Friends with a felon...

Polynikes · Sep 26, 2011

Sparked by this thread here, http://forum.opencarry.org/forums/s...icted-felon-while-armed&p=1617237#post1617237, I’m hoping that some of the people here who are better versed than me in the law can jump in with some interpretation.

It has recently come to my attention that a close friend of mine has a 20 year old Assault conviction in the state of CA on his record. He now lives here in CO. My big concern is how this affects my ability to carry around him, and what negative consequences he, or I might face.

Searching the CRS, the best answer I can find is this:

Colorado Statutes/TITLE 18 CRIMINAL CODE/ARTICLE 12 OFFENSES RELATING TO FIREARMS AND WEAPONS/PART 1 FIREARMS AND WEAPONS - GENERAL/18-12-108. Possession of weapons by previous offenders.
18-12-108. Possession of weapons by previous offenders.

(1) A person commits the crime of possession of a weapon by a previous offender if the person knowingly possesses, uses, or carries upon his or her person a firearm as described in section 18-1-901 (3) (h) or any other weapon that is subject to the provisions of this article subsequent to the person's conviction for a felony, or subsequent to the person's conviction for attempt or conspiracy to commit a felony, under Colorado or any other state's law or under federal law.

(2) (a) Except as otherwise provided by paragraphs (b) and (c) of this subsection (2), a person commits a class 6 felony if the person violates subsection (1) of this section.

(b) A person commits a class 5 felony, as provided by section 18-12-102, if the person violates subsection (1) of this section and the weapon is a dangerous weapon, as defined in section 18-12-102 (1).

(c) A person commits a class 5 felony if the person violates subsection (1) of this section and the person's previous conviction was for burglary, arson, or any felony involving the use of force or the use of a deadly weapon and the violation of subsection (1) of this section occurs as follows:

(I) From the date of conviction to ten years after the date of conviction, if the person was not incarcerated; or

(II) From the date of conviction to ten years after the date of release from confinement, if such person was incarcerated or, if subject to supervision imposed as a result of conviction, ten years after the date of release from supervision.

(d) Any sentence imposed pursuant to this subsection (2) shall run consecutively with any prior sentences being served by the offender.

So am I correct in thinking that I can carry my firearm around him, as long as he is not handling the weapon? What about if I’m riding in his car or at his house? What if he comes over to my house and I have a firearm in a readily accessible area, but actually not on me?

Just looking for a little brainstorming on this, so all opinions are welcome. Please support your answer as best you can.

Ready, Set, GO!!!

nebmike · Sep 26, 2011

I assume from your subject line that you do indeed know whether the assault conviction was actually a felony (because not all assaults are felonies)? Secondary to that would be whether or not the assault was a domestic assault? If either of those are true then there are some considerations to be made...

If you personally maintain custody and control of your weapon (and I use that term, because firearms arent the only potential issue here) at all times, then there should be no issue legally for you or him. In other words, you need to be carrying it on you... dont put it in a gym bag and stick it in the back seat of a car that he is riding in (for example), because its possible an officer may arrest him and charge him with it.

I'm not familiar with California law, but if he was indeed convicted of a felony (vs a misdemeanor domestic assault), it could be "possible" that he may be able to possess a firearm. Laws vary from one jurisdiction to another -- but for example, in some states if you are convicted of a felony and are only sentenced to probation (i.e., no prison term), there are stipulations in law that automatically restore your civil rights (in some areas its immediately upon successful termination of probation, and some only after a lapse in time - say, ten years of clean living). The key here is that the laws in the location where the conviction occurred are what applies -- NOT the laws where he currently lives (if they arent one in the same). I would recommend that he do a little research (and that will probably require consulting with an attorney in California and an attorney here in Colorado).

If this was a one-time thing for him and he hasnt been in trouble since then, I would recommend that he apply through California for a pardon. After that much time, it is very likely that it would be granted. Keep in mind though, some pardons restore the right to possess firearms and some dont. In some states, you specifically have to petition for that particular right to be restored in addition to and separately from those which are automatically restored with the pardon. A pardon would be a good idea for him pursue even if he isnt wanting to own firearms.

In the mean time, as I said, if you are going to be around him and be armed, make damn sure it is in your physical possession at all times. Its not so much that you can get yourself into trouble (though, cops and prosecutors can certainly cause you issues under the right circumstances), but its that you put him in jeopardy of being charged as a felon with a gun... which is another felony for him (and in some <most?> jurisdictions it carries a manditory prison sentence).

Good luck!

JamesB · Sep 26, 2011

nebmike said:
I assume from your subject line that you do indeed know whether the assault conviction was actually a felony (because not all assaults are felonies)? Secondary to that would be whether or not the assault was a domestic assault? If either of those are true then there are some considerations to be made...

If you personally maintain custody and control of your weapon (and I use that term, because firearms arent the only potential issue here) at all times, then there should be no issue legally for you or him. In other words, you need to be carrying it on you... dont put it in a gym bag and stick it in the back seat of a car that he is riding in (for example), because its possible an officer may arrest him and charge him with it.

I'm not familiar with California law, but if he was indeed convicted of a felony (vs a misdemeanor domestic assault), it could be "possible" that he may be able to possess a firearm. Laws vary from one jurisdiction to another -- but for example, in some states if you are convicted of a felony and are only sentenced to probation (i.e., no prison term), there are stipulations in law that automatically restore your civil rights (in some areas its immediately upon successful termination of probation, and some only after a lapse in time - say, ten years of clean living). The key here is that the laws in the location where the conviction occurred are what applies -- NOT the laws where he currently lives (if they arent one in the same). I would recommend that he do a little research (and that will probably require consulting with an attorney in California and an attorney here in Colorado).

