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Thread: Visiting a convicted felon while armed

  1. #1
    Campaign Veteran Schlitz's Avatar
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    Visiting a convicted felon while armed

    I was recently told by someone that in Delaware if you visit the home of a convicted felon while you yourself are legally armed the felon can be arrested for that. I've been looking through Delaware's criminal law (looking right now in another tab) and I can't find anything to back this up. This person is very adamant about this and works in a law office where they were told by lawyers that this is true. Is anyone aware of any case law on this?

    Though I value this persons opinion, I know that there are plenty of confused people out there that really don't know what they're talking about.

    NOTE: By legally armed I mean concealing a firearm with a Delaware permit or permit/license recognized by the state of Delaware.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

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    Regular Member Fallschirmjäger's Avatar
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    Well... felons Are generally prohibited from possessing firearms, right?

    But then again you're prohibited from possessing heroin or monkey porn*, if I visit you with either of those in my briefcase would you go to jail for it?

    I think the key here would be who has possession, and of what.




    (technically I wouldn't have either of those, my two main vices being powdered sugar and redheaded midget porn.)
    Last edited by Fallschirmjäger; 09-21-2011 at 10:36 PM.

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    Regular Member MKEgal's Avatar
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    I've seen similar discussions here before, sometimes from a family member who has invited an (ex)-con to live with him (or maybe married a felon!) & now has to figure out what to do with his guns.

    IMHO, as long as it's in your possession your friend is OK. If it's in your holster, under your control, all the time, & there's no way he can get his hands on it.

  4. #4
    Campaign Veteran Schlitz's Avatar
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    Quote Originally Posted by MKEgal View Post

    IMHO, as long as it's in your possession your friend is OK. If it's in your holster, under your control, all the time, & there's no way he can get his hands on it.
    That's what I was thinking, but I wanted to find something black and white. I'm goolging away, but cannot find any case law on it.
    “The claim and exercise of a constitutional right cannot be converted into a crime.”
    [Miller vs. U.S., 230 F. Supp. 486, 489 (1956)]
    “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”
    [Sherar vs. Cullen, 481 F2d. 946 (1973)]

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    Regular Member CEM's Avatar
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    Quote Originally Posted by Schlitz View Post
    I was recently told by someone that in Delaware if you visit the home of a convicted felon while you yourself are legally armed the felon can be arrested for that. I've been looking through Delaware's criminal law (looking right now in another tab) and I can't find anything to back this up. This person is very adamant about this and works in a law office where they were told by lawyers that this is true. Is anyone aware of any case law on this?

    Though I value this persons opinion, I know that there are plenty of confused people out there that really don't know what they're talking about.

    NOTE: By legally armed I mean concealing a firearm with a Delaware permit or permit/license recognized by the state of Delaware.
    I sent you a PM re this but in short there is really no way I see him being in any trouble at all.

  6. #6
    Campaign Veteran skidmark's Avatar
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    The problem of looking for case law supporting the notion that a lawfully armed individual visiting a known convicted felon places the felon in violation of laws prohibiting possession of firearms is that there just are no cases to cite.

    There are cases regarding felons residing in dwelling places where a lawful possessor has firearms. There are cases when lawful possessors have removed their firearm from their direct and immediate control innsuch a way that the felon either did or could obtain control of the firearm.

    But as long as you retain control of the firearm you are not jeopardizng the felon.

    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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    Regular Member Large Caliber Kick's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    (technically I wouldn't have either of those, my two main vices being powdered sugar and redheaded midget porn.)
    Any innocence I might of had left is gone. Thanks.

  8. #8
    Regular Member Gunslinger's Avatar
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    If convicted of a crime of domestic violence, under Federal law, he cannot be in contact with firearms of any type and under 'any' circumstances. An affirmative defense may be that he was not aware of your having a firearm if it was concealed. That may not fly. If not, it is 5 years in Federal Prison mandatory sentence.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

  9. #9
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Gunslinger View Post
    If convicted of a crime of domestic violence, under Federal law, he cannot be in contact with firearms of any type and under 'any' circumstances. An affirmative defense may be that he was not aware of your having a firearm if it was concealed. That may not fly. If not, it is 5 years in Federal Prison mandatory sentence.
    This is BS.

