Felons and Other Prohibited Persons in Possession of Firearms
: 18 U.S.C. 922
Within certain limits, the Second Amendment right to keep and bear arms applies to everyone. However, Congress can place restrictions on who is allowed to possess firearms. Knowingly or willfully violating these restrictions can be a federal crime in addition to a state crime in many jurisdictions. This can apply in a wide variety of situations, ranging from when a person is using a firearm for home defense all the way up to committing other crimes with firearms.
Federal law permits aggressive Assistant United States Attorneys to charge persons with the crime of felon in possession of a firearm, even if it would ordinarily be prosecuted in state courts. The ability to charge defendants in federal court gives these cases far reaching implications; federal prosecutors have significantly higher budgets and resources than many state, county or local prosecutors.
If you have been charged with the offense of being a prohibited person in possession of a firearm, call The Law Office of Jeremy Gordon today. The attorneys at the Law Office of Jeremy Gordon have experience in cases involving felons and other prohibited persons in possession of firearms. With over 15 years of experience, our attorneys know the tactics and process practices used by overzealous prosecutors in order to bring forth these cases. Call the attorneys at The Law Office of Jeremy Gordon now in order to learn how to best fight your case.
Prohibited Persons in Possession of a Firearm: 18 U.S.C. 922(g)
Federal law can prohibit certain persons from possessing a firearm. The list is actually quite long and matters such as this are subject to the discretion of prosecutors. The most likely and common type of prohibited person in possession of a weapon is a felon.
Felons in Possession of a Weapon: 18 U.S.C 922(g)(1)
Federal law prohibits a person from carrying a firearm if they have been convicted in court of a “felony.” Here, “felony” means that the crime is punishable by a term of imprisonment of more than one year. This is different from other places in the law such as 21 U.S.C. § 851 enhancements, where a person must spend more than one calendar year in prison to be enhanced.
Other Prohibited Persons in Possession of a Weapon
Federal law also prohibits possession of a firearm by a number of other persons. Such includes:
- “Fugitives from Justice,” meaning anyone who has fled to avoid prosecution or being ordered to testify
- Those committed to mental institutions,
- Persons who are “illegal aliens” or admitted into the States under non-immigrant visas,
- Subject to certain domestic violence court orders,
- Convicted in misdemeanor courts of domestic violence.
- Persons under indictment for crimes that are subject to punishment for more than one year.
- The circumstances surrounding each of these types of cases are unique and dependent on the facts of the case. We advise you to seek the services of an attorney in determining whether the charges are legally sufficient in each case.
Possession, Shipping and Receiving Firearms and Ammunition in Interstate Commerce
Federal Law makes it a crime for felons or other prohibited persons to possess, ship or receive firearms or ammunition in interstate commerce. While prosecution is possible for each of these situations, the overwhelming majority of these cases stem from possession of firearms.
Actual and Constructive Possession of Firearms by Felons
Federal law provides for two types of possession: actual and constructive.
Actual Possession: A person has physical possession of an item; in this case a firearm. Ex: A person has a firearm in their pocket or tucked into their pants
Constructive Possession: Constructive Possession may exist when “a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015).
Other courts have determined that a person has constructive possession when they “ha[ve] both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.” United States v. Booker, 774 F.3d 928, 930 (8th Cir. 2014) (emphasis omitted). Here, law enforcement may use “affirmative links” to prove that the accused had dominion or control over the contraband at the time of the offense. “Affirmative links” may include documents, items or other things that tie a person to a place. Examples of “affirmative links” may include:
- Bills in the name of the accused person,
- Letters addressed to the accused person in the residence,
- Photos or photo albums,
- Lease or Appraisal district records tying a residence to a person.
Oftentimes, law enforcement uses a theory of constructive possession to implicate individuals when the firearm is present in the house but owned by someone else such as a family member or intimate partner. Ex: husband in house is convicted felon and is believed to engage in crime. Husband is believed to use firearm that belongs to wife. Agents search the house of the husband and wife and find the firearm along with bills and appraisal district records in husband’s name.
Range of Punishment
A person who is charged and found guilty of being a prohibited person in possession of a firearm can recieve a sentence of up to 10 years. See 18 USC 924(a)(2). Persons with multiple prior convictions can be subject to higher sentences under the Armed Career Criminal Act.
Defenses to Prohibited Person
in Possession of a Weapon Charges
There are a number of possible defenses, depending on the situation.
- You did not have actual or constructive possession of the firearm
- You did not know that the firearm was present
- You are not a prohibited person