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Who Is Prohibited From Possessing A Firearm Under Federal Law?

by | Aug 16, 2021 | Federal Crimes, Firearm Offenses |

 

Michigan law prohibits the following classes of people from possessing firearms within its borders:

  • A person subject to a personal protection order under MCL 600.2950 and MCL 600.2950a is prohibited from “purchasing or possessing a firearm” under penalty of contempt of court.
  • A person under 18 years old cannot possess a firearm in public UNLESS supervised by an adult, possessing a firearm with a valid hunting license, or going to or from a target range or skeet shooting ground with the firearm secured in a case or locked in the trunk of a motor vehicle.  MCL 750.234f.
  • A person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years (or 5 years for certain specified felonies) after ALL of the following circumstances exist (MCL 750.224f):
    • The person has paid all fines imposed for the violation.
    • The person has served all terms of imprisonment imposed for the violation.
    • The person has successfully completed all conditions of probation or parole imposed for the violation.
    • For a specified felony, the person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored by the circuit court.

However, federal law prohibits even more classes of people from using or possessing firearms anywhere in the United States.  It is unlawful for ANY of the following persons “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”:

  • CONVICTED FELONS: “Any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 26 U.S.C. 922(g)(1).  In addition, “[i]t shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  26 U.S.C. §922(n).
  • FUGITIVES: “Any person who is a fugitive from justice.” 26 U.S.C. §922(g)(1).  The term “fugitive from justice” means any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.  18 U.S.C. 921(a)(15).
  • DRUG USERS OR ADDICTS: “Any person who is an unlawful user of or addicted to any controlled substance…” 26 U.S.C. §922(g)(3).  There must be some kind of temporal nexus between the defendant’s drug use and the possession of the firearm to sustain a conviction.
  • INVOLUNTARY COMMITTED TO MENTAL INSTITUTION: “Any person who has been adjudicated as a mental defective or who has been committed to a mental institution.” 26 U.S.C. §922(g)(4).
  • ILLEGAL AND NON-IMMIGRANT ALIENS: “Any person who, being an alien” –
    • “Is illegally or unlawfully in the United States; or” (26 U.S.C. §922(g)(5)(A)).
    • “Has been admitted to the United States under a nonimmigrant visa…”. (26 U.S.C. §922(g)(5)(B)).
  • DISHONORABLY DISCHARGED FROM ARMED FORCES: “Any person who has been discharged from the Armed Forces under dishonorable conditions.” 26 U.S.C. §922(g)(6).
  • RENOUNCED CITIZENSHIP: “Any person who, having been a citizen of the United States,has renounced his citizenship.” 26 U.S.C. §922(g)(7).
  • SUBJECT TO DOMESTIC PROTECTION ORDER: “Any person who is subject to a court order that” (26 U.S.C. §922(g)(8))
    • “Was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate”;
    • “Restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child;” and
    • “Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”
    • The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person. 18 U.S.C. 921(a)(32).
  • CONVICTED OF DOMESTIC VIOLENCE: “Any person who has been convicted in any court of a misdemeanor crime of domestic violence.” 26 U.S.C. §922(g)(9).

It doesn’t matter how much time has passed since the felony conviction or the misdemeanor domestic violence conviction for the statute to apply.  However, for the federal government to have jurisdiction over the case, the firearm must have been involved in “interstate or foreign commerce”.  This means that, at some point in its lifespan, the firearm or ammunition crossed a state boundary or international border.  Since this only has to occur at least once, this can be satisfied if the gun was manufactured in Ohio but is later found in Michigan with the offender.  This affects most pistols, rifles and shotguns in the United States.

A prohibited person who knowingly violates 26 U.S.C. §922(g) is guilty of a felony punishable by a fine and/or up to 10 years in prison, or both.  18 U.S.C. §924(a)(2).  In addition, a prohibited person who knowing violates 26 U.S.C. §922(g) and has three previous convictions by any court for a violent felony or a serious drug offense, or both, committed on occasions different from one another, can be sentenced up to 15 years in prison (the court cannot suspend the sentence or grant a probationary sentence).  18 U.S.C. §924(e)(1).  For purposes of this penalty enhancement:

  • “Serious drug offense” means an offense under the Controlled Substances Act punishable by 10 years or more in prison OR an offense under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” punishable by 10 years or more in prison. 18 U.S.C. §924(e)(2)(A).
  • “Violent felony” means “any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult (18 U.S.C. §924(e)(2)(B)), that”—
    • “Has as an element the use, attempted use, or threatened use of physical force against the person of another”; or
    • “Is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
  • “Conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony. 18 U.S.C. §924(e)(2)(C).

A prohibited person in possession of a firearm is an extremely serious felony offense under state and federal law that judges and prosecutors will not take lightly.  You need a skilled criminal defense lawyer in your corner to aggressively protect your rights and fight for the best outcome possible.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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