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Thread: Question about gun purchases and convictions

  1. #1
    Regular Member Steeler-gal's Avatar
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    Question about gun purchases and convictions

    I'm trying to do some research for a friend and I'm not having much luck finding the answer in the VA code. Probably just bad keyword searches. Anyway, what I'd like to know is if someone convicted of a felony can he still buy a gun? What if the person is charged and then the charges are dropped so he's not convicted?
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    IANAL:

    But the ol Commonwealth likes to strip felons rights even for white collar non violent, So I would say felony = no purchase.


    Do no agree with this tho, someone who makes a mistake should not be revoked of a mistake if they have repaid their debt.
    Last edited by moriar; 11-15-2012 at 07:06 PM.

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    Regular Member papa bear's Avatar
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    to answer the second question. NO conviction means you are innocent, so you did not break the law
    Luke 22:36 ; 36Then said he unto them, But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment, and buy one.

    "guns are like a Parachute, if you don't have one when you need it, you will not need one again"
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    i you call a CHP a CCW then you are really stupid. period.

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    Regular Member ProShooter's Avatar
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    A convicted felon cannot buy/possess a gun..unless he gets his firearm rights restored by the Circuit Court.

    If he was charged and never convicted of a felony, then he is not a convicted felon. See above.
    Last edited by ProShooter; 11-13-2012 at 09:52 PM.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by ProShooter View Post
    A convicted felon cannot buy/possess a gun..unless he gets his firearm rights restored by the Circuit Court.

    If he was charged and never convicted of a felony, then he is not a convicted felon. See above.
    Short answer= What Proshooter said.

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    Regular Member Steeler-gal's Avatar
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    Question about gun purchases and convictions

    Thanks gang. I actually figured the answer to my second question was No.
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    Regular Member Steeler-gal's Avatar
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    Question about gun purchases and convictions

    One more question. Can he live with someone who does own firearms?
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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by Steeler-gal View Post
    One more question. Can he live with someone who does own firearms?
    I think an attorney would tell you "Yes, as long as the gun's owner has exclusive control over it".....or words to that effect.
    James Reynolds

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Steeler-gal View Post
    One more question. Can he live with someone who does own firearms?
    Depends on what she looks like!

    There is a fair amount of case law about exclusive control and the short answer again is, if he can't get them, yes.
    In one case the felon actually had the only key to the gun cabinet. The court decided that yes, he did have access to the guns (Gee).
    Last edited by peter nap; 11-14-2012 at 09:27 AM.

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    Quote Originally Posted by Steeler-gal View Post
    One more question. Can he live with someone who does own firearms?
    I've heard a lawyer respond to this very question. He said this, " Can you name one possesion that your husband/wife owns that you could not be considered in possesion of if a cop were to enter your home?"

    A felon can not have a gun in their home unless their rights have been restored. So even if a girlfriend or wife is the buyer and owner of the firearms. The felon still could be prosecuted for possesion...I could be wrong but thats what the attorney said.

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by love4guns View Post
    I've heard a lawyer respond to this very question. He said this, " Can you name one possesion that your husband/wife owns that you could not be considered in possesion of if a cop were to enter your home?"

    A felon can not have a gun in their home unless their rights have been restored. So even if a girlfriend or wife is the buyer and owner of the firearms. The felon still could be prosecuted for possesion...I could be wrong but thats what the attorney said.
    While cops and Commonwealth Attorneys will try mightily for constructive possession, there are many ways of preventing the disabled* person from even constructively possessing a firearm. Most involve the use of some barrier that is secured - a gun safe, a locked** closet, a separate room with a locked** door, etc. Remember, it is the requirement of the prosecution to prove beyond a reasonable doubt that the disabled* person either had actual access or actually could gain access without either destroying the barrier or coercing/threatening the non-disabled person. All the defense has to do is deny the allegation.

    love4guns' attorney was most likely trying to take the easy way out without needing to give a detailed lesson in several aspects of statutary and case law. It also makes it more difficult for the client to come back and say "But he told me I could!".

    In answer to love4guns' question - the future former wife and I both had security chests (el cheapo fire resistant boxes) where personal papers were kept. Neither had the key to the other person's box for legal and personal reasons. YMMV regarding going that route.

    stay safe.

    * - the law talks about certain persons, such as convicted felons, as "being under a disability" from possessing (among other activities) firearms. If the law is going to use a term of art we ought to get used to also using it.

    ** - a closet door equipped with a hasp and padlock, or a room door so equipped, is considered secured. If the disabled* person does not have the combination or they key they cannot physically let alone constructively posses what is behind the lock.
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    Quote Originally Posted by ProShooter View Post
    A convicted felon cannot buy/possess a gun..unless he gets his firearm rights restored by the Circuit Court.

    If he was charged and never convicted of a felony, then he is not a convicted felon. See above.
    HOWEVER, the convicted Felon must first have his/her Rights Restored by the Governor. You need those Rights Restored before you can petition the Circuit Court where the convicted felon resides.

    http://www.commonwealth.virginia.gov...estoration.cfm

    The RKBA is a separate action to be filed in Circuit Court. Can't do the RKBA without the Governor's action first.
    Last edited by kenny; 11-16-2012 at 07:53 AM. Reason: Clarification

  13. #13
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by kenny View Post
    HOWEVER, the convicted Felon must first have his/her Rights Restored by the Governor. You need that before you petition the Circuit Court where the convicted felon resides.
    Please provide a citation for this. I understood that the Governor can restore basic civil rights (such as voting, holding public office, serving on a jury) but has no power to address RKBA. If I am misunderstanding something please educate me.

    stay safe.
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    Activist Member nuc65's Avatar
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    Restoration of rights under VA law

    http://www.vsp.state.va.us/Firearms_Restoration.shtm, looks like Circuit Court, and or Governor, and or BATFE or some combination therof can restore rights to firearms.


