A felon's right to self defense

C

cold dead hands

Moderator
It is against the law to deny the right of owning a gun to anyone who has no criminal record or history of severe mental illness even if they live with someone who does.

So... There is a husband and wife. They are regular suburbanites like so many of us are. The wife has a felony for marijuana possesion that she picked as a young dumb kid. Those years are in the past and she is doing her best to be a good mother and wife in the present.

Her husband likes to hunt. Come deer season he left extremely early in the morning to drive into the hills to camp and hunt with some buddies. He kisses the wife and kids good bye and they go back to sleep while hubby is well on his way to his weekend retreat.

The wife is startled awake. There is someone in the house. She knows it isn't her husband because wouldn't have returned so soon and he made sure he had everything and checked twice.

Hubby has .357 magnum S&W he keeps in his bedside drawer for home defense. She gets it out and quietly goes to investigate just in case it might be her husband since it has only been about half an hour since he left. Maybe he did forget something.

It isn't hubby. It is obviously an intruder. She points the gun at the invader and says "Who the $%^& are you and what the $$%^ are you doing in my house?''

The intruder appears to be going for a weapon. She shoots. The shot is good. One hit and the intruder drops, soon to die from the wound.

She dials 911 and trys to keep her children away from the body as they were awakened by the gunshot.

They police arrive and EMS hauls of the body. It turns out the perp was going for a mouse gun in his pocket. In the midst of all this it is discovered that she has a felony from years ago...

Is she arrested for being a felon in posession of a firearm? Are the kids removed and put in custody of child services since daddy is not there and wont be back for two days and there is no way to contact him?

Is daddy arrested upon his return for arming a known felon? Is he arrested for not preventing a known felons access to firearms?

Is a mother's previous transgressions with the law going to ruin her life for good or will the law bend in the name of protecting the basic right to self defense?

My point you might as ask... everyone has a right to defend themselves. That means everyone from the crack dealer on the corner to the President.
Regardless of your criminal past you should still be able to maintain a firearm in your dwelling.

I say that if you get caught with it outside of your home (other than being able to prove you were going to or returning from a range) it is jail time. No questions asked, off to jail for a long while.

Anyway, I really want to know what the law would about the situation I described. What happens to the woman and her family after the shooting?
 
Playing along.....

I don't see any prosecutor moving forward with charges.

If one did, I really do not see a jury conviction.

Jury nullification is still alive and well, thank god!
 
This can get sticky.

In legal circles, there's a precedent called "constructive possession" that could open the husband up to criminal liability here.

Suppose your 22 y/o son, who has a teenage felony record (but has straightened out), babysits his younger sister while you go out for the evening. You've locked all the guns in your gunsafe. But there is a set of keys hanging on a hallway hook that includes a key to the safe.

"Constructive possession" would say that because the key is accessible, the ex-felon has access to the guns and thus has "control" of them. Because the homeowner left the key available, he in turn could be charged with 'providing' said guns to a felon.

It's something of a stretch, especially if the ex-felon was unaware of the keys or their uses, or unaware that there were guns in the house. But never assume that an anti-gun or up-for-reelection D.A. won't try to force the issue.

With a husband & wife, it can get even stickier. Presumably the wife has access to everything in the home, including a gun safe. When the husband leaves on his hunting trip (per the above), he's left a loaded, unsecured firearm available to a convicted felon. Bad Ju-ju. Even if he had left it in his office/study with the door locked, it's still a bad thing(tm).

With that said....
If a person with a felony record uses a borrowed or loaned firearm in the defense of others I don't have much problem with it. It will, of course, depend on the circumstances of individual cases. But it is my belief that the temporary possession in order to protect others is permissible as "doing the right thing".

Regardless of your criminal past you should still be able to maintain a firearm in your dwelling.
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I'll disagree here. There are a lot of people with felony records because they are/were unable to make good decisions and/or control their emotions. Others simply have substance abuse problems and no desire to stop. Allowing them to keep weapons is like leaving a grenade in your house without the pin, just a rubber band holding the spoon.
 
