Mississippi Criminal Defense Blog » Firearms Offenses & Crimes

The dirty little secret about a conviction for misdemeanor domestic violence.

Clarence T. — Sun, 04 Jul 2010 03:19:42 +0000

If you are convicted of even the most minor misdemeanor domestic violence charge you could lose your right to possess a firearm.

In 1996 Congress enacted the Domestic Violence Offender Gun Ban (“Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”, Pub.L. 104-2208, 18 U.S.C. § 922(g)(9). This law prohibits shipment, ownership and use of guns or ammunition by individuals convicted of a misdemeanor crime of domestic violence, or who are under a restraining order for domestic abuse. It is also unlawful to sell or give a firearm or ammunition to such a person.

What qualifies as a “misdemeanor crime of domestic violence”?

18 U.S.C. §921(a)(33)(A)(ii) defines this term as ”an offense that: (i) is a misdemeanor under federal or state law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

Mississippi’s simple and aggravated domestic violence offenses, which are included in the statute for simple assault at Miss. Code Ann. § 97-3-7, most definitely qualify. Several other statutes probably qualify as well. As pro-gun as our great state is, the Mississippi Court of Appeals went out of its way to recognize the operation of this law when it overruled a chancellor’s decision to award two pistols to the wife in a divorce case. See Smith v. Smith, 994 So.2d 882 (Miss. App. 2008). The wife had pleaded guilty previously to stabbing her husband, and so the Court of Appeals remanded the case back just so the Chancery Court could take the guns away from her! Id.

How does the law operate?

A misdemeanor conviction triggers the gun prohibition if the offense includes an element requiring proof of the use or attempted use of physical force, or the threatened use of a deadly weapon. You must be a current or former spouse, parent, or guardian of the victim; a person with whom the victim shares a child; a person with whom the victim has cohabitated or is cohabitating as a spouse, parent, or guardian; or a person “similarly situated” to a spouse, parent, or guardian of the victim. Yes, common law marriage qualifies.

Is there an exception for police officers or members of the armed forces, since they have to carry weapons as part of their job?

No. If you are in the military, or are career law enforcement, please be advised that any sort of plea agreement to a domestic violence charge can possibly kill your career. Even if you are not in the military, be advised that a plea of guilty in a domestic violence case can keep you from ever owning a firearm again.

If you are accused of domestic violence you will need to think through these things with your lawyer. Give me a call if you need my assistance.

Another Victory for the Second Amendment in the U.S. Supreme Court

Clarence T. — Tue, 29 Jun 2010 02:38:50 +0000

Today, in the landmark decision of McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right to keep and bear arms now applies against state and local governments, in addition to the federal government. If you want to see the opinion, here it is. Don’t accidentally hit print; the thing is 214 pages long. It was a ”5-4″ decision, meaning five justices voted in favor, and four against.

This decision is another big victory for gun owners. The first came in 2008, and I previously posted on that decision here. The first decision basically resolved the arguments that had been going on forever about whether the Second Amendment really gave an individual the right to keep and bear arms. The Supreme Court ruled in 2008 that ”the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,” and that the federal government could not make laws that infringe upon that right.

The decision today was a natural follow-up to the first decision. Today’s ruling extended the Court’s 2008 ruling to state and local governments as well. Here is a key quote from today’s opinion, penned by Justice Samuel A. Alito Jr., that lays out the reasoning:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. . . . We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

I support this decision, and the reasoning behind it, if for no other reason than it is consistent. Most of the other rights have already been incorporated against the states. So once this right was finally found to be an individual right, it made sense to apply it to the states as well as the federal government.

On an unrelated note, Justice John Paul Stevens, 90, retired today, having served on the Supreme Court for an astonishing 35 years. He was one of the most liberal Justices on the Court, and I personally didn’t see it his way on a number of things, but he wrote in a letter to his colleagues that “if I have overstayed my welcome, it is because this is such a unique and wonderful job.” A class act, and I wish him well.

So practically, what does this mean? Does this mean that if you are a convicted felon you can head out to Bass Pro, Surplus City, or Vann’s and stock up? No it does not.

States and cities have a variety of laws restricting gun ownership, such as requiring mental health background checks or waiting periods before gun purchases. These restrictions, which some will argue are “reasonable,” may now have to be challenged to to define the now-different boundaries of gun ownership and government regulation. But the Supreme Court made it clear in the 2008 Heller decision that long-standing reasonable restrictions on gun ownership, such as possession by felons, mentally ill persons, and persons convicted of domestic violence, as well as geographic restrictions, such as prohibitions against guns in schools, courthouses, etc., are still intact.

You can still get into trouble in the following ways, which are (currently) valid restrictions on the possession and use of firearms:

Carrying a concealed weapon
Assault with a deadly weapon
Possession of an unregistered gun
Brandishing a firearm
Unlicensed firearms
Felon in possession
Possession by a minor
Unlawful discharge of a weapon
Unlawful sale of firearms
Carrying a concealed and loaded firearm in a vehicle
Federal firearms violations, including possession of a machine gun or silencer
Possession of assault weapons

If you get into trouble with a weapon give me a call at 601-991-1099. I’ve done a good many of these cases, and I’ll be glad to talk to you about it.