    Yes, the Lautenberg Amendment strips folks of their 2A rights for non-felony convictions. But by your reasoning such a person, ny standing next to a cop, would be violating the prohibition rule and liable for arrest/conviction/incarceration.

    It's not "be in contact with firearms of any type and under 'any' circumstances". It's "cannot posses". There are many circumstances where constructve possession might be taking place, but those would all involve the OP removing the handgun from his holster and moving it to a place where the other person could access it without having to open any locks.

    Please read up on the laws you are going to use as scare tactics to see if they really are as frightening as you try to make them out to be.

    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"
    ----Allahpundit

  10. #10
    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by skidmark View Post
    This is BS.

    Yes, the Lautenberg Amendment strips folks of their 2A rights for non-felony convictions. But by your reasoning such a person, ny standing next to a cop, would be violating the prohibition rule and liable for arrest/conviction/incarceration.

    It's not "be in contact with firearms of any type and under 'any' circumstances". It's "cannot posses". There are many circumstances where constructve possession might be taking place, but those would all involve the OP removing the handgun from his holster and moving it to a place where the other person could access it without having to open any locks.

    Please read up on the laws you are going to use as scare tactics to see if they really are as frightening as you try to make them out to be.

    stay safe.
    Statement de jure on all domestic violence guilty findings in the state of Colorado (in part):

    1> Firearms and ammunition: You can never for the rest of your life own, be in possession of, or in the vicinity of any firearm or ammunition 18 U.S.C. § 922(g)(9). For example, if you are in a car and there is a single bullet or shell in the car you are guilty of a federal felony with a mandatory 5 to 10 year sentence. This is true whether you are given a deferred or adjudicated sentence as those are still convictions under federal law.

    Obviously you can never again get a hunting license but the law bars you from even being in a hunting camp with other armed hunters. Gun collections are also denied, nor can you be in a home with guns or ammunition present.

    Note that cartridges used in nail guns are ammunition so that you cannot work many construction jobs. Exploration for and exploitation of minerals, e.g., oil, gas, mining, will be excluded as well. You will also be barred from interstate transport of hazardous materials as well. And this summary of federally excluded activities is by no means exhaustive.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

  11. #11
    Campaign Veteran skidmark's Avatar
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    Gunslinger,

    That's not a citation that I can independently look at, judge, and decide if I agree with your interpretation or not. I'd really like to see whatever it is you are trying to use to say a convicted felon cannot even be "near" ammunition or a firearm - even if it's just in Colorado.

    Until you provide the citation (a link is just as OK as quoting the entire section of whatever law you are claiming makes that statement) I will continue to call BS on your assertion. If you provide the link and it turns out that your interpretation is correct I'll be apologizing and singing your correctness all over the place. But not until.

    Because your interpretation would make it another charge for any convicted felon to be near a cop for any reason. Were that the case cops could never approach convicted felons because doing so would force the felon into a crime they had no intention of committing. It would also result in cops arresting folks they knew were convicted felons just for being near them and the news would be full of stories of that happening.

    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"
    ----Allahpundit

  12. #12
    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by skidmark View Post
    Gunslinger,

    That's not a citation that I can independently look at, judge, and decide if I agree with your interpretation or not. I'd really like to see whatever it is you are trying to use to say a convicted felon cannot even be "near" ammunition or a firearm - even if it's just in Colorado.

    Until you provide the citation (a link is just as OK as quoting the entire section of whatever law you are claiming makes that statement) I will continue to call BS on your assertion. If you provide the link and it turns out that your interpretation is correct I'll be apologizing and singing your correctness all over the place. But not until.

    Because your interpretation would make it another charge for any convicted felon to be near a cop for any reason. Were that the case cops could never approach convicted felons because doing so would force the felon into a crime they had no intention of committing. It would also result in cops arresting folks they knew were convicted felons just for being near them and the news would be full of stories of that happening.

    stay safe.
    http://www.dvmen.org/dv-8.htm

    I am speaking of domestic violence misdemeanor convictions in CO, specifically El Paso County where I both have experience as a family member was a victim and sat on a jury for another case. This is the legal interpretation of penalties ongoing after conviction as presented by the El Paso County DA. As to your 'being near a cop,' statement, if you had read my initial post, you would have seen the words "affirmative defense." That would clearly apply to a cop or probation officer carrying while engaged with an offender.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Campaign Veteran skidmark's Avatar
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    Gunslinger,

    Thank you very much. You posted opinion and advice from an advocacy organization but not actual law (statute or case). Now I know where you are coming from. And that you are repeating false and misleading information.

