a second hand story. Let ma ask this,

How well do you know thie freind and how much do you trust his story because this seems very fishy. It burdens on the first steps of outright government gun grabbing. If true, it menas there is something in law that allows either scare tactics and possible unlawful forfiture of a firearm, or may be even a scam on the POs part. Sounds very fishy to me and I know quite a bit about gun laws and have never heard of a scenario like this.

 

[cassandrasdaddy]

might help if you disclose what his crime was

got an active probation in md? hmmmm

 

[silverbird]

I know the guy very well, and I'd rather not disclose the details of the probation. Let's just say "Charges were filed".


He's not trying to purchase a new gun, just keep the one he has.

the ONLY thing that I can see that could bite him is that he is unsure of the wording in his plea agreement. It is unclear if it says that he is not allowed to possess a firearm........even if it does though, can they legally impose this on him for a misdemeanor?

 

[Outlaws]

Isn't parole for after you get out of prison? What kind of crime is a misdemeanor and still requires a prison sentence with a chance for parole, and why is that only a misdemeanor? I thought misdemeanor means minor offense and is generally a fine or a few days in the slammer. Prison is a whole seperate institution from the local lock up. Sorry for my ignorance but I managed to made it through HS without getting busted...how I don't know. Isn't parole something you can get after a few years of a sentence? Do they have parole hearings for people that are sentenced to 30-60 days? I just have never heard of someone who is on parole for a misdemeanor...a felony yes, but a misdemeanor no.

Did this guy violated his parole by committing a misdemeanor?

 

[Cosmoline]

Outlaws--most people think that, but it ain't nec. so. You have to be very careful. A misdemeanor can include everything from failing to keep sufficient insurance on a car to charges that can bring several years in jail. And felonies in one state can be classed as misdemeanors in another. There's no clear line between them, though in most cases a misdemeanor will have a maximum term in jail of less than one year.

Probation is what you get after a suspended sentence is handed down. Parole is what you're on when you're relased from prison early. Generally speaking, parole is considerably more serious and has more terms attached to it. You're typically supposed to be reporting to a parole officer and there are frequently limits on your movements. Probation for a misdemeanor might have some supervision terms where a third party keeps an eye on you, or it may have no terms at all. At a minimum it allows them to put you in jail faster if you continue to commit crimes while you're on it. It's often used as a way of straightening out drug users and people who haven't done anything sufficiently bad to justify time, but who are close to the line. If they re-offend during probation the slack gets yanked back in.

The bottom line is, be EXTREMELY careful before signing off on a deal to get rid of a traffic or similar apparently low-level misdemeanor. Make sure you're not signing away your RKBA. For example, if they want to hit you for reckless driving for blowing a red light, make sure you know for a fact what the maximum term for that crime is. It's worth the cost to get a lawyer, esp. since in most cases these are just efforts to squeeze more money out of you for the general fund.

 

[Outlaws]

Ya I changed my post a bit. I thought when he said PO he ment probation officer, then I saw that last post that said parole.

 

[silverbird]

That was my mistake...it is a probation officer. He is not out on parole, just on 1.5 years probation, which according to the ATF, is not grounds to confiscate his weapons.

 

[Bartholomew Roberts]

Did you check his crime against number one? Was it theoretically possible to receive a sentence greater than one year of imprisonment for the crime he was convicted of?

The 1.5 year probation might have confused the ATF into thinking that it was the same as 1.5 years of imprisonment.

 

[silverbird]

It was possible for him to receive jail time for more than one year for the CHARGES that were against him....he wasn't convicted of any of them though. He pled out after all of the more substantial charges were dropped (lack of evidence), and they offered the misdemeaner charge, because he didn't want to go to trial and put his life in the hands of 6 or 12 random jurors. BTW that's a choice is is really regretting now.

 

[deadin]

Check #9. There's a misdemeanor that can keep one from owning a firearm.

 

[Outlaws]

It was possible for him to receive jail time for more than one year for the CHARGES that were against him....he wasn't convicted of any of them though. He pled out after all of the more substantial charges were dropped (lack of evidence), and they offered the misdemeaner charge, because he didn't want to go to trial and put his life in the hands of 6 or 12 random jurors. BTW that's a choice is is really regretting now.

So to me that sounds like it was a felony charge but the DA decided to let him plead guilty because he would see it as only having a misdemeanor on his record and the DA could move on to the next guy. Without knowing details its hard to say if he is or isn't allowed to own firearms. Just tell your friend to be happy that the system likes to plea everything down because he dodged a bullet.

 

[silverbird]

Check #9. There's a misdemeanor that can keep one from owning a firearm

it was a non-violent charge. Certainly not domestic.

