Felon in possession of a firearm

US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Another instructive case is US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Balanga argued on appeal that there was insufficient evidence to support his conviction for being in possession of a .22 caliber rifle and ammunition found in his basement. Balanga argued that he did not possess a key to his basement door's padlock while another person stored a rifle and ammunition in Balanga's basement. Balanga admitted that he knew of the .22 caliber rifle and the ammunition that was stored in his basement, but argued that because he did not have a key to the basement, he did not have access to the rifle and the ammunition, and therefore did not possess them. The court disagreed, finding that to convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control over the firearms or dominion over the premises'" where the firearms were stored. The court ruled that, "In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key." So, the mere presence of a firearm in the home of a convicted felon (where he has "dominion") will raise a presumption that he is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that he had no access whatsoever to the firearm. From the cases, this appears to be a very heavy burden. Finally, note also that the wife who allows her convicted felon husband to possess the firearm is also guilty of a federal felony under 18 USC 922(d). Transfers of firearms to any prohibited persons is unlawful under federal law.

Felony set aside:

I receive many inquiries about laws pertaining to firearms and other weapons and am using today's column to respond to one that I've received anonymously as well as to others of general interest. The anonymous inquiry concerns the effect of felony convictions on one's ability to possess firearms and this is a complex subject due to the interaction of state and federal law. Under Michigan law a felony conviction will indeed disable a citizen from possessing firearms, but only if it carries a maximum penalty of 4 years or more, and there are actually a number of 2 year felonies such as Criminal Sexual Conduct 4th Degree, Domestic Violence 3rd, Negligent Homicide, Resisting and Obstructing, Fleeing and Eluding 4th Degree, Joyriding, etc. Federal law, however, extends the same disability to 2-year felonies. Whether these disabilities are permanent currently depends on whether such convictions are set aside. Michigan law does provide for the restoration of rights to possess firearms following felony convictions. For some felonies, primarily property crimes, restoration is automatic upon the expiration of 3 years following the completion of all sentencing terms, which includes all probation or parole. For other felonies, primarily assaultive crimes and those involving controlled substances, weapons and home invasions, restoration is unavailable until 5 years post-sentence and can only be accomplished by application to the county concealed weapons licensing board, or gun board for short. Restorations pursuant to Michigan law are misleading, however, because they do not satisfy federal law. Federal law prohibits convicted felons from possessing firearms unless they've had their convictions set aside OR had their civil rights fully restored, AND are not subject to any state firearms restrictions.

And, Michigan law as of October 1, 2003 disqualifies convicted felons from jury service, meaning that this civil right is no longer restored post-sentence, as is the case with the rights to vote and hold public office, and as of July 1, 2001 makes convicted felons permanently ineligible to receive a concealed pistol permit, meaning that they are subject to a state firearm restriction regardless of whether they even apply for a concealed pistol permit; a recent Attorney General opinion concluded that persons who have had their convictions set aside are eligible for concealed pistol permits, however, restorations are insufficient for that purpose because they do not erase the conviction. This leaves us with the following situation: if you have a prior felony conviction and have had your right to possess firearms restored under Michigan law, your possession of firearms will still be a violation of federal law both because you haven't had your civil rights fully restored and you remain subject to a state firearm restriction.

It should be noted that federal prosecutions would have to be predicated on a connection to interstate commerce, however, it is difficult to imagine a firearm without the required nexus to interstate commence resulting from its manufacture and/or subsequent history such proofs pertain to the firearm and not the possessor. So, the bottom line is that while either the setting aside of your felony conviction or the restoration of your right to possess firearms will bring you into compliance with Michigan law, only a set aside will enable you to possess firearms under federal law. Still unresolved is the status of persons who were eligible for or in fact received a restoration prior to the recent changes in Michigan law. It should also be remembered by everyone, regardless of their eligibility to possess firearms or to obtain a concealed pistol permit, that the crime of carrying concealed weapons involves more than handguns. Many knives are unlawful to carry concealed or in a vehicle, including especially double-edged non-folding knives regardless of length. Other items such as fully automatic firearms, silencers, brass knuckles, tear gas, tasers, etc. are unlawful to possess at all and still other items are not regarded as weapons unless used as such or carried with the intent to use them as such. Since state law makes county prosecutors the chair of their county's gun board, I'm also frequently asked where I stand on gun control. I am not passionately aligned with either side but I believe that the constitution should be strictly construed. I also applauded the removal of most discretion from gun boards in 2001, because the policies of gun boards had varied dramatically from county to county and disparate treatment of similarly situated individuals is always offensive. The number of concealed pistol permits being issued has led to increased concerns for officer safety, however, so citizens with such permits should take very seriously their legal obligation to immediately inform police officers who have initiated a traffic stop that they are in possession of a weapon pursuant to a concealed pistol permit.