You posed quite a few questions, some pretty viable ones in my opinion. Not being a legal expert I'm not sure when or if a felon re-gains their constitutional rights (to vote, bear arms etc...).

My opinion is that once the individual has paid their debt to society, completed any parole or probation and counseling that individual should re-gain every right and privilege they had before. I would maybe draw the line at those who use firearms in the commission of their felony (talking about USING it, not just possessing).

The few who make it through all of those hurdles have rehabilitated themselves (it's the job of the individual, not the correctional facility IMO).
 
In the case cited, prosecutorial discression comes into play. If the case occurred in a Red state, there'd probably be no prosecution. If the case occurred in a Blue state, the poor housewife would probably be tried for murder.
 
Well, if the cops arrived at the scene and found the cheapest available lockbox on the husband's side of the bed, with the lock broken and a screwdriver or prybar laying beside it, he'd be pretty well covered, and the wife would likely be covered by that state's necessity or competing harms justification. (PC9.22 in TX)

Just make sure there's not any rust on the broken surfaces of the lock :)
 
First off, if this was a real scenario, and real people with proof of the positive changes in their lives, they can petition the governor in their state to have the felony "vacated" from her record. Long process, perhaps a few favors from important people in her community might be necessary.

During my unfortunate interface with the state penal system, I learned about special programs, and I took advntage of one of them. In Wisconsin, you can apply for The First Offender Program. (Okay, okay, stop the laughter, the word "first" is their tag line, not mine...)

If a more serious offense has been committed, you can still start the process which needs your governor.

In the case of a petty, juvenile drug bust, the process might be shorter than you think.
 
Just as a note, I would never count on, "no prosecutor would move forward with this." There's always going to be one who will, no matter how unfair we think the charges are.

Nor would I count on, "the jury will nullify." Some juries may, but others very much view it as out of their hands and take their obligation to uphold the law in every application seriously. Also, most courts won't let you say the word "nullification" or even describe it in a courtroom, so you may find yourself out of luck.

It's a difficult question, but the best way to handle it is within the legal system trying to get the conviction vacated for such purposes. It's not always cheap, but can be done.
 
Had it inot been for felon-in-possession-of-a-firearm charges, ATF would've been out of a job back during my time in LE. They tagged that onto every arrest they possibly could, and then tried to muscle their "charge" ahead of everything else.

I'm a strong believer in "if you've squared yourself away after getting in trouble, get it vacated/expunged/whatever." In other words, do what it takes to get your civil rights fully restored AND THEN DON'T SCREW UP AGAIN.

But I also happen to be a strong believer that we CREATE a worse breed of criminal by way of our so-called justice system. Too long to post here, but it's an opinion based upon more than ample experience when I was in LE.

Jeff
 
TexasSeaRay said:
we CREATE a worse breed of criminal
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I agree.

As personal friends and clients, I have many positive relationships with area law enforcement. In fact, I'm amazed at the wide latitude I'm given.

Having said that, I'm still angered by rousts, pot-bellied cracker sheriffs who think they own the county and 2/3's of my motorcycle. To those guys who think a badge is a magic wand, I make them jump all of the hoops for the correct and Constitutional implications of the law (I'm so glad I know the Writ of Mandamus). And as a retired biker, I have all the time in the world.

So, am I a worse breed of criminal? Of course I am.

The problem is the definition. You cannot use your rights effectively unless you know what they are--and insist upon them.
 
There is a misconeption that I see going around here, in that a felony conviction is a minor thing. A felony conviction usually carries a minumim term or at least two years (either incarcerated or Probation). To get a felony conviction is no simple thing, there has to be a total and blantant disregard of the law and societal norms.

There is a way to get rid of a felony conviction, that is a Pardon or in some states the appeal to the Judge who handed down the conviction for an expungement of the record. Both not easy, but then again it was a felony conviction.

As a member of the LEO I would not even think of bringing up the charges of a Felon in Possesion. Some DA would have to step up to the plate and swing at that ball, I would let the person walk.
 