    Your "affirmative defense" satatement does not match with
    Statement de jure on all domestic violence guilty findings in the state of Colorado (in part):

    1> Firearms and ammunition: You can never for the rest of your life own, be in possession of, or in the vicinity of any firearm or ammunition 18 U.S.C. § 922(g)(9). For example, if you are in a car and there is a single bullet or shell in the car you are guilty of a federal felony with a mandatory 5 to 10 year sentence. This is true whether you are given a deferred or adjudicated sentence as those are still convictions under federal law.
    But it really does not matter because now I and everyone else understands where you were taking the "statement" from. I do thank you for the effort you took to post the link.

    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"
    ----Allahpundit

  14. #14
    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by skidmark View Post
    Gunslinger,

    Thank you very much. You posted opinion and advice from an advocacy organization but not actual law (statute or case). Now I know where you are coming from. And that you are repeating false and misleading information.

    Your "affirmative defense" satatement does not match with


    But it really does not matter because now I and everyone else understands where you were taking the "statement" from. I do thank you for the effort you took to post the link.

    stay safe.
    The "false and misleading information" is from the El Paso County District Attorney's Office, word for word. It is merely copied on the web site I linked from them. Affirmative defense is a remedy for presumptive guilt. That is a basic tenent of Common Law. Believe as you wish, it doesn't change reality. "Everyone else" is your opinion and I seriously doubt "everyone" is as inclusive as you apparently are deluding yourself to believe. Or maybe the ADAs and Judges in the cases I referenced from personal involvement were just kidding me.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Campaign Veteran skidmark's Avatar
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    I concede. You win an internet argument. Please select your prize from anything on the middle shelf.

    stay safe.

    ETA -

    No. I can't let you think you actually convinced me or anybody else of anything except that you posted some opinion from folks who obviously do not know the law. But since the odds of me ever being involved in a legal case regarding this matter in that jurisdiction are near zip I just don't care. But you can still have a prize if you want one.
    Last edited by skidmark; 09-27-2011 at 02:39 PM.
    "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"
    ----Allahpundit

  16. #16
    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by skidmark View Post
    I concede. You win an internet argument. Please select your prize from anything on the middle shelf.

    stay safe.

    ETA -

    No. I can't let you think you actually convinced me or anybody else of anything except that you posted some opinion from folks who obviously do not know the law. But since the odds of me ever being involved in a legal case regarding this matter in that jurisdiction are near zip I just don't care. But you can still have a prize if you want one.
    I'll take a bit of your ego from the second shelf, as I have little of my own. BTW, I'll pass on to the El Paso County DA that they "obviously do not know the law" the next time I chat with them.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    I find it absurd that just because a DA states his opinion of a law that you believe it to be binding, and nothing is farther from the truth. This is simply his opinion, and nothing more, and his opinion is wrong, all you need to do is read the actual wording of the law for yourself and you would see this, this almighty DA is possibly an anti-gun advocate and trying to further his agenda with his position. However, being as he is not a U.S. Attorney general, he has no authority to issue a legal opinion on the matter. It upsets me when people say they are pro-rights, etc., yet they believe everything they hear simply because it comes from an officials mouth, totally absurd!!

  18. #18
    Regular Member Fallschirmjäger's Avatar
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    What was posted-
    1> Firearms and ammunition: You can never for the rest of your life own, be in possession of, or in the vicinity of any firearm or ammunition 18 U.S.C. § 922(g)(9). For example, if you are in a car and there is a single bullet or shell in the car you are guilty of a federal felony with a mandatory 5 to 10 year sentence. This is true whether you are given a deferred or adjudicated sentence as those are still convictions under federal law.
    What the law says -
    18 U.S.C. § 922
    (g) It shall be unlawful for any person -
    ...
    (9) who has been convicted in any court of a misdemeanor crime of domestic violence, 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.
    Is there anyone who sees the phrase "cannot be in the vicinity of" in the actual LAW?
    Last edited by Fallschirmjäger; 10-31-2011 at 10:02 PM.

