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POSSESSION FIREARM BY FELON-HISTORY OF LAW

§ 14-415.1. Possession of firearms, etc., by felon prohibited

    (a) It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in G.S. 14-409.11.

Every person violating the provisions of this section shall be punished as a Class G felon.

(b) Prior convictions which cause disentitlement under this section shall only include:

    (1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995; and

    (2) Repealed by Session Laws 1995, c. 487, s. 3, effective December 1, 1995.

    (3) Violations of criminal laws of other states or of the United States that occur before, on, or after December 1, 1995, and that are substantially similar to the crimes covered in subdivision (1) which are punishable where committed by imprisonment for a term exceeding one year.

When a person is charged under this section, records of prior convictions of any offense, whether in the courts of this State, or in the courts of any other state or of the United States, shall be admissible in evidence for the purpose of proving a violation of this section. The term "conviction" is defined as a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year, as the case may be, is permissible, without regard to the plea entered or to the sentence imposed. A judgment of a conviction of the defendant or a plea of guilty by the defendant to such an offense certified to a superior court of this State from the custodian of records of any state or federal court shall be prima facie evidence of the facts so certified.

(c) The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section. An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.

HISTORY: 1971, c. 954, s. 1; 1973, c. 1196; 1975, c. 870, ss. 1, 2; 1977, c. 1105, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1989, c. 770, s. 3; 1993, c. 539, s. 1245; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 487, s. 3; c. 507, s. 19.

 

 95-2003

Statute              §14-415.1. Possession of firearms, etc., by felon prohibited.

(a) It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).

Every person violating the provisions of this section shall be punished as a Class G felon.

Nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or on his lawful place of business.

(b) Prior convictions which cause disentitlement under this section shall only include:

(1)              Felony convictions in North Carolina that occur before, on, or after December 1, 1995; and

(2)              Repealed by Session Laws 1995, c. 487, s. 3.

(3)              Violations of criminal laws of other states or of the United States that occur before, on, or after December 1, 1995, and that are substantially similar to the crimes covered in subdivision (1) which are punishable where committed by imprisonment for a term exceeding one year.

When a person is charged under this section, records of prior convictions of any offense, whether in the courts of this State, or in the courts of any other state or of the United States, shall be admissible in evidence for the purpose of proving a violation of this section. The term "conviction" is defined as a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year, as the case may be, is permissible, without regard to the plea entered or to the sentence imposed. A judgment of a conviction of the defendant or a plea of guilty by the defendant to such an offense certified to a superior court of this State from the custodian of records of any state or federal court shall be prima facie evidence of the facts so certified.

(c) The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section. An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.

 Pre 95:

  

  1. It shall be unlawful for any person who has been convicted of any crime set out

    In subsection (b) of this section to purchase, own, possess, or have in his custody, care, or control any handgunor other firearm with a barrel length of less than 26 inches

W/I five years of date of conviction or unconditional discharge

Nothing prohibits right to possess fiream in home or place of lawful business

  

Farb on 95-2003:

Elements              A person guilty of this offense

(1)              has previously been convicted of:

              (a)              a felony in North Carolina, or

              (b)              a violation of the criminal law of another state or the United States for an offense substantially similar to one in subdivision (a) and carrying a maximum punishment of more than one year imprisonment, and

(2)              purchases, owns, possesses, or has in his or her custody, care, or control outside his or her own home or place of business

(3)              any handgun, any weapon of mass death and destruction, or any other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches.

Punishment              Class G felony.

Notes              Generally. In 1995 the General Assembly amended this offense, effective for offenses committed on or after December 1, 1995. Felony status invoking the offense was expanded to apply to previous conviction of any felony in North Carolina, or a similar offense in another state or under the federal law (there had been some limits on what felony convictions were covered). More significantly, the legislature repealed the portion of the statute that made this offense only applicable within five years of the date of a covered felony conviction. Effectively, the legislature extended this offense to cover a person convicted of a felony in North Carolina at any point in his or her lifetime. How long ago the felony conviction occurred is no longer relevant.