Second Amendment Issues in Mississippi

Clarence T. — Wed, 19 Aug 2009 04:31:43 +0000

I received a very interesting call about a month ago. It seems that the National Rifle Association needed a lawyer in Mississippi experienced with firearms and familiar with gun laws to refer litigation to on an “as needed” basis. The NRA’s Office of Legislative Counsel ran across my website, and we quickly formed a great relationship.

The NRA has since named me its “referral counsel” in Mississippi for NRA members that need help with gun issues, etc. I’m not a “gun nut,” but I’ve been around firearms my entire life. I can still field strip an M16A2 service rifle with the best of them, and so I gladly accepted the honor and responsibility of helping people with legal issues regarding firearms in the state of Mississippi.

Firearms are a part of our culture in this state. You don’t have to be in Mississippi long to know that it embraces the hunting/sporting ethos with great enthusiasm. And so the U.S. Supreme Court’s decision last year in District of Columbia et al. v. Heller met with little dissent in these parts.

After decades of speculation by analysts and court-watchers, the U.S. Supreme Court finally held that the Second Amendment to the Constitution protects an individual’s right to possess a firearm that is unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Gun control advocates have maintained forever that the second clause of the sentence is dependent on the first, so that the individual right to possess firearms is dependent on the existence of, or participation in, a militia.

The Court finally put an end to this long debate, holding that the Amendment’s first clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. See District of Columbia et al. v. Heller, 128 S.Ct 2783 (2008).

So, for now, it looks as if it will quite literally take an amendment to the Constitution in order to “pry [a Mississippian’s] cold dead fingers” from their favorite beloved firearm. Praise the lord and pass the ammunition. With that issue somewhat resolved, what kinds of trouble can you still get into with a firearm?

This is a partial list of crimes that have to do with possessing a firearm or explosive device:

Carrying a concealed weapon
Assault with a deadly weapon
Possession of an unregistered gun
Brandishing a firearm
Unlicensed firearms
Felon in possession
Possession by a minor
Unlawful discharge of a weapon
Unlawful sale of firearms
Carrying a concealed and loaded firearm in a vehicle
Federal firearms violations, including possession of a machine gun or silencer
Possession of assault weapons

These crimes can generally be pursued in both federal and state court. Some of these crimes are stand-alone offenses, and some are “enhancements” to other offenses. The penalties tacked on in the federal system for using a firearm in the commission of certain crimes are especially brutal.

A lawyer that knows about firearms can also help you with the loss and restoration of firearms possession rights, which can be forfeited as the result of a felony conviction, a domestic violence conviction, or other crimes. Your firearm itself may also be forfeited as the result of criminal charges, and a knowledgable firearms lawyer can help you with forfeiture issues as well.

So in summary I am proud that the NRA found me and has expressed their confidence in me to litigate firearms issues in this state. This will certainly irritate some of my more liberal friends, but I know they can get past it. If you find yourself in trouble, and there is a firearms issue with your case, call me and we’ll work the problem together.

If you or a family member have been arrested, or are under investigation in the state of Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.

Run, Forest, Run!

Clarence T. — Wed, 22 Jul 2009 11:14:37 +0000

Shortly after 10 a.m. today, a man with a red bandanna and hair net across his face entered the Citizens Bank branch in Forest, Mississippi, east of Jackson, and pointed a pistol at a teller. The man had enough foresight to bring his own bag, and the teller filled it with money. The man left the bank on foot, and police found the hair net on a trail in the woods behind the bank. After running dogs through the woods, the police failed to apprehend the suspect. They think he lives close to the bank due to his ability to slip through the area so easily.

Bank robbery has been classified as a federal crime since 1934. It is defined as:

the taking or attempted taking of anything of value from a person or presence of another by the use of force and violence or intimidation when the property is insured by Federal Deposit Insurance Corporation and is the property of any bank, credit union or any savings and loan association that is a member bank of the Federal Reserve System or organized or operating under the laws of the United States.

I had a bank robbery case in federal court last year, and I’m likely to have another one soon. Bank robbery is on the rise lately, according to the FBI. These cases are always challenging. Trying a case in federal court is very different than trying a case in state court, and the same attorney that did the closing on your house is probably not the right attorney for your case in federal court.

Federal criminal law is a specialized field that requires knowledge of federal rules of evidence, procedure, and the sentencing guidelines. The sentences tend to be stiff, and convictions can result in imprisonment, restitution, large fines, community service, probation, and parole, among other things. There are other nuances to federal criminal law and procedure, so if you find yourself in a tangle with the feds, give me a call before you do anything else, and we’ll get you through it.

If you or a family member have been arrested, or are under investigation for Bank Robbery in the state of Mississippi and you need help, give me a call at 601-991-1099. If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.

Or you can e-mail me at clarence@guthriefirm.com.