In Arizona, people who have been convicted of a felony are prohibited by law from owning firearms. If a convicted felon is caught in possession of a firearm, it is a Class 4 felony for "Misconduct Involving Weapons". Even worse, because the initial prohibition is based upon the prior felony conviction, people charged with misconduct involving weapons are constantly confronting the mandatory prison time that accompanies the charge.
Obviously, is better to avoid the charge in the first place by taking steps to have your felony conviction set-aside after the completion of probation. The set-aside along with a restoration of rights will keep people safe from potential prosecution for misconduct involving weapons. However, most clients we meet with have already been charged with misconduct involving weapons – and thus a set aside or restoration is no longer effective.
So the big question for this article is - what defenses might exist to misconduct involving weapons charges arising from a convicted felon's possession of firearms?
In order to make a case on misconduct involving weapons charges, the prosecutor has to prove that three basic facts. First – that the suspect is, in fact, a convicted felon. Second -that the convicted felon is in possession of a firearm. Third - that the firearm is operable.
So two obvious defenses are that the person charged is not actually a convicted felon and/or that the firearm is not operable. But the most common and effective defense to these charges revolves around the question of whether the firearm was actually in the "possession" of the suspect.
In other words, what is the meaning of the word "possession." In order for the police or prosecutor to prove that a person is in possession of a firearm, they must prove that the person knowingly exercised
dominion and control over the firearm.
What happens if a firearm is found in an automobile being driven by a prohibited possessor? What happens if the prohibited possessor is merely a passenger in the car? What happens if the firearm is found in a home owned or resided in by the prohibited possessor? The question of legal possession is wrapped up in each of these scenarios.
Let's first address the question of "knowingly" possessing a firearm. The prosecutor has to prove that the person knew the firearm was present with them in the car or house ( in our examples). How might they do this? Or, to put it another way, how what might we in the defense of our client raise reasonable doubt as to whether client actually knew that the presence of a firearm? Will we need to ask the right questions. Was the car owned by our client, the defendant in the case? Where within the car was the gun found? Was it in the center console right next to the prohibited posessor's wallet? Or was it in the backseat on the floor next to some trash? Was it found in the jacket of a third-party in the car?
Similar questions are asked in any potential case – including in our example of a gun in a residence. Whose bedroom was the firearm found in? Was it found in the defendant's bedroom along with his clothing in the dresser drawer? Or was it found in a roommate's bedroom? Was it found in the kitchen?
The answer to these questions can make or break the case.
In every misconduct involving weapons case, we need to be sure to examine the specific context of the facts for the purpose of determining whether there was knowing possession.