I'm not saying that legitimate charges/convictions be ignored. My side of this argument is the validity of the charges at all.

In my little world, "I thought it was a cracked tail-light lens" can escalate into have a biker assume the position against a squad car.

I remind the kind officer about issues of 'fruit of the poison tree' and 'probable cause.' I also remind him about all of that paperwork that is about to fall on him like snowflakes. I also ask him if getting reamed out by supervisors is a good career track.

I then usually hand him the oil rag balled up in my pocket, a reminder of his attitude in thinking bikers are stupid and fair-game.
 
I don't believe that most cherry picked juries will have the courage to do the right thing in this scenario. The 2nd amendment was SUPPOSED to prevent this, and governor's/president's pardons were supposed to be used for injustices such as this (as opposed to pardoning criminal insiders like Libby). Judges are SUPPOSED to not even allow situations such as this to even go to trial, but since most judges are former paid government prosecutors, that doesn't happen.

In my opinion, she should make the gun, her, and the kids disappear. She should put the kids with a relative and put the gun in a deep lake and then just not TALK when the police find her. If she says ANYTHING she'll incriminate herself, so she should invoke the 5th and watch the cops get pissed at her. She shouldn't say anything. She shouldn't claim she wasn't in the house or anything. She shouldn't even say "I don't know" when they ask how the body got on the floor. Make THEM prove A. she was there, B. she used a gun. It's sad, but this is the only strategy that I believe could work to keep her out of prison. Juries and most of the public are just too big of cowards to stand up to these "judges" who seem to love to enforce government abuses.

The police will have an obvious home invader that's hopefully dead, and unless she opens her mouth and helps them, they won't have a reason or much of an ability to manufacture a reason to pursue things. These "felon in possession" charges are usually chicken ***t add ons where these super "manly" prosecutors pile charges on in order to make sure SOMETHING sticks. They know that juries are too cowardly to acquit people of a cold technicality such as "felon in possession." Juries will sometimes acquit people in a messy complex murder trial, but they'll ALWAYS convict when government says "Hollis violated the letter of this bad law." Cowardly juries always conclude "shucks, we know this is a good person who did nothing wrong, but the law is the law and we HAVE to throw them in the gulag because the judge SAYS we have to if they violated ANY technical part of the law."
 
To get a felony conviction is no simple thing, there has to be a total and blantant disregard of the law and societal norms.
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For violent people I will agree. For theft that is absolutely beyond petty I will agree. But there are many ''crimes'' that harm only the person charged with them and many of them are felonies when they should be misdemeanors at worst.

There is a misconeption that I see going around here, in that a felony conviction is a minor thing.
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I haven't encountered that yet as a whole. Lots of folks here also know that some things are felonies and they shouldn't be.

They know that juries are too cowardly to acquit people of a cold technicality such as "felon in possession''
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Most juries don't know they have right to ignore a bad law. The judge and prosecutor are not present for deliberations and know nothing of what was said. They cannot target the whole jury nor it's individual members for doing what juries are empowered to do. However, this doesn't stop them from trying to tell them that they had better not do it in a most threatening manner.

I know my rights as a juror and I am pretty sure this means that I will never sit on a jury. I will be dismissed by the prosecutor in minutes flat.
 
I have a simpleton view of this. If the guy is a threat to society, he should be locked up. If he is not a threat to society, he should be free to go, and be restored to his rights.

There are no aseriks (*) in the constitution. none. It is a document that says what it means to say. If you don't like it, change it (Art. 7 IIRC).
 
it depends on your state ... here is Texas

Sec. 46.04 Unlawful possession of firearm (Penal Code)

(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,
whicheve date is later; or,
(2) after the period described by subsection (1), at any location other than the premises at which the person lives.
 
cryption,
Interesting. It allows, under Texas law, an ex-felon to have a firearm if he waits five years after his release and then he can have it only in his home. But not at the range and he can't take it to a gunshop for repair or sale. Strange.

