Back in 2008, I wrote a brief article entitled “Gun Rights for Convicted Felons?“ In that article, I noted that a US Federal law (and various state laws) prohibit anyone convicted of a felony from possessing firearms*, and stated that such a blanket ban on firearm ownership seems illogical and unreasonable.
I reached that conclusion primarily because many felonies are not crimes of violence, and the fact that a person is convicted of any felony is not a good predictor that the person is forever a danger if armed. For example, a felony conviction for tax evasion would seem to have little if any value when evaluating whether a particular person is likely to commit a crime of violence with a gun. A drug possession felony conviction from 1960 doesn’t seem to suggest that the person will commit a crime of violence with a gun in 2012. It would even seem difficult to say that a person convicted of a felony battery for a fist fight in a bar when they were 21 years old would pose a danger of committing a crime with a gun when they are 85 years old.
In other articles, I’ve discussed the fact that even if such total bans on firearm ownership by anyone convicted of a felony were reasonably related to the goal of disarming violent individuals, such laws don’t work. Instead, the person who is bent on committing a violent crime will be just as willing to break a gun control law as they are willing to break the law against murder, rape or robbery.
Taking the matter from one of hypothetical discussion to the real world, I have written about multiple cases in which convicted felons have used guns in self defense, only to be charged for possessing the gun. Some of those individuals have had a happy outcome to their court cases, while others have not. Given the hundreds of comments (exactly 641 as I write this article) that have been posted in the original “Gun Rights for Convicted Felons?” article, it appears that this is an issue that has real-world implications for many people.
My thoughts in 2012
As I write this article, I have spent several years working as an attorney, and have had occasion to handle hundreds of felony cases. I have also had occasion to represent clients who have a previous felony conviction that is completely unrelated to their current legal matter (e.g. a felony conviction from 8 years ago, as I represent them in a divorce case now). Based upon those experiences, I have reached a couple of additional conclusions that I thought might be worth sharing:
Some people plead guilty to felony charges, even when innocent, to avoid the risk of trial. As an example, I had a client who was charged with a very serious felony for his very proper self defense actions, who seriously considered pleading guilty to a plea offer for a lesser felony, to avoid the possible worst-case outcome at trial. That client was found not guilty, and was happy with his decision to go to trial in the end – but it took courage on his part and extensive counseling on my part to get him to proceed to trial, rather than to plead to the lesser felony charge that the prosecution offered. I have heard of many people who made the opposite choice (sadly sometimes at the urging of an attorney who just wants to wrap up the case).
Some people plead guilty to felony charges to get out of jail. As an example, one client of mine was charged with a felony and was in jail awaiting trial. The prosecution made an offer that would have him released from jail that very day, on credit for time served. While I believed he had a good chance of prevailing at trial, and also an excellent chance of receiving a better offer that would not result in a felony conviction, he elected to take the prosecutor’s offer that day – despite my counsel to the contrary. His decision was based primarily on the desire to be out of jail and present for the birth of his child that would occur in a matter of days, while trial was at least a couple months away.
There are also some people who are factually innocent and who were wrongfully convicted despite putting forth best-effort to defend themselves against the charges. Sometimes that conviction is the result of the judge or jury simply reaching the wrong result after a trial. Other convictions are the result of perjury or misconduct on the part of a witness or prosecutor. In still other cases, the wrongful conviction could be the result of the person’s attorney not properly handling the case. Regardless, not every conviction is factually proper. While I generally have confidence in our legal system and am proud to be an attorney, the simple fact is that our legal system is not perfect.
On the flip side of things, there are plenty of people who have factually committed a felony, who are charged with a felony, but who do not get convicted of a felony. In a great many cases, a deal is reached to reduce the charge to a misdemeanor. Or, sometimes the person is able to avoid conviction when the victim retracts their story or requests that the prosecution dismiss the case. There are also cases in which the victim or witnesses move, become defendants themselves, or otherwise cause the prosecution’s case to collapse. In other cases, the attorney is able to get evidence suppressed due to misconduct on the part of the police in obtaining the evidence. Regardless of the reason, a large percentage of felony cases in which a person is factually guilty do not result in a felony conviction. Indeed, while there are not and will likely never be statistics on this issue, I would make the educated guess that for most of the less-serious felony charges, the odds of a felony conviction are much more correlated with who the defendant has for an attorney than whether the defendant is factually guilty or innocent.
For all of those reasons, and others, I am now even more firmly of the opinion that a felony conviction by itself is just not a sufficient justification to forever bar an individual from possessing firearms.
* As an Attorney, I would like to reiterate that nothing I write on this website constitutes legal advice, no attorney-client relationship is formed between readers of this website and myself, and readers are cautioned not to heed “legal advice” offered online by non-lawyers.