Everyday Carry – Page 11

The repercussions for a convicted felon accessing a firearm can be severe. Therefore, the question of whether or not being near someone who has a concealed carry permit for a convicted felon is one of great importance and potential consequence. A felon cannot be around someone with a concealed carry permit. Punitive action can be taken against a convicted felon if a case can be made that they have reasonable access to a firearm. How reasonable access is defined is the key determining factor. Read on to garner further insight that can help you understand the permissibility and potential liability of a convicted felon being near someone with a concealed carry permit. Disclaimer: As with any issue involving the law and guns, there are many caveats. We are not lawyers. Therefore, the content of this article should be taken solely for informational purposes and not as legal advice. What Laws Govern Gun Possession by Felons? If a person has been convicted of a felony at the federal or state level, restrictions on gun ownership and possession are imposed. This is a blanket prohibition under the Gun Control Act of 1968 and that was reinforced by the Firearm Owners' Protection Act law that was passed in 1986. More specifically, at the federal level, felons who have been “convicted in any court of a crime punishable by imprisonment for a term exceeding one year” are prohibited from owning or possessing any firearm or ammunition under U.S. Code 922 (g). U.S. Code 922 (g) That means that if your felony conviction falls under that defined in U.S.C. 922(g), simply being in possession of a gun, even if you do not own it, puts you in serious violation and you could face up to ten years in prison if caught. These are federal charges and they can stem whether your felony conviction involved a federal or state court. Even if your felony conviction falls outside that is defined by federal law, some states can impose restrictions on gun ownership and possession to those convicted of felonies involving sentences of less than one year. In some jurisdictions, even major misdemeanors may be included. It Is All About Defining Possession If you are thinking that, “well, if another person is carrying a concealed weapon with the proper permit, therefore, I am not in possession,” you need to reevaluate your premise. Under the law, there is the concept of “constructive possession.” This basically states that a person can be considered to be in legal possession of something—such as a firearm—even if they are not in direct physical control of it. Constructive PossessionThe legal possession of an object, even if it was not in a person’s direct physical control. Often used in criminal law prosecutions for possession crimes, such as possession of illegal drugs. Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object, and as well as the ability to control it. For example, someone with keys to a safe deposit box may have constructive possession to the contents of that box, and the owner of a car may have constructive possession of the contents of its trunk. Cornell Law School How can this apply to a felon being near someone with a concealed carry permit? As with anything involving the law, legal precedence formulates how legal nuance is applied. In the case of constructive possession, courts have applied it in cases when the person knows of the presence or existence of the object in question and has a reasonable ability to gain control of it. Again, we are not lawyers, but it is reasonable to assume that if you are with a friend or family member that is carrying a concealed weapon, under most circumstances, you would be within proximity where, if so inclined, you could reach or access the weapon. The way constructive possession is applied by the courts; could meet the “reasonable ability to gain control” portion. Mind you, this doesn’t mean that you actually attempted to reach for or wrestle the gun from your friend or family member. Simply the fact that you would reasonably be able to do so—even though you didn’t—would be enough. What if You Did Not Know the Person Had Concealed Carry? Continuing with the concept of constructive possession, if you were unaware that the person you were around was carrying a concealed weapon, that would liberate you from the “knows of the presence or existence of the object in question” portion. Of course, under those circumstances, the person with the concealed carry permit and weapon may be in legal trouble. Most states have laws governing concealed carry permits. In some jurisdictions, it clearly prohibits a person with such a permit from being in knowing and close proximity to a felon. You can see how this situation can create many legal grey areas and why consulting with an attorney in your state is often the best course of action to follow aside from never being around someone carrying a concealed weapon if you are a felon. What About in Constitutional Carry States? As a felon, being around someone with a concealed carry permit who is armed does not change the issues and consequences revolving around constructive possession even if you live in a Constitutional carry state. It may shield the concealed weapon carrier slightly, but not you, the felon. As such, regardless of what state you live in, knowingly being around someone who is carrying a weapon, concealed or otherwise, should best be avoided. What About Honest Mistakes? Theoretically, there can be situations where neither the felon nor the concealed carry individual knew each other’s situation. However, if you were to get pulled over under such circumstances and a police officer determines that you are in constructive possession of a firearm, technically, ignorance of the fact would shield you to some extent. However, it is not too far-fetched to envision a situation where the police officer would not be convinced and you could be detained. Then it would be up to the prosecutor's office whether or not to proceed with charges against you. It then becomes a matter of prosecutorial discretion. Would a prosecutor agree that it was an innocent mistake? Considering the potential ramifications, it is best to avoid even these types of “innocent misunderstandings.” What may seem like an innocent oversight on your part might be interpreted as constructive possession nonetheless by a prosecutor. Potential Solutions As a felon, the most effective solution would involve you never being in proximity to an individual that you know is armed. Mind you, the simple fact that the other person has a concealed carry permit does create a problem for you unless the person happens to be actually armed while around you. However, issues could arise if the person with the concealed carry permit lives at the same house as you. This, too, requires careful legal counseling to determine the best course of action to prevent potential legal problems for yourself or the concealed weapon owner. In some circumstances, keeping the gun in a locked gun safe to which you do not have access may make both of you compliant. Another solution would be to petition the jurisdiction that convicted you to restore your civil rights. However, if you follow this path, your restored rights must include the restoration of voting rights, the right to serve on a jury, and the right to seek and hold public office. Otherwise, the federal law prohibiting you as a felon to be near a forearm would still apply. Conclusion The short answer to whether a convicted felon can be around someone with a concealed carry permit is no, provided that the CCP holder happens to be armed. As a felon, you should never knowingly be around or near firearms. The only way to free yourself of this is by petitioning for your civil rights to be restored. The underpinning to all of this has to do with federal prohibitions against felons being in proximity to firearms and ammunition. Many caveats apply. This is why seeking legal advice for your specific situation is the most prudent course of action to take.