Element (2). The exception from criminal liability for possession of a firearm in one's own home does not apply to possession of a firearm in the common areas of a motel (83 N.C. App. 529) or an apartment house--such as stairways, halls, and parks (78 N.C. App. 514)--or the yard of a trailer that a person owns but does not live in (121 N.C. App. 355). The state does not have to prove that a defendant was not in his or her home or business; the defendant has the burden of showing that this exception applies (119 N.C. App. 695; 78 N.C. App. 514). There was insufficient evidence to prove that the defendant possessed a firearm located on the console between the driver's and front passenger's seats of a car where the defendant was sitting in the front passenger seat, his wife was driving the car that was registered to the defendant's brother, and the firearm was purchased by and registered to his wife (131 N.C. App. 514).

Element (3). A firearm is a weapon that propels shot, shell, or bullets by the action of an explosion within it (Black's Law Dictionary, p. 648). However, for firearms other than handguns or weapons of mass destruction, the statute applies only to those with a barrel length of less than 18 inches or an overall length of less than 26 inches. Therefore it does not apply to long rifles or long shotguns. Apparently the definition also does not include air rifles or pistols or blank cartridge pistols. The prosecution need not prove the barrel length or overall length of a handgun; these measurement requirements are only elements for possession of other kinds of firearms (83 N.C. App. 529). The firearm must be operable, but if the defendant presents no evidence that it is inoperable, the jury can find that it is operable and convict the defendant (34 N.C. App. 307).

For a definition of a weapon of mass death and destruction, see the statute reproduced under "Manufacture, Possession, etc., of Machine Gun, Sawed-Off Shotgun, or Weapon of Mass Destruction."

Repeal of offense's application for five years after conviction. Historically, this statute had applied to any felon who had not yet had his or her citizenship restored. When the restoration-of-citizenship statutes were changed to make restoration automatic on final discharge from custody, this statute was rewritten to apply for five years after the completion of punishment. Under that version of the law, possession of a firearm after the five-year post-release period had expired was not a crime (935 F.2d 28). Effective for offenses committed on or after December 1, 1995, the date of the pertinent felony conviction is irrelevant. If a person has ever been convicted of a felony under Element (1), this offense bars purchase, ownership, possession, etc. (outside the person's home or business) of any weapon listed in Element (3).

Constitutionality. G.S. 14-415.1, as previously codified, was not unconstitutionally vague, nor did it deny equal protection of the laws (39 N.C. App. 668).

Disposition of seized weapons. G.S. 14-269.1 and G.S. 15-11.1 govern disposition of seized weapons. G.S. 14-269.1 applies to disposition of deadly weapons after a defendant's conviction. G.S. 15-11.1 applies to disposition of other kinds of seized property, which may include non-deadly weapons. However, G.S. 15-11.1(b1) also provides a disposition procedure for firearms. These statutes overlap in applying to firearms that may be deadly weapons within the meaning of G.S. 14-269.1. How they should be applied together is not completely clear.

Similar ban on possession of weapons by insanity acquittees and persons determined to lack capacity to stand trial. G.S. 14-415.3 makes it a Class H felony for a particular class of people to purchase, own, possess, or have in the person's custody, care, or control, any firearm or any weapon of mass death and destruction as defined by G.S. 14-288.8(c). This prohibition applies to (1) a person who has been acquitted by reason of insanity of any offense listed in G.S. 14-415.1(b) [listed under Element (1), above] or any violation of G.S. 14-33(b)(1) (misdemeanor assault with a deadly weapon and assault inflicting serious injury), G.S. 14-33(b)(8) (misdemeanor assault on governmental officer or employee, or company or campus police officer), or G.S. 14-34 (misdemeanor assault by pointing gun); and (2) any person who has been determined to lack capacity to proceed as a criminal defendant in a criminal prosecution by the procedure provided in G.S. 15A-1002 for any of the offenses listed under Element (1). Note that this prohibition applies to a broader set of criminal offenses than "Possession of firearm by felon," including some misdemeanors. G.S. 14-415.3 specifies that weapons confiscated in relation to a violation of this prohibition must be disposed of in accordance with G.S. 15-11.1.

