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Old November 30, 2018, 04:15 PM   #1
Roamin_Wade
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Felon this, felon that...

If a person has firearms and then commits a felony, once they are found guilty, does the court order police to go check their abode's and confiscate any and all firearms? I realize they will go to prison first but upon release will the courts order a search for the home that they will be living in? How does it work?
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Old November 30, 2018, 05:20 PM   #2
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As long as you're on parole after getting out of prison they have the right to walk in to your house and look for any violations until your parole ends. That's the conditions of parole. They find a gun, drugs, associated felons and you might just end up finishing your sentence back in prison.
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Old November 30, 2018, 08:28 PM   #3
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I find it interesting that once the sentence is served, felons can vote again in most states ..... the only civil right that is lost forever (unless one gets a pardon or gets the conviction expunged ) is the right to possess firearms.
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Old November 30, 2018, 11:39 PM   #4
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Quote:
Originally Posted by jimbob86
I find it interesting that once the sentence is served, felons can vote again in most states ..... the only civil right that is lost forever (unless one gets a pardon or gets the conviction expunged ) is the right to possess firearms.
And that's fairly recent. It wasn't always that way.
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Old December 1, 2018, 12:13 AM   #5
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I heard they could own guns but cant physically possess them. Correct me if I'm wrong.
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Old December 1, 2018, 04:34 AM   #6
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A person convicted of a felony is, per federal law (and most state laws), a "prohibited person" and
and therefore legally banned from buying, owning, or being in posession of a firearm. While the spouse or family of a prohibited person may have a firearm in the same home, it is supposed to be secured in such a manner that the prohibited person does not have access to it (i.e. locked in a safe that the prohibited person doesn't have the key or combination to).

That being said, enforcement of the law is inconsistent at best. In most cases I'm aware of, upon becoming a prohibited person, most people who wish to remain in compliance with the law will give, sell, or otherwise transfer their firearms to a non-prohibited person (often a friend or family member). I would expect that whether or not the police would come to sieze a prohibited person's guns would probably depend a lot on the jurisdiction.
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Old December 1, 2018, 06:59 AM   #7
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Quote:
Originally Posted by Roamin_Wade View Post
If a person has firearms and then commits a felony, once they are found guilty, does the court order police to go check their abode's and confiscate any and all firearms? I realize they will go to prison first but upon release will the courts order a search for the home that they will be living in? How does it work?
It depends in part on how the offender is released. Most will be released to some kind of probation or parole, and one of the conditions of release will be a search waiver. In that case, the probation or parole officer may show up at any time and search.

If, however, the defendant served his entire sentence as "flat time," then there won't be a search waiver on file, and the police would have to develop probable cause and go get a warrant to search the house.
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Old December 1, 2018, 07:07 AM   #8
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Originally Posted by Webleymkv View Post
A person convicted of a felony is, per federal law (and most state laws), a "prohibited person" and
and therefore legally banned from buying, owning, or being in posession of a firearm. While the spouse or family of a prohibited person may have a firearm in the same home, it is supposed to be secured in such a manner that the prohibited person does not have access to it (i.e. locked in a safe that the prohibited person doesn't have the key or combination to). . . .
With the very small exception of "owning," correct.
Quote:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

18 U.S.C.A. § 922 (West)
So no selling guns to felons . . . .

Quote:
(g) It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C.A. § 922 (West)
And no shipping, possessing or receiving of firearms by felons. . . .

But ownership and possession should not be confused. At least in theory, a convicted felon could own firearms, so long as he does not possess them.
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Old December 1, 2018, 01:49 PM   #9
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I suppose its probably just never been challenged in any court case, and Im just an "armchair quarterback lawyer"... so again correct me if Im wrong. But as "ownership" is not the same legal definition as "possession".....

So a prohibited person can possibly come into ownership of a gun (e.g.: an inheritance), or already owned a gun before their conviction... could have the gun stored and cared for by someone else as long as the prohibited person does not have possession or access to the guns and his ownership is not otherwise prohibited as an additional term of his conviction or parole.
would that be correct?
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Old December 1, 2018, 06:04 PM   #10
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My understand (and I'm not a lawyer) is that a felon can legally "own" firearms, (not physically possess) long enough to legally sell them or bequeath them through a lawful third party.

Grandpa wills Jimmy his shotgun, remembering only when he took Jimmy hunting as a boy, and passes, but Jimmy is now a 23yr old convicted felon. Jimmy now owns the gun, but cannot possess it, it is held in trust by grandpa's estate, until Jimmy agree to sell it to a legal buyer or gives it to a legal recipient.

