TFred wrote:Well I can understand not charging a felon for possessing a firearm if he uses the firearm in a self defense situation, and he only possessed it for that reason (example, a felon grabs a gun dropped by an armed robber to shoot that robber). However, if that felon had the firearm before he had his lethal encounter, or if he had it close by for that reason, then I believe he should still be found guilty of the firearms charge regardless of why he used his firearm.I've been following this case, and yesterday the convictions were tossed out and sent back for retrial.
The part that I found particularly interesting was the reference to the "common law defense of necessity". The appellant was convicted of possession of a firearm by a convicted felon, and was not allowed to argue that he used the gun only in an instant of self-defense.
Here's the blurb from the opinion:
Interestingly, the appeals court opinion seems to agree that this is a valid defense, and should have been heard in the original trial.For similar reasons, we hold the errors also were not harmless as to appellant's conviction for possessing a firearm after having been convicted of a felony. Appellant conceded he possessed the firearm long enough to shoot the decedent but claimed he was entitled to invoke the common law defense of necessity as recognized in Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001). The "essential elements" of this defense "include `(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.'" Id. at 49, 553 S.E.2d at 552 (quoting Buckley v. City of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).
Thus, we cannot conclude the error was harmless beyond a reasonable doubt as to appellant's bench trial conviction for possessing a firearm after having been convicted of a felony. Accordingly, we also reverse appellant's conviction for this offense and remand for retrial.
That is the "on-topic" part of the case, the rest of it has to do with the suppression of the apparent fact that the victim of the shooting, and the primary witness against the shooter and his claim of self-defense, were both gang members. The shooter was not a member of a gang.
This case really has a bad smell to it. The CA seemed to be gunning for a conviction, any conviction, no matter what the facts may be.
Here is a local news article about the ruling.
Any other opinions?