In a sense, this parallels some of my thinking, which I didn't elaborate on in an earlier post. After a first felony conviction there is an established time-period to meet before getting any rights back. Thus, if you aren't convicted of another felony within, say five years, you get your rights back. For career criminals, they lose out. Couple this with some form of a 3-strikes law and the most violent offenders are taken off the streets.

In the aforementioned case of the wife with a felony record defending herself and kids, a look at the whole picture would indicate she "did the right thing"(tm) and prosecution would not be in the interest of justice. But that's never stopped a DA from making a political example of people either.
 
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm...at any location other than the premises at which the person lives.
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I'm glad the Texans figured out that anyone has the right to be safe in their home regardless of having a felony.

This isn't about arming the felons and turning them loose on the streets. This is about your right to be secure in your home no matter who you are or what you've done.

Police don't like this arguement because they claim it puts them at risk when serving felony warrants. I say nab 'em on the street (and it gets done with great success) and if they won't come out when they need in the house for a premises search then cut off the water, gas, electric, phone, and wait them out. Starvation and thirst will drive them out. Its not likely the average household could hold out for more than three days, especially when you consider that the average felon is not prepared for a seige that will last over 24 hours and ones that have children they actually love are unlikely to fight for too long.

If a stand-off just won't do then use tear gas or something to knock them out if children aren't present.

I know this may sound a little over simplified, but I truly believe that everyone has the right to to the best tools for self defense. Like I said, anyone found outside of their home in posession of the gun goes straight to jail and then prision for ten years.

My Idea...

Trips to the range and back can be approved provided that a map of your direct route (any deviation is lock up time) and your ''felon I.D. #'' are in your posession and the police have been notified 72 hours in advance. You do not need permission to go to the range, you just have to notify any police agency you may come into contact with. Failure to do so means lock up time.

The phone call need not be answered by a human. Felons could use touchtone phones and provide their ''felon I.D. #'' and date they are going to the range (caught on any other date means straight to the lock up). If they were to be stopped, when their name was run it would show up as being an approved day for a range trip and they had better have that map to prove they are coming or going.

They are allowed three range trips per year and a total of 100 practice rounds per trip. The gun most be in a locked container in area not easily accessible by the felon. Same goes for the ammo in it's own container.

If non felons accompany the felon then their guns must be locked up and out of reach as well with the exception of a legal CCW. All non felons accompanying the felons are restricted to the felons direct route regardless of whose vehicle or who is driving. Multiple felons may not travel together in the same vehicle. They must meet up at the range as per the rules of travel.

One firearm per felon. If there is more than one felon in the house then there is only one weapon allowed. More than one weapon means all felons who live on the premises are to be locked up. There shall be no limit on the amount of ammo stored on the premises. There shall be no ammo that is not specific to the approved firearm or off to jail.

The gun that the felon is going to own must be registered so that police can determine that he is not in posession of more than one firearm. If pulled over police may inspect the weapon for matching serial # that must be on the ''felon I.D.''. If the weapon is not the registered one then off to prison.

No felon shall be able to legally buy a firearm privately or from an FFL (which requires must issue approval papers by law enforcement after the probationary period) for the period 2 years good behavior probation following their release from prison.

Felons who do not get prison time must still do 2 yrs. good behavior probation. Any felon caught with a firearm, in home or not, goes to prison, provided the firearm isn't legally owned by another person in the home. When the legal owner isn't home to control the firearm then it must be locked up during the probationary period of good behavior for the felon.

The felon shall not be restricted as to choice of arms, with the exclusion of rifles, or capacity except that no more than three magazines (totalling no more than 40 rounds including one in the chamber) may accompany a semi automatic. Lasers, lights and electronic sights are approved.

Should a felon need a new firearm, proof of sale of the old one to an FFL is required or it must be turned in to the police and they shall issue a reciept of proof they took the gun and issue a new approval form for legal purchase.

Any new weapon shall be checked for any links to a previous crime before approval including getting a fired case and bullet. All weapons must be approved or denied within 10 days. All registration #'s must be updated within 5 working days after the firearm is cleared.