I think this is how it is supposed to work, but contact a real lawyer for the actual process.
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Old December 1, 2018, 06:46 PM   #11
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So ... a convicted felon can't own stock in a company that manufactures firearms?
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Old December 1, 2018, 11:53 PM   #12
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So ... a convicted felon can't own stock in a company that manufactures firearms?
Why not? a stock is not legally a firearm.
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Old December 2, 2018, 01:05 PM   #13
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  1. There is some federal authority to suggest that a prohibited person may lawfully have legal title to guns he can't physically possess.

    1. In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):
      Quote:
      ...The felon-in-possession statute is prophylactic, intended "to keep guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.' " Scarborough v. United States, 431 U.S. 563, 572, 97 S.Ct. 1963 1968, 52 L.Ed.2d 582 (1977). Ownership without physical access to, or dominion and control over, the firearm does not constitute possession. If the felon owns a firearm, but does not actually possess or have dominion and control over it, then he does not possess the firearm for purposes of 18 U.S.C. § 922(g). ....
    2. There is also some federal authority to suggest that upon becoming a prohibited person one's rights to control disposition of the firearms he must dispose of might be subject to some constraints. See Henderson v. United States (Supreme Court, No. 13–1487, 2015) in which Henderson became a prohibited person and sought to direct the transfer of his guns. In finding in favor of Henderson, the Court said (Henderson, slip op at 7 -- 8, emphasis added):
      Quote:
      ...a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. See, e.g., United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon’s motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under §922(g). A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request….

  2. On the other hand, "possession" is very broad:

    1. U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):
      Quote:
      ...The law recognizes two kinds of possession, actual possession and constructive possession.... Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...
    2. See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

      The court of appeal noted, at 551:
      Quote:
      ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....
      In affirming the conviction, the court of appeal found, at 551 -- 552:
      Quote:
      ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...
    3. See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
      Quote:
      ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

      Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
      So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.
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Old December 2, 2018, 01:38 PM   #14
Aguila Blanca
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Originally Posted by 44_AMP
Quote:
So ... a convicted felon can't own stock in a company that manufactures firearms?
Why not? a stock is not legally a firearm.
I was being facetious. I didn't write "a stock," I wrote "stock" -- as in shares of common stock, which makes each stockholder an "owner" of the company. It shows how absurd some things can be if taken to their ultimate logical conclusion.

However, as Frank's post spells out, there is a distinction between ownership and possession.
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Old December 2, 2018, 09:43 PM   #15
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I knew that, AB, and the paper stock certificate isn't a firearm, either.

backatcha!
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Old December 3, 2018, 12:12 AM   #16
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Funny, I encountered this a couple years ago. Someone I charged with a felony was convicted (his guns were confiscated by the ensuing search warrant that lead to his charges). He hired an attorney and came to the PD with his aunt (who was all of 80 years old) and an order signed by a judge stating that his firearms would be released to her. We told her that we would be happy to get them out of the evidence room, but we warned her that if we ever found any of those firearms in his possession that she would be in danger of being charged with a felony for transferring possession to him. It was confusing for her because the order acknowledged that he owned the firearms. I had to read the portion to her that stated she would be required to maintain possession, as it was written in legalize, and upon hearing she could be charged if the guns wound up back at his house she decided she didn't want to go through with it.

He finally did have a friend who agreed to take the guns. I have no clue if said friend did it right. If another crime ever comes up for which a search warrant is issued for defendant's residence, I guess we will find out.

And again, as I've said before, I don't agree with the automatic prohibition on possession of firearms by ANY felon. Many petty crimes have been elevated to the level of felony these days. If it isn't violent, or it isn't a pre-planned complex criminal conspiracy to defraud the masses, it really shouldn't be a felony IMO.

EDIT: And then there are those who waited 30 minutes to obtain help for someone who tries to commit suicide by overdose at their residence, attempts to take said victim to the hospital but can't load them in the vehicle, attempts to destroy the suicide note and the remnants of the drugs taken to cause said suicidal overdose, and only when a neighbor sees 2 men attempting to load a limp body into a vehicle and calls 911 does the victim get some help. All because there were some drugs in the house and the idiot didn't want to get in trouble if the police came. Those guys, yeah they pretty much deserve what they get.
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Old December 4, 2018, 10:10 AM   #17
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Interesting, 5Whiskey. Thanks for that input. Working at a Gun store like I do, in Texas, I see a BUNCH oh under 25 yr olds that have permanent residence now because of obama. I don’t think they should be able to buy guns at all. They are all interested in 1911 38 Super pistols. The kind that are popular in Mexico and are known down there as “38 Supers” where we in America say “1911’s”. The more shine, (bling) the more they like them.

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