    Restoration of Firearm Rights
    One who is convicted of a felony automatically loses his firearm rights under state and federal law. If you have been convicted of a felony as described in Section 18.2-308.2 of the Code of Virginia, you may still be eligible to purchase a firearm if your rights have been restored under both state and federal law, as follows:
    You have been pardoned or have had your political disabilities removed pursuant to Article V, Section 12 of the Constitution of Virginia, and if the executive order does not place any conditions upon the reinstatement of your right to ship, transport, possess or receive firearms.

    -OR-
    You have been granted permission by the Circuit Court of the jurisdiction in which you reside to possess or carry a firearm (with no restrictions on the type of firearm) and one of the following:

    • you have had all other political rights restored by the Governor, or,
    • you have had your federal disabilities removed by the Bureau of Alcohol, Tobacco and Firearms.

    -OR-
    You have had your political rights restored by the Governor of Virginia or the Governor of the State in which you were convicted and one of the following:

    • the reinstatement of rights included the right to ship, transport, possess or receive firearms,
    • you have had your firearms rights restored by the Virginia Circuit Court in the jurisdiction in which you reside, or
    • you have had your federal disabilities removed by the Bureau of Alcohol, Tobacco and Firearms.

    It is your responsibility to furnish evidence of eligibility to the Department of State Police Firearms Transaction Center at Post Office Box 85608, Richmond, Virginia 23285-5608, fax (804) 674-2791, or email firearms@vsp.virginia.gov.
    The removal of federal firearms disabilities imposed by a state felony conviction will automatically result where there has been a restoration of all civil rights; i.e., the right to vote, hold public office, be a juror, and an unrestricted restoration of a person’s rights under state law to receive and possess firearms. An example of a restricted permit is one that limits the purchase, possession or transportation of a firearm to rifles or shotguns, only, for the purpose of hunting.
    State restoration of all civil rights does not remove the disabilities imposed as a result of a federal conviction. The Supreme Court has held that persons convicted of federal felonies remain subject to the federal firearms disability until their rights are restored through a federal, not state, procedure. For more information concerning this process please contact the Bureau of Alcohol, Tobacco, Firearms and Explosives.

    References:

    • Virginia Code Section 18.2-308.2
    • 18 United States Code Section 922 (g)
    • Beecham V. United States No. 93–445. Argued March 21, 1994—Decided May 16, 1994
    • Caron V. United States No. 97–6270. Argued April 21, 1998—Decided June 22, 1998

    For more information concerning the restoration of civil rights, please contact the Office of the Secretary of the Commonwealth.
    For more information concerning the Federal Gun Control Act, please contact the Bureau of Alcohol, Tobacco, Firearms and Explosives.
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  15. #15
    Campaign Veteran skidmark's Avatar
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    Thanks.

    I should have mentioned that I was looking for (and my Google-fu being weak today cannot find) clarification of a (fairly recent) ruling I seem to recall that said that due to some glitch/hitch in the system only the Circuit Court can restore gun rights. Also if all other rights have to be restored first.

    Your response seems to answer that. I think. Maybe. I need a flow chart - especially about federal restoration.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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    Accomplished Advocate user's Avatar
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    Not in response to anything in particular, a couple of observations:

    1. "Conviction", in Virginia, means that there has been a finding of guilt AND pronouncement of sentence in open court. That means an oral statement by a judge in a court of competent jurisdiction, as well as a written order reflecting that conclusion. Unless there is BOTH the finding of guilt AND pronouncement of sentence, there is no conviction. There will still be a record of an arrest, and there may be a finding of guilt (e.g., a "suspended imposition of sentence" following a period of probation such that one might have his case dismissed if he's been "good"), which can affect other things, such as the ability to get the record expunged.

    2. "Possession" does not mean "on or about one's person". It means "having the present ability to exercise dominion and control" over the item, and not necessarily exclusive "dominion and control". Alternatively, as has been suggested, if another person has EXCLUSIVE control, then that proves that the first could not have exercised dominion and control. Also, there is no necessary relationship between ownership (or "title") and possession. A felon may lawfully own a firearm, but only as long as he is never in possession of it. The usual thing in my experience is that the guns are stored with a parent or in a safe to which only the spouse has access (combination locks are best).
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Accomplished Advocate peter nap's Avatar
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    I'm curious Steeler Gal....Are you a firearms instructor?

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    Regular Member Steeler-gal's Avatar
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    Question about gun purchases and convictions

    Quote Originally Posted by peter nap View Post
    I'm curious Steeler Gal....Are you a firearms instructor?
    Why do you ask?
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  19. #19
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Steeler-gal View Post
    Why do you ask?
    Just curious!

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    Regular Member Steeler-gal's Avatar
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    Question about gun purchases and convictions

    Quote Originally Posted by peter nap View Post
    Just curious!
    Oh! Yes, I am.
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  21. #21
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Steeler-gal View Post
    Oh! Yes, I am.
    I thought I heard that somewhere. I get people that ask about training fairly often and didn't have any idea about who to recommend in NOVA. (I have a few I won't recommend).
    Thanks!

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