DA didn't move on because she was busy, she took a stab with the mistemeanor because she had nothing else. He bit, and she was happy to walk away with a plea (she had nothing else).

I printed out the laws according to the ATF, and told him to show it to his PO and ask her which one of these rules he broke. I will follow up with her answer, if she gives one.

 

[gezzer]

I'll bet it is not ATF more likley State law he is on PROBATION why should he have a gun untill his sentence is over. He sure can't have one in jail.

 

[Bigreno]

You are not going to get a solid answer without giving us the specifics of his charge.

The only thing that comes to mind from the sketchy information you provided would be a Family Voilence or similar charge. Since you said it was not a violet crime, I don't know what to tell you.

If it had been a similar charge, the judge may have issued a protective order which would prevent your friend from owning a firearm or ammunition for a set period of time ( generally the length of his probation ). This would not involve the ATF though. PO might just have told him that to see if he was still in possesstion of a firearm and thus in violation of his probation. Remember, there is no law that says a PO has to tell you the truth to get what he wants.

If you decide to disclose what the charge was, and preferably how he plead, you will get much more reliable answers to your question.

 

[57Coastie]

You might also compare the question asked with the precise wording of #1: "Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year."

While one cannot analyze this case without a lot more information, which you do not wish to disclose, another possibility comes up when we look at history.

Early on one could with some degree of assurance generally contrast a felony and a misdemeanor on the basis of the term of imprisonment tagged on to the offense. Nowadays in the 'States it is not uncommon to have serious misdemeanors subject to a sentence of imprisonment for more than one year. I.e., #1 does not speak in terms of a felony -- it speaks in terms of the term of imprisonment which may be adjudged - not was adjudged, but may be adjudged.

Today, in general, a felony is something the legislature calls a felony, and a misdemeanor is something the legislature calls a misdemeanor, and you cannot count on much more than that.

This, of course, means that the answer to the precise question asked is "Yes."

Jim

 

[Jeff White]

Are you sure it's not a stipulation of his probation that he not possess a weapon? I have never seen a probation order that didn't say that.

Probation officers sometimes don't care about such things or tell the probationer it's ok even if the order says it's not. I've run into that before here. Could be the PO just wants to make someone else look like the badguy while he/she enforces the order.

Jeff

 

[Powderman]

I know the guy very well, and I'd rather not disclose the details of the probation. Let's just say "Charges were filed".

Umm, not quite.

Reading the rest of the thread, it seems that he has probation as part of the stipulation on his sentence. If he has had probation imposed, he has been tried and convicted. If the term of the sentence is over one year and a day, more than likely it was a felony offense.

The way our law stands now, a convicted felon cannot own a firearm. And, for some offenses (which I believe fall under the "young and stupid" category) a felony conviction is a hard way to go, and IMHO is unfair. People can mature and wise up.

Unfortunately, it is the law of the land--as far as I know--and it seems that your friend might be out of luck.

 

[jeep-2]

They ca take your weapons even if they don't like the way your hair in parted.
I know there are laws saying who can own a gun and who can't, and so do they, but it means nothing if they want to screw you around, you are the one that has to hire an attorney to get your weapons back, they just made a mistake and they are sorry, but they did what they wanted to do, they thru their weight around and cost you money, plus they had a good laugh.

 

[silverbird]

Are you sure it's not a stipulation of his probation that he not possess a weapon? I have never seen a probation order that didn't say that.

No, I'm not sure. It is interesting to hear that in your experience, it is common to see that. I'm guessing that is the case here, but I wonder how much he would have had to fight to get that one clause removed.

Kinda sucks that a DA feels the need to put that stipulation in every plea agreement that you have seen. It seems like he/she is trying to remove guns from the maximum amount of people possible, regardless of the crime.

 

[Jeff White]

I think the probation orders are a boilerplate type deal, at least around here. The judge signs the order. I don't know how much, if any input the states attorney gets.

Here the judge signs the order admitting the person to probation and the judge has to change it.

I saw a guy I knew was on probation getting his shotgun out of his car after a hunting trip. I asked him if his probation order prohibited firearms. He said it did (like I said most of them do), but his probation officer said it was ok. I asked him to think about if a probation officer could override what the judge said. Tld him to think about it. If he had been checked by a Conservation Officer while out hunting and it had been discovered he was in violation of his probation, he could have been arrested. The states attorney could have then filed a petition to revoke his probation and I wonder if the probation officer who told him it was ok to hunt would have stood up for him in court?

Jeff

 

[Zundfolge]

Why is the ATF doing the confiscation here? Shouldn't it be the local police? Why is this under "Federal" jurisdiction?



Anyway, I'm not going to bore you guys with yet another mention of my sig. (oops ... oh well)