  19. #19
    Regular Member Gunslinger's Avatar
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    Statutes are interpreted and expanded by court cases. No simple statute, Federal or Colorado, stands by itself but is "interpretation of law" decided by the judge. And often ends up with significant range not word for word explicit in that statute. At times, the statute's effect of what is unlawful bears little resemblance to the original wording. There are hundreds of examples--including SCOTUS findings on BoRs, that are so obvious I won't spend the time to cite. Stare decisis forms the basis for court decisions, including in this example. Some of you seem ignorant of this fact.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    A felon, being in a position where he/she can readily/easily gain possession of a firearm can be, and has been, considered "constructive possession" in Louisiana. I know this because I once encountered a felon riding around with another person who had a gun in his truck. The felons parol officer was advised of the incident--the felon went back to jail for "constructive possession"of a firearm. However--in this case the felon knew the other person had a weapon and still rode around with him--hence the charge. If he was unaware of the firearm I do not see a violation--such as standing in line in Wal-Mart where the guy ahead of him had a concealed firearm which was unknown to the felon. Rigid interpretation of such a concept would make it impossible for ANYONE convicted of ANY felony to safely go out in public for fear of arrest.
    Last edited by 4sooth; 11-24-2011 at 05:17 PM.

  21. #21
    Campaign Veteran skidmark's Avatar
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    A felon could ride around in a vehcle all day with a non-felon was wearing a handgun in a holster. Constructive possession requires that the felon have unrestricted/unimpeded access to the firearm If the felon attempted to grab the handgun the owner/wearer would resist, thus demonstrating that access was restricted/impeded.

    Using the already suggested scenarios I guess I have been in constructive possession of all that money in my bank because there was a possibility I could have physically gotten hold of it even though I never jumped across the counter between me and the tellers, or because the tellers all keep their cash drawers locked when not actually taking cash out or putting cash in, or because there is an armed guard who might shoot me if I actually tried. And if I've been in constructive possession of all that money I guess I could have constructivly purchased of all sorts of goodies and toys.

    Are parole officers, prosecutors, and judges going to abuse the situation? Heck, yes. Can felons so charged effectively dispute those attempts to abuse the situation? Heck, yes. Case law is full of examples.

    The reasons this argument is never going to end is because some folks do not understand the differnce between abusing the law and enforcing the law, some folks do not want to see felons get a break even if it means trampling on the rights of non-felons to make sure that happens, and, among other things, some folks refuse to expend the time, effort and sometimes money necessary to protect their rights.

    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"
    ----Allahpundit

  22. #22
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    Quote Originally Posted by skidmark View Post
    Gunslinger,

    Thank you very much. You posted opinion and advice from an advocacy organization but not actual law (statute or case). Now I know where you are coming from. And that you are repeating false and misleading information.

    Your "affirmative defense" satatement does not match with


    But it really does not matter because now I and everyone else understands where you were taking the "statement" from. I do thank you for the effort you took to post the link.

    stay safe.
    Hey, umm.. genius.. Reading comprehension can take you a long long way..

    "18 U.S.C. § 922(g)(9). " <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<
    Or just look it the fck up, before calling BS on everything anyone says just because U didnt say it...

  23. #23
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by j4l View Post

    "18 U.S.C. § 922(g)(9). "
    What does the Lautenberg Amentment (domestic violence convictions) have to do with carrying in the presence of a felon?

    stay safe.
    Last edited by skidmark; 12-15-2011 at 11:32 PM. Reason: better phrasing of question
    "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"
    ----Allahpundit

  24. #24
    Regular Member Gunslinger's Avatar
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    "Constructive possession." I thought I had made that clear, is what a judge decides as a matter of law. Why is that so difficult to comprehend? You cling to the incorrect assumption that statutes spell out every possible scenario. They do not nor could they. Court cases eventually do to a greater degree. And a ruling as to a fact of law may have small resemblance to the original law's wording.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

  25. #25
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    Here's a bizarre case: a former Border Patrol agent who was convicted for using excessive force, has been told that the conditions of his supervised release mean he can't return to his own home, because his wife is still an active LEO. He also can't visit or even associate with any of his friends or family who are LEOs.

    http://www.wnd.com/index.php?fa=PAGE.view&pageId=377437

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