If this was a one-time thing for him and he hasnt been in trouble since then, I would recommend that he apply through California for a pardon. After that much time, it is very likely that it would be granted. Keep in mind though, some pardons restore the right to possess firearms and some dont. In some states, you specifically have to petition for that particular right to be restored in addition to and separately from those which are automatically restored with the pardon. A pardon would be a good idea for him pursue even if he isnt wanting to own firearms.

In the mean time, as I said, if you are going to be around him and be armed, make damn sure it is in your physical possession at all times. Its not so much that you can get yourself into trouble (though, cops and prosecutors can certainly cause you issues under the right circumstances), but its that you put him in jeopardy of being charged as a felon with a gun... which is another felony for him (and in some <most?> jurisdictions it carries a manditory prison sentence).

Good luck!

+1

I would also add that the charge of felon in posession (the statute cited above) requires "knowing possession" (greater degree) as opposed to "mere posession" (lesser degree). In other words, if your shotgun is in a gym bag in the back seat and he is a passenger but thinks your gymbag is full of gym clothes, he may be in mere possession because he's in the same vehicle, but not in knowing possession. Same goes at the house. If a handgun is in a shoebox with a tin of shoe polish on top, I would assume that it contained shoes unless I was told otherwise.

since9 · Sep 27, 2011

Polynikes said:
So am I correct in thinking that I can carry my firearm around him, as long as he is not handling the weapon?

Close. Let's look at the cornerstone of the reg, bit by bit:

A person...

That the person who was convicted, not you.

...commits the crime of possession of a weapon by a previous offender...

Again, the "previous offender" is the person who was convicted.

...if the [convicted] person knowingly possesses, uses, or carries upon his or her person a firearm.

You could put it in his napsack without his knowledge and he would not be guilty. You could put it on the kitchen table in front of him while you two are playing cards and he would not be guilty. Neither, for that matter, would you. I would never push your luck, though, as some combination of cop/DA might convince the court or a jury that he had knowledge when he didn't, and game over!

But you can never allow him to touch it, for that would constitute possession under knowledge. To be on the safe side, I would only have it on my person or in a safe when he's in your house, or on your person if you're in his house. If you need to take it off while visiting him, lock it in your car.

I know that's harsh, especially for a good friend who might be a very different person today than he was back then. It is, simply, the law. Run afoul of it and both of you will pay the price, but him in a far bigger way.

So, if you care about your friend and his legal future, do not allow him the opportunity to come in contact with your firearm.

JamesB · Oct 1, 2011

As it was briefly discussed in another topic thread and really belongs here, I'll try to elaborate just a little.

People v. Ford (1977)

From what I have read of this case, the Colorado Supreme Court held that even convicted felons have the right of self defense. What the case focused on was a convergence of 18-12-108 (possession of weapons by previous offenders) and section 13 article II of the Colorado Constitution ("the right on no person to keep and bear arms in defense of his home, person and property...shall be called in question."

The specifics of the case were that a previous felon (Ford) had his home broken into while he was home and used a firearm to repel the intruder. So, the case has really only delt with a felon defending his home. I don't know if the same arguement could be made for carrying on the hip for defense. It also requires proof that said felon only posessed the firearm for the purpose of defese.

That being said, that case was in 1977. The makeup of the courts has changed a little since then. Perhaps it's better to err on the side of caution, I'll leave that up to personal discression.

In closing, I AM NOT A LAWYER. Please do not take this as legal advise.

since9 · Oct 2, 2011

JamesB said:
In closing, I AM NOT A LAWYER. Please do not take this as legal advise.

You may not be a lawyer, but that last summary was quality work. Spot-on.

M-Taliesin · Oct 2, 2011

Howdy Amigo!
In this instance, I'd be much less concerned with firearms than redemption of the felon in question.
What is his attitude about his conviction? Is he repentant of that conviction? Does he regret his wrong?
Has he changed his life around to be a law abiding citizen today? Is he committed to abiding by the law?

If all of those factors are true, I'd suggest he pursue expungement of his record in California.
It won't erase that criminal record, but will show that he completed all legal requirements to have that
conviction expunged. This could, reasonably speaking, clear him to own and carry a firearm.
Not being a lawyer, I wouldn't depend too strongly on my advice here, but is what I'd look into as pertains
to firearms.

Assuming he does not have other convictions on his record, I'd believe that getting an expungement on a
20 year old violation would be doable. The ownership of firearms may be possible once that conviction gets
expunged.

Blessings,
M-Taliesin

JamesB · Oct 3, 2011

Just found this one...

http://uspolitics.einnews.com/247pr/238545

It's from Utah I know, but the Federal ramifications belong in this thread.

October 02, 2011 /24-7PressRelease/ -- Utah has a reputation for being a hunting and gun friendly state. However, state law still prohibits convicted felons from owning guns, much in the same manner that federal law does. Due to both state and federal restrictions, one Salt Lake City gun charges lawyer says that individuals facing gun charges may not realize that they can face charges at both levels even though one act occurred.

Federal Penalties

Not all Utah residents are free to own guns, however. Federal law prevents any felon from possessing a firearm or ammunition, either inside or outside his or her home. The law mandates a ten year prison sentence for those who violate it. The exception to this law is if the state in which the person resides has fully restored the individual's civil rights or pardoned or expunged the offense.

Friends with a felon...

Polynikes

Regular Member

nebmike

New member

JamesB

Regular Member

since9

Campaign Veteran

JamesB

Regular Member

since9

Campaign Veteran

M-Taliesin

Regular Member

JamesB

Regular Member