Gun violence statistics are a bit cloudy. In 2020, the gun crime rate dropped, but the fatality rate hit a record high. The high gun suicide rate may have something to do with that discrepancy. Only 4 percent of the world’s people live in America. But the United States accounts for 35 percent of the world’s firearm suicides. Understandably, therefore, a lot of people want to restrict gun ownership rights. State laws vary significantly, but there’s only one set of federal gun possession laws. So, it makes sense for these advocates to focus on federal gun laws and weapons charges.
However, there’s a little thing called the Second Amendment that guarantees the right to keep (own) and bear (possess) firearms. Congress may place reasonable time, place, and manner restrictions on Constitutional rights. Especially in this area, one person’s definition of a “reasonable” restriction is usually very different from another.
An effective Rochester gun possession lawyer makes a big difference in this changing environment. Almost literally, what’s illegal one month may be legal the next month, and vice versa. Therefore, some of the specific laws we talk about in this post might be obsolete very soon. However, the general principles, and the underlying defenses, usually remain the same. A Rochester gun possession lawyer can leverage these defenses during the trial or during plea negotiations and secure the best possible result.
Domestic Violence, Protective Orders, and Gun Ownership
Frequently, federal weapons charges have little or nothing to do with current firearm laws. Protective orders routinely strip away gun ownership rights. In other words, a gun that was perfectly legal suddenly becomes as illegal as a kilo of cocaine.
As a preliminary matter, to obtain a protective order in New York, an alleged victim must show the two people have an intimate relationship (usually two people related by blood or marriage, or who have a child together) and the alleged abuser committed a family offense (usually stalking, assault, or harassment).
Even in a temporary protective order, which doesn’t require a hearing, a judge may confiscate the alleged abuser’s guns and revoke his/her license if:
- The judge concludes, based on the alleged victim’s affidavit, there is a “substantial risk” the alleged abuser may use, or threaten to use, a firearm against the applicant or anyone the protective order covers, such as the applicant’s children, or
- During the misconduct, the alleged abuser caused a serious physical injury, used or threatened to use a deadly weapon, or committed a violent felony.
A Rochester gun possession lawyer cannot temporarily stop the judge from issuing such an order. However, at the full hearing, which usually occurs about two weeks after the application is filed, the judge most definitely hears both sides of the story.
Establishing Possession in Deadly Weapons Cases
Federal authorities rarely prosecute individuals for owning illegal firearms unless these firearms are automatic weapons, destructive weapons, or other weapons that violate the National Firearms Act. Illegal gun possession is a different story.
Possession is a term of art that has a specific meaning in state and federal courts. In any illegal possession case, prosecutors must establish three elements beyond a reasonable doubt:
- Proximity: Vehicle cases illustrate the proximity rule. Usually, anything in the passenger area, which includes a car’s trunk and a pickup’s bed, satisfied the proximity requirement.
- Knowledge: If the defendant knew that “something illegal” was under a seat, that’s not enough. The defendant must know that something was a firearm. Since ignorance of the law is no excuse, the defendant doesn’t need to know the firearm was illegal
- Control: Once again, vehicle possession claims are a good example. If Tony was in the back driver’s side seat and an illegal firearm was under the front passenger side seat, prosecutors would be hard pressed to establish control. That’s especially true if someone was in the front passenger side seat.
Many people ask a Rochester gun possession lawyer to create a gun trust to avoid illegal possession issues and avoid any potential weapons charges. The trust, as opposed to the settlor (an individual who created the trust), legally owns the firearm. It’s pretty easy for the trustee, who is usually the same person as the settlor, to add co-trustees.
In plain English, if Tony accidentally leaves his licensed Glock in the car and his wife gets pulled over, if his wife is a co-trustee in a gun trust, gun possession charges against her won’t hold up in court. Roughly the same thing is true if Tony’s hunting buddy comes over for the weekend and needs to borrow one of Tony’s guns.
Contact an Experienced Attorney for Gun Possession Criminal Defense
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester gun possession attorney. Convenient payment plans are available.