Broader federal firearms statute. A federal statute, 18 U.S.C. § 922(g), prohibits the possession, receipt, or transportation in interstate or foreign commerce of any firearm by a person who has been convicted in any state or federal court of a crime punishable by more than one year's imprisonment. However, 18 U.S.C. § 921(a)(20) excludes from 18 U.S.C. § 922(g)'s coverage conviction of a state offense classified by that state as a misdemeanor and punishable by a maximum of 2 years imprisonment or less; a conviction for certain offenses relating to the regulation of business practices; and a conviction which has been expunged, set aside, or for which the person has been pardoned or has had civil rights restored (see G.S. 13-1), unless the pardon, expungement, or civil rights restoration expressly provides that the person may not ship, transport, possess, or receive firearms.

This federal statute also prohibits the possession, receipt, or transportation in interstate or foreign commerce of any firearm by a person who (1) is subject to a court order such as a civil domestic violence protective order issued under G.S. 50B-3 or (2) has been convicted of a "misdemeanor crime of domestic violence." The term "misdemeanor crime of domestic violence" means a misdemeanor under federal or state law that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by (a) a current or former spouse, parent, or guardian of the victim; (b) a person with whom the victim shares a child in common; or (c) a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim. However, it is not considered a conviction unless the person was represented by counsel in the case or knowingly and intelligently waived the right to counsel. It also is not a conviction if the conviction has been expunged or the person has received a pardon. See 18 U.S.C. § 921(a)(33) for the complete definition of "misdemeanor crime of domestic violence." The statutory firearm prohibition discussed in this paragraph has been found to be constitutional (168 F.3d 718; 209 F.3d 319).

Federal cases have ruled that certificates of civil rights restoration must be interpreted in light of applicable state criminal law prohibitions. So, for example, under the pre-December 1, 1995, version of this offense, it was a violation of federal firearms law for a person to possess a firearm within the five-year period under G.S. 14-415.1, even though his or her civil rights had been restored for a particular felony conviction (904 F.2d 216). Also, a federal court ruled that a defendant properly may be convicted under the federal statute for possessing a firearm in his or her home, although possessing a firearm in one's home is permitted by G.S. 14-415.1, when the defendant's civil rights had not yet been restored under North Carolina state law (119 F.3d 290). Conversely, a certificate restoring civil rights could not deny a person rights he or she had pursuant to state law. Thus, for example, a federal court ruled that a defendant's federal conviction for possession of firearms in his home in violation of 18 U.S.C. § 922(g)(1) was not valid, even though his North Carolina restoration certificate stated he was not entitled to "own, possess, receive, buy, or otherwise acquire firearms of any description," because G.S. 14-415.1 does not prohibit a defendant's possession of a firearm in the defendant's home or place of business (2 F.3d 53). For offenses committed on or after December 1, 1995, the federal firearms law would likely apply no matter when a person's felony conviction occurred.

This federal statute also prohibits the possession, receipt, or transportation in interstate or foreign commerce of any firearm by a person who is a fugitive from justice, is a narcotics user or addict, has been adjudged mentally defective or has been committed to a mental institution, is an illegal alien, has been dishonorably discharged from the armed forces, or has renounced United States citizenship.

"Firearm" in 18 U.S.C. § 921(a)(3) is defined to include "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or silencer; or any destructive device," with the exception of antique firearms. Note that this federal law is broader than G.S. 14-415.1; it includes all firearms (handguns, rifles, shotguns, etc.) with no restrictions as to barrel length, and there is no time limit on its prohibition of firearm possession by convicted felons. However, a convicted felon can obtain relief from the federal prohibitions by applying under 18 U.S.C. § 925(c) to the Secretary of the Treasury for permission to possess firearms; this is done by applying to the Alcohol, Tobacco, and Firearms Bureau (ATF) of the U.S. Treasury Department. Note that no such relief is possible with the prohibition imposed by G.S. 14-415.1.

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