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Federal Criminal Defense Attorney Explains Illegal Firearm Possession (18 USC 922[g]).

Posted By Galluzzo & Arnone LLP || 3-Dec-2013

One of the most common criminal charges in the federal system is a violation of 18 USC 922(g). This chapter makes it illegal for certain persons to possess firearms. Notably, this charge in this subsection does not depend upon the type of firearm possessed, though that factor can affect the potential penalties for the offender.

The statute states the following:

(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien-
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(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.

Now consider the following about the above:

  • 1) Convicted felons

Generally speaking, this means that it is illegal for a convicted felon to possess a firearm, as felonies are typically by definition crimes punishable by a term in prison exceeding one year. Notably, it is irrelevant whether the felon actually served a jail sentence or not for his felony conviction – all that matters is whether the conviction itself could have legally resulted in such a sentence. The conviction need not have occurred within the territorial jurisdiction of the federal prosecution, meaning that the US Attorney for New Jersey can prosecute someone for possessing a firearm in New Jersey even if his prior felon conviction was in California.

  • 2) Fugitives from justice

This applies to anyone with an outstanding bench warrant for a criminal case or an escapee from prison or custody.

  • 3) Drug addicts

As a practical matter, this particular allegation is much more difficult for prosecutors to prove, as drug tests or admissions of this sort are not normally available to them.

  • 4) The mentally defective

This subsection is obviously quite controversial as it seems to demonize those that have sought treatment for mental illness; even those that have since been stabilized with medication or “cured” are still technically prohibited, for life, from owning a firearm once they have been committed to a mental institution for a period of time (absent any waivers of this charge).

  • 5) Illegal Aliens

Obviously, an illegal alien charged with possessing a firearm is not only facing criminal charges for possessing a firearm on U.S. soil, he is also likely facing removal/deportation proceedings as a result of this charge.

  • 6) Dishonorable Discharge

Interestingly, receiving a dishonorable discharge from any branch of the U.S. military prohibits a person from possessing a firearm in much the same way that a felony conviction would.

  • 7) Renouncing U.S. citizenship

This is rarely applicable or used, in that it would be a rare case to find a person that had 1) renounced his or her U.S. citizenship, 2) returned to U.S. soil, and 3) been arrested for possessing a firearm.

  • 8) People subject to orders of protection

As you can see from above, a person with a pending temporary or final order of protection – issued by either a family court or a criminal court – may also be prohibited from legally possessing a firearm under certain conditions. Most people subject to orders of protection against others as a result of New York state criminal court cases are probably unable to legally possess a firearm under federal law, though it would depend on the factors listed above.

  • 9) Misdemeanor convictions for domestic violence

Lastly, individuals that have been convicted of misdemeanor domestic violence crimes such as assault, aggravated harassment, endangering the welfare of a child, criminal contempt, menacing or other charges cannot legally possess a firearm under federal law. Typically in state court domestic violence crimes are specially designated as such and the resultant convictions are often specifically listed on criminal records as having been for “domestic violence”, making it easier for prosecutors to determine whether an individual in possession of a firearm has committed a federal crime on this basis.

If you or a loved one have been arrested for a federal drug charge like 18 USC 922(g), or if you have questions about whether your gun ownership is lawful, you should strongly consider contacting an experienced criminal defense attorney immediately.

For more on this subject, you can visit the ATF’s website.

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