This will be a federal law to guarantee to the civil rights of all people to be secure in their homes.

I think I have about covered it. If I missed anything let me know. It took me a long time to come up with this.

You say, ''cold dead hands, they are not to trusted with guns. They are felons with a history of (pick your crime du jour) and they have no buisness being armed and to let them actually practice. And this system of yours is going to cost tax dollars....''

I look at it like this. If I was a scumbag, I still would want to to be able to protect myself and family. It is my god given right even if I am as low as dirt.

If they cannot be trusted, why, oh why, are they not in a cage? Some go prison, do their time and fly right after that. They don't want to go back. You demand security in your home, why can't they. You demand to be able to practice with your weapon. They need practice to be able to shoot properly as well.

The ones that can't get a gun are likely to end up back in prison or dead before the two year probation is up anyway.

Everything cost tax dollars, but any felon who wishes to own a firearm legally shall help provide for the cost by paying a REASONABLE fee for their I.D., gun registration, gun purchase paperwork, and approval of their direct range route map. If they want a gun then they will have pay to offset the cost of the computer system and actual human administration.
 
I forgot some stuff about getting the gun and getting service for the gun.

Once an approved felon has found a gun he/she likes and has approval paperwork to purchase then the sale can go through. The sales reciept will be presented at a law enforcement agency where upon temporary travel approval pass is granted for 4 hours. This will allow the gun to be picked up and taken to the felons home along an approved route. This process may only be bypassed if a non felon agrees to transport the firearm to the home of the felon. The felon has 5 working days to register the weapon.

If a private sale is to made then approval forms must be presented to the seller who will sign and date the forms and turn them into police as proof of a legal sale to a felon. The seller must provide and keep a copy of the purchase reciept. All weapon background checks must first be satisfied before approval of the sale.

If the felon's firearm needs service he must get a 4 hour pass to transport the firearm to a gunsmith. This shall also require an approved route. When the firearm is ready for pick up a 4 hour pass shall be issued to allow the felon to follow the approved route and get his firearm home. The ''felon I.D.'' card with the gun serial# will insure that the can pick up the firearm. A non felon may not pick up the gun as the felon will be required to fill out the required paperwork to take posession (4473 form)

A felon may not take a firearm on loan from anyone while his weapon is being serviced.

If a felons firearm has needed service he is entitled to an extra range trip to insure work is satisfactory. Proof of service to a aw enforcement agency will result in a one day pass so as not to interfere with the electronic range log.
Standard firearm transportation rules remain the same.

If the weapon needs to returned to the gunsmith then the procedure starts all over again until the weapon is in proper working order.

All felons shall be restricted to sending weapons to the factory for repair except through a gunsmith.

No gunsmith may refuse to work on the gun because the owner is a felon. This is discrimination. If a gunsmith is not capable of making repairs, he must offer to send it to the factory or recommend a gunsmith who can make the repairs.

All passes shall cost a REASONABLE price.

Anything else I left out?

I do not envy honest lawmakers. It is hard to insure you have covered every detail. Leave one thing out and it could all fall apart.
 
Appellate criminal defense lawyer here. Getting back to your original question: if she were charged, trial counsel would try to float duress as a defense. Who knows whether the jury would buy it. There are other issues in your scenario, but I don't have the time or interest to go through them.

People should know that under the laws of some states, felons are no longer "felons in possession" if they possess a firearm after a certain period of time has passed since their punishment ends. However, federal law is clear that a felon may never again possess a firearm. That's "firearm" as defined under federal law - interesting loopholes may appear to those schooled in this law.

Ah, but such a person had better be right about his understanding of the law. Nowadays every copshop in the country is supposed to have an "Operation Exile" basket where reports from cases involving firearms are placed for review by an AUSA. Here in NM, we've had folks who were allowed under state law to possess guns again, but who unknowingly ran afoul of the federales. Ten years in the federal pinta is a long time for a stupid mistake.

As a pretty libertarian guy, I've got no problem with anybody being armed. :)
 
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